#### George F. Hall, Respondent, *v.*New York Telephone Company, Appellant.

Third Department,

May 7, 1915.

Master and servant — negligence — Employers’ Liability Act — injury to employee while assisting in raising telephone pole — when foreman not performing acts of superintendence—evidence — expert testimony.

In an action both at common law and under the Employers’ Liability Act, for personal injuries sustained by the plaintiff while engaged with four other employees of the defendant and a foreman in raising a telephone pole, it appeared that the pole was of green chestnut and frozen, about thirty feet in length, nine inches through at the top and fourteen inches through at the butt; that on the morning of the accident the temperature was about fifteen degrees below zero, and there were from eight to twelve inches of snow covered by a hard crust, sufficiently strong to bear the weight of a man; that it was the duty of two of the men to hoist the pole with long pike poles, of the plaintiff and one of the other men who were stationed on opposite sides of the pole to steady it with short pike poles, and of the fifth employee to hold a support under the pole, as it was being hoisted; that the foreman stood at the butt holding the handle of a cant hook in each hand, with which to prevent the pole from turning; that when the pole had been raised to an angle of about forty-five degrees the foreman noticed that it was leaning away from the plaintiff, and thereupon directed one of the men engaged in hoisting it to assist in pushing it towards the plaintiff who was alone on the other side of the pole; that as the pole was pushed toward the plaintiff, the additional weight caused the crust to break and let him through; that he noticed the pole was turning and called to the foreman to hold it, but it kept on turning and fell, severely injuring him.

*Held,*that it was reversible error to submit to the jury the question whether or not the pole fell through the failure of the foreman to exercise reasonable care, for the reason that the work of the foreman in hold-

*397ing the cant hooks was not a detail of superintendence, but was the work of a fellow-servant, for which, even if negligently performed, the master was not liable.

As the question as to how many men are required to erect such a pole in safety does not require professional or scientific knowledge or skill, not within the range of ordinary training or intelligence, and since the conclusion to be drawn by the jury was not dependent upon the existence of facts which were not common knowledge, it was error to permit witnesses for the plaintiff to testify as to whether such pole under such circumstances could be erected in safety with less than eight men. Howard, J., dissented.

Appeal by the defendant, New York Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 28th day of December, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

*John A. Delehanty,*for the appellant.

*Cornelius E. Fitzgerald [James McPhillips*of counsel], for the respondent.

Lyon, J.:

The plaintiff was injured in February, 1914, by the falling of a telephone pole which he and four other employees of the defendant, under the direction of defendant’s foreman, were engaged in raising in connection with the building of a telephone line from Lake George to Warrensburg, N. Y.

The pole was of green chestnut and frozen, about thirty feet in length, about nine inches through at the top, and about fourteen inches through at the butt. The morning was cold and frosty with the temperature about fifteen degrees below zero, and with eight to twelve inches of snow on the ground, covered by a hard crust sufficiently strong to bear the weight of a man. Four of the men, including the plaintiff, were supplied with pike poles. It was the duty of two of the men, using their long pike poles, to hoist the telephone pole, and of the plaintiff and one of the other men who were stationed on opposite sides of the pole to steady it with their short pike poles and prevent its swaying as it was being raised. It *398was the duty of the fifth employee to hold a support under the pole as it was being raised. The foreman stood at the butt of the pole, at the edge of the hole which was to receive it, holding the handle of a cant hook in each hand with which to prevent the pole turning either way as it was being hoisted. When the pole had been raised to an angle of about forty-five degrees the foreman noticed that it was careening towards the north or away from the plaintiff. He thereupon directed one of the men engaged in hoisting it to assist the man on the north side in preventing the pole swaying farther north and falling, and in pushing it south towards the plaintiff. There were thus two men on the north side of the pole and the plaintiff alone on the south side. The foreman also directed the plaintiff to take a position farther from the pole in order, as the plaintiff testified, to catch and hold it as it came back. This the plaintiff testified he did, but that the additional weight placed upon his pike pole as the telephone pole came back caused the crust to break and let him through, or, as defendant’s witnesses testified, to slip on the slight grade; and that while he was holding all he could, with the weight forcing him down into the snow, he noticed that the pole was turning, and called to the foreman to hold it, that his cant hook was loose, but that the pole, kept turning and soon released the end of the pike pole, and the telephone pole being no longer supported on the south side, fell, striking the plaintiff and inflicting the grievous injuries of which he complains.

