The instruction to the jury that the negligence
of the driver of the tender might be imputed to the plaintiff was erroneous (Lewin v. Lehigh Valley R. R. Co., 41 App. Div. 89), but as the defendant could not be harmed thereby, it need not receive further consideration. The judgment must be reversed, however, for error committed in allowing the witness Nott to express an opinion as to whether the defendant’s car, or the tender, could have first crossed the point of intersection where the collision occurred. This bore directly upon the vital question in the case, and was not a subject requiring or permitting the expression of expert skill or knowledge. Dougherty v. Milliken, 163 N. Y. 527. The respondent admits that there was a sharp conflict in the evidence, and, under the circumstances, we think that the admission of this testimony over defendant’s objection and exception was prejudicial. The witness was thereby permitted to encroach upon the province of the jury, and being an eye-witness of .the occurrence, his opinion, improperly received, may have unduly impressed the jury in deciding the issues in controversy.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
Beekman, P. J., and Gibgbbioh, J., concur.
Judgment revemed and new trial ordered, with costs to the appellant to abide the event.