FIFTH DEPARTMENT, OCTOBER TERM, 1884.

excepted. This, we are also of the opinion, was error.

Evidence was given on the part of the defense tending to show that the plaintiff had on different occasions purchased beer and other liquors for and in company with her husband. It is true that this was controverted by the plaintiff, but it became a question of fact for the jury and it can hardly be claimed that the plaintiff would be entitled to recover damages for the intoxication of her husband produced from liquor which she herself had procured and furnished to him.

"We are of the opinion that the judgment and order should be reversed and a new trial ordered in the Steuben County Court, and that the costs should abide the event."

A. S. Kendall, for the appellant.

Francis A. Williams, for the respondent.

Opinion by HAIGHT, J.; SMITH, P. J., and BARKER, J., concurred; BRADLEY, J., not sitting.

Judgment and order reversed and new trial ordered in the Steuben County Court, costs to abide the event.

34 130

76 184

NILES CASE, RESPONDENT, V. FRANK PEREW, APPELLant.

Orty ordinance requiring a boat to keep a light out — failure to keep the light constitutes negligence—it cannot be shown that it was the custom not to comply with the ordinance.

APPEAL from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered in the Erie County Court, and from an order denying a motion for a new trial.

The action was brought to recover damages sustained by the plaintiff in consequence of the defendant's propeller running into and injuring the plaintiff's canal boat in the harbor of Buffalo creek.

The court at General Term, after holding that an error had been made in the admission of certain evidence upon the trial, said: "The harbor of Buffalo creek is within the limits of the city of Buffalo and is declared to be a public highway, and the common council are vested with the authority to widen, straighten or enlarge the same and are authorized to regulate and alter the wharves, piers,

FIFTH DEPARTMENT, OCTOBER TERM, 1884.

docks, canals and slips in the said city, and have also power to regulate and control the mode and manner of navigating the same. (City charter, chap. 519, Laws of 1870, tit. 8, §§ 1, 19.)

"The common council passed an ordinance requiring 'canal boats to keep an out-port and conspicuous light,' and gave a penalty for refusing so to do. With the view of establishing the plaintiff's negligence which contributed to the injury, as the defendant claimed, the defendant gave evidence establishing, or at least tending to establish, that the men in charge of the plaintiff's canal boat did not observe this ordinance. The plaintiff was permitted to prove, over the defendant's exception, that it was not the custom of canal boats to conform to the requirements of the ordinance by exhibiting the light required.

"The omission of other parties to observe this ordinance is no legal excuse for the plaintiff in omitting to comply with its requirements. If the plaintiff failed to keep the out-port light as required by the ordinance it tended to prove negligence on his part, and the receipt of the evidence objected to was practically a ruling by the court, and the jury must have so understood it, as excusing the plaintiff's violation of the ordinance, if there was in fact an omission to display the light required by the ordinance."

James M. Humphrey, for the appellant.

Williams & Potter, for the respondent.

Opinion by BARker, J.

Present-SMITH, P. J., BARKER, BRADLEY and HAIGHT, JJ. Judgment and order reversed and new trial ordered in Erie County Court, costs to abide event.

FIFTH DEPARTMENT, OCTOBER TERM, 1884.

CALVIN AMADON, APPELLANT, v. HERMAN V. INGERSOLL, RESPONDENT.

Evidence - opinion of a witness, when it is admissible — the grounds of an objection to its competency must be specifically stated.

APPEAL by the plaintiff from an order of the Cattaraugus Special Term denying a motion for a new trial made upon a case and exceptions.

The plaintiff sustained an injury by the falling of a highway bridge in the town of Leon, county of Cattaraugus, which he alleged was occasioned by the negligence of the defendant, who was commissioner of highways of the town. The defendant had a verdict at the circuit.

The defendant was a commissioner of highways of the town at the time of the accident. On 15th May, 1879, the plaintiff drove a team of four horses, drawing a wagon loaded with a steam boiler, weighing 6,000 pounds, on to the bridge in question, and some of the stringers >upporting it gave way and the bridge fell, and the wagon and boiler went down with it. The plaintiff received some personal injury and the owner of the team, wagon and boiler was damaged somewhat in his property. The latter assigned his claim to the plaintiff, who includedit with his own, for such personal injury, in the causes of action alleged in the complaint.