At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground, among others, *“*that the alleged act or omission on the part of Eoy Farmer [the foreman] in manipulating the cant hooks which, it is claimed, resulted in the falling of the pole, was the act or omission of a fellow-servant for which the defendant is "not hable.” The court denied the motion for a nonsuit, stating that he should submit the case to the jury upon two propositions, in addition to that of contributory negligence, one under the common-law count and the other under the Employers’ Liability Act (Labor Law, [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). At the close of. the evidence the court submitted to the jury two propositions relative *399to the defendant’s negligence: First, did the defendant in the exercise of reasonable prudence and care perform its duty to the plaintiff in furnishing a sufficient number of men to raise the pole with safety ? *Second,*did the pole fall through the failure of the foreman to exercise reasonable care, considering the situation and surroundings there on that day; did the foreman loosen his hold upon the cant hooks; did he allow the pole to turn, and by reason of its turning did it fall *%*

The defendant excepted to the denial of the motion for a non-suit, and to the submission of the two propositions to the jury.

The jury rendered a ierdict in favor of the plaintiff.

We think the court erred in submitting to the jury the second proposition, for the reason that the work of Farmer in holding the cant hooks was not a detail of superintendence, but was the work of a fellow-servant, and hence his negligence in allowing the cant hooks to slip, if negligence it was, was negligence for which the master was not liable.

In the case of *Hope*v. *Scranton & Lehigh Coal Co.*(120 App. Div. 595) the rule laid down as the test of the act of superintendence was that unless the act was of itself one of direction or of oversight tending to control others, or to vary their situation or action because of his direction, it' cannot fairly be said to be one in the doing of which the person intrusted with superintendence was in the exercise of superintendence. In the case of *Flynn*v. *Boston Electric Light Co.*(171 Mass. 395) where men were stringing an electric wire through trees, and the foreman had given directions to pull the wire, and was himself assisting in the work, and the plaintiff was injured thereby, it was held that in the act of pulling the wire the foreman was a coservant, and not engaged in superintendence, and hence the master was not liable for negligence of the foreman in pulling the wire. In *Larson*v. *Brooklyn Heights Railroad Co.*(134 App. Div. 679; affd., 202 N. Y. 563) it was held that in order to hold a master liable under the Employers’ Liability Act for the negligence of a foreman it must be shown not only that the negligence was that of a person exercising- superintendence, but that he was engaged in an act of superintendence at the time. In that case it was also held that where the plaintiff, a laborer engaged in removing *400old ties from an elevated railroad and replacing them with new ones, was ordered to go down into the street and carry away the old ties as they were thrown down, and the foreman himself went into the street to warn the public and to signal the man above when to drop the ties, and plaintiff was hit by a tie dropped in response to the foreman’s signal, he cannot recover under the Employers’ Liability Act for the injuries so received, for at the time the foreman was engaged in a mere detail of the work, and not in an act of superintendence; that while a foreman is performing a part of the work which he might have assigned to any common laborer, he is not discharging the duties of a superintendent. (See, also, *Famborille*v. *Atlantic, Gulf & Pacific Co.,*155 App. Div. 833; affd., 213 N. Y. 666; *Sherman*v. *Mason & Hanger Co.,*162 App. Div. 327.)

We also think that the court erred in the admission of certain testimony.

