I must dissent from the opinion in this case. While I have my doubts upon the proposition that it was a question of fact for the jury to determine, whether the defendants had performed their duty to provide a reasonably safe place for the plaintiff to work in, and am inclined to think that the latter assumed the risk of the situation, I, nevertheless, shall not dissent upon that ground. I think that it was error to admit the opinion evidence, which was given by the civil engineer. The opinion of Judge O'BRIEN is misleading in its discussion of that question, in so far as the situation is concerned which the facts revealed. It is evident from that opinion that the learned judge is impressed with the idea that the danger of the place, in which the plaintiff was at work, was connected with the work of underpinning the chimney stack; whereas, in fact, it was not.
The facts are briefly these: that, while preparing for the foundation of a building to be erected by them for the Albany water works, the defendants excavated a deep trench, within some twelve feet of a chimney stack, about 112 feet in height, and at a depth greater than that of the foundation of the chimney, by eleven feet. In order that that foundation might be strengthened and supported by an underpinning, or piers of masonry, they made a number of tunnels, or cuts, through the earth, from the trench to points under the chimney foundation, and as each tunnel was made the pier was constructed therein. These tunnels were irregularly arched and not shored *Page 600 up, or braced by timbers. The soil was of the nature of "hardpan," which is dissolved, or disintegrated, by the action of water. For some time previous to the occurrence in question, water had been observed trickling upon, and spreading over, the ground between the chimney and the trench, and to its loosening effect upon the soil was attributed the falling in of the earth of the tunnel in which the plaintiff was working. The plaintiff had been ordered to go into one of the tunnels and to level off the bottom, preparatory to the building of the pier. While working there, according to his evidence, he observed water dripping upon him from overhead. Shortly after he had commenced to work, the earth from the top and from the north side of the tunnel fell upon him and produced the injuries complained of. There is nothing in the evidence to show, and it is not claimed, that the fall of the earth was due to any other cause than the loosening, or disintegrating, of the soil through the action, or the percolation, of the water from above. Indeed, the cause of the falling of the earth is stated in the respondent's brief to have been "by reason of this running water eating its way through the ledge just north of the irregular arch on the north side of the hole causing it to become loosened from the adjoining mass and fall by its own weight." Questions concerning the construction of an underpinning for the chimney foundation and the manner of proceeding therewith had nothing to do with the issue. The jurors had the evidence very fully before them of the facts which had been observed by witnesses, relating to the nature of the soil, to the continuous trickling of water upon, and its percolation through, and its effect upon, the soil and to the manner in which the cut, or tunnel, through the ledge, or bank, of earth from the trench was made. The evidence showed, for instance, that while the trench, or main excavation itself, was braced with timbers, the tunnel had not been treated in the same manner, and that what had been deemed sufficient for its temporary protection was to arch it over. The situation was a very simple one and was clearly exposed by the evidence, and I am quite unable to see what question *Page 601 of science, or of a nature beyond the apprehension of the lay mind, was involved in the determination of the issue, which justified, or made necessary, the admission of opinion evidence. The hypothetical question upon the facts, which was put by the plaintiff's counsel to the witness, a civil engineer, concluded with the inquiry concerning the place where the plaintiff had been working, whether, in his opinion, he would say "that was a proper method of constructing that hole for the purpose of underpinning that foundation?" The witness was permitted to answer that question, over the objection of the defendants' counsel, and then, on the same assumed state of facts, the following question was asked: "How, in your opinion, ought that excavation to have been made so as to be safe for persons working in the bottom of the same." This question was also objected to, but the objection was overruled, and the exceptions to these rulings raised the serious question in the case.
The prevailing opinion is misleading in conveying the impression that this opinion evidence was proper and necessary by reason of the problem presented of underpinning this chimney stack, and authorities are cited to support the view that the opinions of persons, who have made especial study of the strength of materials, or of the proper mode of building structures to sustain weight, or of questions concerning structural or architectural strength, are proper. The authorities, however, are not applicable to such a commonplace and everyday state of facts as that which this case presented. There was nothing in question here but the making of a temporary hole, or tunnel, through a ledge of earth. Under the circumstances detailed, there was nothing which necessitated the opinion of a civil engineer, or of any expert in difficult construction work, in order that the jurors might comprehend the question, and without which they would be incompetent to draw their conclusions. It cannot, reasonably, be said that the description of this hole, or tunnel dug in the earth, would have conveyed an imperfect idea of its safety. Extensions of the rule which permits of opinion evidence are not to be favored. *Page 602 The general rule, as to the admissibility of such evidence, is that persons having technical or peculiar knowledge upon certain subjects are allowed to give their opinions, when the question involved is such that the jurors are incompetent to draw their own conclusions from the facts, without the aid of such evidence. (12 Am. Eng. Encyc. Law [2d ed.], 432.) In the language of Judge EARL, in the case of Ferguson v. Hubbell (97 N.Y. 507), "Where the facts can be placed before a jury and they are of such a nature that jurors, generally, are just as competent to form opinions in reference to them and draw inferences from them, as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses, or to be as capable to draw conclusions from them, as some witnesses might be; but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them and comprehend them sufficiently for the ordinary administration of justice." To hold that the opinion evidence, in this case, was properly admitted, in my judgment, is to make a wide departure from the rule and may create a troublesome precedent in the future. I think that the jurors were quite competent to understand the facts about this every day occurrence of tunneling through the ground and to decide the issue between the parties upon their own judgments. It is impossible to say that the admission of this opinion evidence may not have prejudiced the defendants, and, for the error committed in that respect, I think that the judgment should be reversed and that a new trial should be ordered, with costs to abide the event.
HAIGHT, CULLEN and WERNER, JJ., concur with O'BRIEN, J., for affirmance; PARKER, Ch. J., concurs with GRAY, J., for reversal; LANDON, J., not sitting.
Judgment affirmed. *Page 603