I deem it proper in this case to present the grounds of my dissent from the opinion of the majority of the court. Passing the verdict found by the jury and assuming that it must be approved by this court, though it practically rests upon the theory that water of a running stream proceeding from a water-shed of uplands and brooks, and flowing along a well-defined and ancient channel, has been drawn to the points of driven wells or tubes of iron with small openings in the lower end of the same and inserted in the earth to the depth of thirty feet below and one hundred and fifty feet one side of the channel, or in other words, that water without obstruction to pursue its wonted channel to a lower level, may be diverted or drawn through solid earth twenty-five feet deep and one hundred and fifty feet wide to the vacuums in the small tubes produced by the machinery *Page 435 with which the tubes are connected. It may be, and I am not intending to maintain here, that this court can review or question the omniscient (humanly speaking) verdict of a jury in respect to the existence and operation of the laws of nature. I assume that common or judicial notice of the laws of nature must stand silent in the sacred presence of a verdict of a jury. But while such may be the situation in respect to the power of this court over the finding of a jury, I maintain that it is the duty of this court to see that the minds of the jury are properly informed by any legitimate means before rendering a verdict which shall irrevocably fix the rights of the parties, and especially in a case involving the laws of nature and their operation in respect to waters percolating the earth and the application of machinery to overcome or to modify their operations, and this brings me to the consideration of the question which separates me from a majority of my brethern.
There is but one question to be considered upon this appeal. That question is whether a witness conceded to be an expert by the ground of the objection, and who examined the stream in question and its origin and the lands from and through which it flows and who devised and erected the machinery connected with the driven wells, and has had fifteen years experience in sinking and operating this species of wells, may be allowed to express his opinion to an ordinary jury impaneled to try the question whether the main body of such stream has been withdrawn by means of these wells; or in the language of the question which the learned trial court overruled viz: "Was it possible for you to take in those pipes any water out of Spring creek?"
No one will deny that the general rule is that testimony can relate merely to facts, and that inferences from them are to be made by the jury. (Lawson's Expert and Opinion Evidence, 200.)
But this general rule has been broken in upon by the admission of various classes of exceptions, resting upon the common ground of necessity. (Id.) "Such necessity is allowed to exist where the facts in issue are not themselves accessible by evidence, *Page 436 being either future probabilities or mere contingencies or else actual facts, but not within positive knowledge. All of these must, of necessity, be judged of only from other proved facts known generally to accompany or to indicate those in question, as for instance, where the facts to be ascertained are inferred from some rule or art or science or observed law of nature thus proved; the knowledge by which the existence of the unknown fact is inferred from the one proved, may not fall within the range of ordinary information, but may be proved by professional or experienced witnesses having peculiar skill in some art, trade, or science relating to the subject. Thus the fact of certain appearances in a dead body having been proved, the subsequent question whether such appearances indicate poison, is wholly out of the power of the best informed men to determine, unless they had made such subject a previous study. Again, the market-value of an article at a given time, upon the allowance of damages on which a jury has to pass, is frequently a question such as dealers in that article can alone decide. There it is a matter of necessity to call in the experienced or instructed opinion of such witnesses. No proof of the naked state of facts as to a ship after a storm could perhaps enable a landsman, however intelligent, to judge of those necessities which are so often to be inquired into in marine contracts. Thus, also, in an action for negligently steering a ship as in Malton v. Nesbit, mere proof of the naked facts could not enable a jury of landsmen to draw any inference; and experienced nautical men are called in to prove whether facts of that kind amount to unjustifiable negligence. Opinion is admitted when a jury is incompetent to infer without the aid of greater skill than their own, as to the probable existence of the facts to be ascertained, or the likelihood of their occurring from the facts actually proved before them. Indeed, it would be more logically accurate to say that mere opinions even of men, professional or expert, is not admissible as such; but that facts having been proved, men skilled in such matters may be admitted to prove the existence of mere general facts or laws of nature, or the course of business as the *Page 437 case may be, so as to enable the jury to form an inference for themselves. Thus the existence of certain appearances in the dead body having been proved, the chemist testifies that such appearances invaribly or generally indicate the operation of some powerful chemical agent. His scientific opinion is, in fact, his testimony to a law of nature. All these are testimonies to general facts which the jury can ascertain in no other way, and which, when proved, afford them the means of drawing their own conclusions from the whole mass of testimony taken together. The same reason of absolute necessity has compelled the admission of evidence of opinion in certain cases where the poverty of human language makes it absolutely impossible to separate in words the minute and transient facts observed by the witnesses from the inference as to some other fact, irrestisibly connected with the former in his own mind. Testimony as to handwriting, I think, resolves itself into this, as no words can freely convey to others the minute particularities on which such judgment is founded. So, too, in questions of identity as to men, to goods, horses, etc., though the facts on which judgment is founded may be partially stated, still the judgment of opinion is admitted. In these cases the witness swears as to the present conviction in his own mind as to an actual fact, though deduced from circumstances which cannot be made palpable to others. It is often difficult to draw a line of distinction between testimony to simple facts and the statement of such immediate and conclusive inferences as the witness forms in his own mind." And hence general physical facts or truths not known to the common mind and not apprehensible by the senses at single or casual observation, may be shown by one who has knowledge or skill or experience, an expert, to aid the jury in the ascertainment of the truth.