In support of his claim that the defendant was negligent in not having furnished sufficient men to erect the pole, the plaintiff called four witnesses, experienced in that line of work. Each of these witnesses testified in effect, under the objection and exception of the defendant, that the number of men usually employed in the erection in the winter time of a green chestnut pole, thirty feet long, eight to ten inches at the top, and sixteen to eighteen inches at the base, the thermometer being twelve to fifteen degrees below zero, with one foot of snow on the ground, with a crust of sufficient strength to hold a man not carrying a load or subjected to any pressure, was eight.

Following such testimony the first witness was asked “ Then what do you say as to whether or not it could be erected with safety with a lesser number of men, taking it with pike poles and cant hooks ?” Under defendant’s objection that the testimony was incompetent and immaterial, ahd not the proper -subject of expert testimony, and under defendant’s exception, the witness answered that it “could not be erected with any safety with a less number of men.” Another of the four witnesses was allowed to testify under defendant’s objection and exception that under such circumstances , the number of men usually employed to erect a pole of those dimensio*ns*with safety on *401a slight side hill ” was eight men at least. Another of said witnesses in answer to defendant’s hypothetical question, said “ under the circumstances that I have heard spoken here, I should judge with safety there should be seven men and a foreman.” An exception was taken by the defendant to the refusal of the court to strike out the answer.

We think it was error to permit the witnesses to testify as to whether the pole could be erected in safety with less than eight men. The rule as to the admissibility of expert evidence was stated in the case of *Dougherty*v. *Milliken*(163 N. Y. 527), as follows: “It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them tó speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclusión thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. ”

This rule was repeated in *Schutz*v. *Union R. Co.*(181 N. Y. 33) and in the case of *Welle*v. *Celluloid Co.*(186 id. 319). In the latter case the court said: “The governing rule deduced from the cases permitting the opinion of witnesses is, that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject, so as to possess them with a full understanding of it. *(Schwander*v. Birge, 46 Hun, 66; *Van Wycklen*v. *City of Brooklyn,*118 N. Y. 424.) ”

There are many other cases in which this rule has been reit*402erated, among which *are Flanagan v. N. Y., L. F. & W. R. R. Co.*(83 Hun, 522); *Dolan v. Herring-Hall-Marvin Safe Co.*(105 App. Div. 366); *Duke*v. *American Museum of Natural History*(157 id. 637); *Pursley v. Edge Moor Bridge Works*(56 id. 71; affd., 168 N. Y. 589).

In the case at bar the answer to the question as to how many men were required to erect the pole in safety did not require professional or scientific knowledge or skill, not within the range of ordinary training or intelligence. Neither was the conclusion to be drawn by the jury dependent upon the existence of facts which were not common knowledge and peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. Upon the other hand, the raising of the pole was a simple operation, and as in the case of *Ferguson v. Hubbell*(97 N. Y. 507) the subject concerning which opinions were given was one susceptible of descriptive facts from which the jury might draw the conclusion. The circumstances and conditions attending the operation were fully developed upon the trial; and under the evidence, exclusive of the testimony of these expert witnesses, the jurors as men of more or less practical experience were fully capable of arriving at an intelligent conclusion as to whether under the conditions which existed there that day, six men were a sufficient number to erect the pole with safety, and whether the exercise of reasonable prudence and care would not have required the employment of additional men. While the testimony referred to was inadmissible, perhaps we should not consider its admission, of itself, of sufficient importance to justify ordering a new trial of the action, as following its introduction the defendant called several witnesses of large practical experience in setting poles who testified that six men were sufficient to set the pole. The wholé subject was fully gone into by the defendant and very likely the result would not have been different, had the testimony of these alleged expert witnesses been excluded, nor is it certain that such testimony materially influenced the verdict, but as a new trial of the action must be had, we have thought it advisable to call attention to this evidence in order that we may not be considered as having approved of its admission.

*403The charge was clear and full and was not the subject of an exception, nor followed by a request to charge. The verdict is not complained of as being excessive.

Because of the errors above stated we think the judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Howard, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.