#### John F. Galligan, Respondent, *v.*The Metropolitan Street Railway Co., Appellant.

(Supreme Court, Appellate Term,

November, 1900.)

Negligence — An eye witness cannot testify as to whether a street car or a hose cart, approaching at right angles, could first have crossed the point of their collision.

Where a fireman, who is being driven back from a fire upon a hose cart or tender, sues a street railway corporation for injuries received from a collision at a street intersection between its car and the tender, a witness for the plaintiff, who saw the accident, cannot give his opinion, based upon the relative positions and speed of the ear and of the tender, as to which of them could first have crossed the point of collision. The question is for the jury.

Galligan v. Metropolitan Street R. Co., 32 Mise. Rep. 780, reversed.

Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term in favor of plaintiff, and from an order denying the defendant’s motion for a new trial. The action wias brought to recover damages for alleged negligence. The plaintiff, a member of the *88New York City Eire Department, was being driven back from a fire upon a hose cart or tender, moving west, when, at a street crossing, a north-bound car of the defendant struck the tender and threw the plaintiff to the ground to his personal injury. The question addressed to the "witness Nott was as follows: “ Q. In view of the distance between the point of collision of the railroad car at the time that, the homes’ heads were at the easterly rail of the northerly track and the speed at which the horses drawing the tender were moving, which, if you know, as between the tender and the car, could have first crossed the point of collision ? *Defendants counsel:*Objected to as incompetent, improper in form, immaterial and irrelevant. A. The tender.”

Henry A. Robinson (John T. Little, of counsel), for appellant.

Philip J. Britt, for respondent.

O'Gorman, J.

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.