McDonald v. State

• Decision Date: 21 April 1891
• Citation: 127 N.Y. 18,27 N.E. 358
• Parties: McDONALD v. STATE. EASTMAN v. SAME.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 18

27 N.E. 358

McDONALD

v.STATE.

EASTMAN

v.SAME.

Court of Appeals of New York,

Second Division.

April 21, 1891.

Appeal from final orders of the board of claims rejecting claims of the appellants. In April, 1881, the state built an iron bridge over the Champlain canal, in the village of Ft. Ann. The planks of each panel were supported by eight pine stringers, 3 inches thick, and 11 1/2 inches wide, resting on needle beams. The ends or bearings of the stringers were but 10 inches in width, and in September of that year they were, in some of the panels, reduced to 5 inches in width, so as to diminish the grade of the bridge. It was testified in behalf of the state that when this was done the number of stringers in the panels, the grandes of which were reduced, were doubled. The bridge remained in this condition until April 15, 1886, when the claimants attempted to roll over it two mill-stones, weighing 11,250 pounds, united by an axletree so short that they were but 21 inches apart. When part way over the bridge, one of its panels gave way, and the claimants fell to the bottom of the canal, a distance of about 20 feet, and were severely injured. They filed claims for their damages, alleging that the bridge was negligently constructed and maintained, and that they did not by their own negligence cause, in whole or in part, the accident. The board of claims, in deciding the case, refused to find that the employes of the state were negligent in the construction or care of the bridge, and found affirmatively that the claimants negligently caused the accident, and dismissed their claims. From this decision the claimants appeal, specifying in their notices, among other grounds: ‘(1) The board of claims erred in receiving evidence against the objections and exceptions of the claimants.’

L. H. Northrup, for appellants.

Charles F. Tabor, Atty. Gen., for the State.

FOLLETT, C. J., ( after stating the facts as above.)

Oliver Thomas, who reduced the bearings of the stringers, was called as a witness in behalf of the state, and was asked: ‘Question. Now, with what you did to these stringers of this bridge, did you leave it in your judgment safe for the ordinary uses of a highway bridge? Objected to, on the ground that the witness is not shown competent to give an opinion with reference to the bridge, and it is immaterial whether, in his judgment, he left it safe or not.’ This objection was overruled, the claimants excepted, and the witness answered that he did. In effect, the witness was permitted to testify that the employes of the state were not negligent in making the change; that the bridge, as changed, was safe ‘for the ordinary uses of a highway bridge;’ and he was thereby permitted to determine whether the state or its employes were negligent, which was an issue to be decided by the board. Again, it does not follow that a bridge which was ‘safe for the ordinary uses of a highway bridge’ was sufficient to sustain the traffic in that particular place.

A civil engineer and bridge builder was asked by the counsel for the state whether, in his judgment, stones of...