Lawson, in his work upon expert and opinion evidence, cites numerous cases which illustrate the line of distinction applicable to various subjects and situations where opinion evidence may, and where it may not be received. (1 Car. P. 76;Folkes v. Chadd, 3 Dougl. 157; 1 Phillips on Ev. 778;Goodtitle v. Braham, 4 T.R. 498; Price v. Powell, *Page 438 3 N Y 322; Detweiler v. Groff, 10 Penn. St. 377; Buffum v.Harris, 5 R.I. 243; Hand v. Inhabitants of Brookline,126 Mass. 324.)
The cases in which it may be properly received are embraced in the language of the opinions of the different judges similar to that employed in the text of Lawson, supra.
Judge DANFORTH, in Scattergood v. Wood (79 N.Y. 266), states the rule as follows; "The inquiry related to a matter which was not the subject of general knowledge, but depended on facts which, from their nature, it would be difficult, if not impossible, to place before the referee, and the statement embodied in the opinion given in evidence was itself a fact derived from peculiar knowledge and skill in the use of the various machines referred to. It was the result of professional knowledge and practical experience (Emerson v. Lowell GasLight Co., 6 Allen, 146), and the question raised by the warranty could hardly be answered except by the direct opinion of those who, possessing this superior knowledge and experience, had seen the machines in operation or knew the merits of machines constructed under the plaintiff's patent, and others then in use. Upon this ground, therefore, as well as the one first stated, I think the evidence objected to was properly received. In Smith v. Gugerty (4 Barb. 625) the court says: "The witness was asked his opinion as an expert. The question is competent and proper when it relates to a deduction from facts concerning which the witness has a knowledge peculiar to his science, art or profession, and which is not common to the world. In such cases the jury are unable to draw a correct conclusion from the facts, and must necessarily rely upon the opinions of those who are better enabled to do so by their professional experience. * * * The requisite knowledge is confined principally, if not wholly, to the class of mechanics to which the witness belonged. That brings it within the rule." Judge ALLEN, in Baird v. Daly (68 N.Y. 551), says: "It was competent for the defendant, and he should have been permitted to show by the witness Hays that the scow was unseaworthy; that is, unfitted and unsafe for *Page 439 the service in which she was engaged, and unsafe to be taken in tow. The jury were non-experts, and with every fact which would enable a skilled man to determine the question of seaworthiness, it by no means follows that they would make the proper inference and arrive at a correct conclusion."
Judge EARL said, in Ferguson v. Hubbell (97 N.Y. 513): "Witnesses who are skilled in any science, art, trade or occupation may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed, from their experience and study, to have peculiar knowledge upon the subject of inquiry which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts, and to base opinions upon them, than jurors generally are presumed to be. Opinions are also allowed in some cases where, from the nature of the matter under investigation, the facts cannot be adequately placed before the jury so as to impress their minds as they impress the minds of a competent, skilled observer, and where the facts cannot be stated or described in such language as will enable persons not eye-witnesses to form an accurate judgment in regard to them, and no better evidence than such opinion is attainable." And Judge BRADLEY used language of similar import in Schwander v.Birge, quoted in the opinion of my brother BROWN in this case. But while the language used in the last two cases cited lays down the rule of the admissibility of opinion evidence in certain cases, they hold that the cases then under consideration did not admit of such evidence, and the reasons for so holding in those cases are, in my judgment, entirely decisive of the admissibility of the evidence excluded in this case.
In the case under consideration the device itself, the laws of nature involved in its operation and the manner of utilizing those laws in the supply of water at a particular point, is novel and unknown, if not a mystery to the common mind of the ordinary juror. Whether the water flows to the openings in the tubes solely through the law of gravity and the mobility of the water, or is drawn to those points by atmospheric pressure; *Page 440 whether there is a power applied to produce a vacuum and to obtain the pressure of the atmosphere, how such power, if employed, is applied, and the measure and limits of such power, and the regulation of the machinery or means of exerting and applying such power; or if some other power than this is employed to transfer the water from the stream into the tubes, what such other power is, and how, it is applied to the works, and whatever the power may be that is employed for the purpose, what its strength and efficiency are, and whether sufficient to draw water the distance and through and along the strata of subterranean soils that exist in this case. All these, and doubtless many other conditions are involved in the practical working of driven wells, and the proper solution of the question to be determined by the jury in this case. These principles and conditions are only known to, or can be appreciated or applied by men of science and experience. They were not proved in this case, and if an attempt had been made to prove them by witnesses, it would have been quite impossible to have communicated to the jury, or for the jury to have rightly apprehended and to have properly applied them to the question upon trial.
