Opinion
October, 1922.
Judgment and order reversed and new trial granted, costs to abide the event. We think there was a question for the jury as to whether the defendant was negligent and unskillful in the prosecution of the work in question. Plaintiff and his witnesses testified to certain facts stated to be within their knowledge and observation. It was admitted by the engineer of the defendant that if such facts were true, the work was negligently and unskillfully done. However general in character this hypothetical question was, it was admitted by the trial court, and it is quite plain that the witness understood its purport and was not misled, because in reply to a question by the court he said that the facts assumed were not true. Their truth or falsity was for the jury. They were not required to speculate upon the subject at all, but had an express admission by defendant's engineer of unskillfulness and negligence in the prosecution of the work, if they found the facts to be as testified to by plaintiff and his witnesses. Blackmar, P.J., Rich, Jaycox, Kelby and Young, JJ., concur.