The bridge had been erected several years before. It was a single span of about forty feet in length, supported by six stringers resting on abutments at each end, and extending across the stream, and plank were laid on and crosswise the stringers, making a bridge twelve feet wide; and, as an additional support, braces were erected on the two outer stringers, supported in and extending from near ends of them respectively, and coming together in the line of and a few feet above them. The evidence on the part of the plaintiff tended to prove that in September, 1878, the bridge had become weakened by reason of the braces getting loose and rotten, so that it would spring under heavy loads; that the defendant was then notified that the bridge was out of repair, and needed repair to render it safe for passage with teams; that the defendant then examined its condition, took up the plank, examined the

FIFTH DEPARTMENT, OCTOBER TERM, 1884.

stringers, concluded not to put in new stringers, and expressed the opinion that the old ones would last a while longer, but the defendant did put in new braces in the manner before described, which came together on each side of and at the middle of the bridge, over the outer stringers respectively and at an elevation of three feet, and through and from each junction of the braces he put and supported an iron rod, extending through the stringers beneath, and to the rod was attached, and supported by it, a needle beam, extending crosswise and beneath and in support of the stringers, giving additional strength and firmness to the bridge.

The plaintiff also gave evidence tending to prove that some of the stringers were then impaired by a dry rot. On the part of the defendant evidence was given by him, and those with him, when the bridge was examined and repaired (as before mentioned), tending to prove that the stringers were examined and tested by cutting and boring into them; that while they were not entirely sound they were not rotten; that they were apparently sound; that some of them on top where the plank rested, for an inch in depth, were a little dozy, powder posted, powder rot or dry rot," but beyond that sound, and when struck into with an axe would split up.

The plaintiff added evidence tending to prove that when the bridge broke down the stringers were decayed by a dry rot, except a little in the center that was sound; that they were beech timber, and the expense of putting in new ones would have been twelve dollars.

The defendant's counsel asked one witness who was present in September, 1878, and assisted the defendant in making the examination and reparation of the bridge, the question, "Did you, from your examination of the bridge stringers, consider them sufficient?" And another witness also then there, and in like manner assisting, the question, "Did you consider the stringers at that time suitable and sound for that purpose?" And to the defendant he put the question, "Did you consider these stringers sound and suitable for that bridge?"

The plaintiff's counsel objected to those questions respectively, without stating any ground of the objection.

The objections were overruled by the court and exceptions severally taken, and the witnesses answered all of them in the affirmative.

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The court at General Term said: "It must be assumed that the witnesses were qualified to give their opinions if such evidence was competent. (Cushman v. U. S. Life Ins. Co., 70 N. Y., 73; Stevens v. Brennan, 79 id., 255.) The rule which excludes opinions of skilled persons is confined to matters of which the jury, on a statement of facts relating to the subject, are so advised as to be equally as competent as any witness to declare a conclusion. It is, therefore, where no skill peculiar to any class of persons is required in the determination of a matter of fact involved in a controversy that the testimony of witnesses is confined to a relation of facts, and is not permitted to announce any conclusion or opinion.

"The line between opinions permissible and not so, is not an arbitrary one, limited to any class of cases, but is based on the principle which distinguishes between questions that are and are not common to the understanding of all persons of ordinary intelligence or which may or may not become so by information of the facts upon which any particular conclusion of fact must be founded. (Clark v. Bruce, 12 Hun, 274.)

"In this instance there was a bridge, of which timber stringers of certain size forty feet in length constituted a part, in the condition they were, supported by the braces, needle-beam and iron bolt or rod in the manner before mentioned. The plan of construction was involved in the consideration of the strength of the structure and its several parts, and in reference to the whole the question was one of judgment whether the bridge was suitable and sufficient for the purpose designed, or whether the stringers themselves in the structure were so. This would seem to require some calculation and the judgment of skilled persons; those whose knowledge was peculiar to that sort of erections made to bear weight. These six stringers occupied parallel lines, separated equal distances in a width of twelve feet, and the sufficiency of them depended upon their united power of resistance under the various circumstances to which the pressure of weight, by use of the bridge, might be applied.

"The opinions of the witnesses in respect to the stringers, it will be assumed, had reference to them in their relation to, and connection with, the structure and its plan as a whole, and in view of their purpose in it. And it seems difficult to distinguish this testi