This case, it seems to me, very plainly belongs to that class which is described in the language of Judges EARL and BRADLEY above quoted as allowing, if not requiring, opinion evidence, and not to that class of cases in which those learned judges held this species of evidence not to be admissible. Those cases wereFerguson v. Hubbell and Schwander v. Birge (supra). The former of these cases was an action to recover the damages which plaintiff has sustained in consequence of the negligence of the defendant in setting fire to his fallow, and thus burning plaintiff's house and barn.
After testimony had been given by various witnesses in relation to the condition of the land, the state of the weather, and of the wind and various other circumstances surrounding the fire, the defendant in his own behalf testified that he was a farmer and had himself, and had seen others clear land, was asked, "What do you say as to whether or not as to that *Page 441 time the fires were set there at that place, it was a proper time in your judgment for burning log heaps on a fallow that had been burned over?" The question was objected to and the objection was overruled and the answer received. The General Term affirmed the ruling but the Court of Appeals reversed the same. Judge EARL wrote the opinion and in the opinion used the hereinbefore quoted language indicating in what class of cases opinion evidence is proper, and distinguishing the case then under consideration from that class by the use of the following language: "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."
Judge EARL also refers to similar case, Fraser v. Tupper (29 Vt. 409) and Higgins v. Dewey (107 Mass. 494), decided in the same way and upon same grounds.
The case Schwander v. Birge (46 Hun, 67) was an action to recover the loss sustained by the plaintiff for the negligence of the defendant in so constructing his building or factory, that the plaintiff's intestate, who was an employee of the defendant, could not escape from the fire which consumed the building. The plaintiff's intestate was upon the fifth floor of the building when the fire was discovered in the lower part of the building. The length, height and structure, including hallways, doors of egress to the roof and adjoining buildings, etc., etc., were proven.
After this evidence, a witness in behalf of defendant was *Page 442 asked this question: "Was that, in your judgment, a proper and sufficient mode of access and egress from the building under any circumstances that might occur?" The question was allowed and answered over an exception and the plaintiff had a recovery. The General Term reversed the judgment, holding that the question was improper. Judge BRADLEY, writing the opinion at General Term, held that the case did not fall within the class admitting opinion evidence in the language hereinbefore quoted, for the reasons stated in the following language: "And it is difficult to see that it came within the rule permitting the opinions of experts. This building was 161 feet in length and forty-seven feet in width, and the evidence tends to show that the room occupied the entire space on that floor between the outer walls. The location of the stairs and door, the distance from them to remote parts of the room could be stated and complete description of the room given so as to convey to the jury an intelligent understanding of the situation. And when that can be done the rule requires that the testimony of witnesses shall be confined to a statement of the facts, and that the conclusions or opinions of witnesses be not permitted as evidence."
I have thus far considered the main, if not the only question in this case. There is no occasion to consider any other, for it is conceded, in the opinion of the majority of my brethren, that the witness was an expert and was conceded by the ground of the objection to his evidence to be an expert. (Schwander v.Birge, 46 Hun, 68; Stevens v. Brennan, 79 N.Y. 255.) Nor that the question proposed to the witness was or was quite near to the question to be decided by the jury. (Curtis v. Gokey,68 N.Y. 426; Transportation Line v. Hope, 95 U.S. 297), and other cases cited in opinion of Brother BROWN in this case.
Some criticism is made in that opinion in relation to the form and point of the question asked, "whether it was possible for the pumps to draw the water from the creek?" and that a negative answer to it would not have explained the disappearance of the stream. While that is quite true, I do not perceive *Page 443 that the defendant was bound to account for its disappearance any further than to show that it was not caused by the driven wells. That was the charge plaintiff made and his sole grievance against the defendant, and that was all that devolved upon the defendant to deny or disprove. The defendant was not bound to account for all natural or unnatural phenomena in relation to the water of this creek, under a penalty of $6,000 and costs of suit for its failure to do so.
I think the order or judgment of the General Term should be affirmed with costs.
All concur with BROWN, J., except FOLLETT, Ch. J., POTTER and HAIGHT, JJ., dissenting.
Order reversed and judgment affirmed.