
    Frank Harley, Resp’t, v. The Buffalo Car Manufacturing Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Negligence—Evidence.
    Plaintiff was injured by the breaking of a belt in defendant’s factory. In an action for damages the question of fact was as to the strength and-sufficiency of the belt fasteners which attached the ends of the belt. Meld,. that with the identical fasteners before them in the shape of exhibits, expert witnesses could be called upon to determine whether that particular mode of fastening the ends of the belt was an approved and common one, or whether it was insufficient for the purpose mentioned.
    Appeal by the defendant, the Buffalo Car Manufacturing Company, from a judgment entered in Erie county May 16, 1892, in favor of the plaintiff against the defendant upon the verdict of a jury rendered at the circuit February 17, 1892.
    
      Adelbert Moot, for app’lt; George Wing, for resp’t.
   Per Curiam.

The plaintiff, who is a common laborer, was in the employment of the defendant in the month of September, 1889, and while engaged in removing shavings from the factory of the defendant, in which there was a large amount of machinery consisting of shafting and drive wheels for the purpose of running: lathes by leather belts, etc., was seriously injured by the breaking-of a belt, one end of which struck him in the face and destroyed one of his eyes.

Ho question is made but that the plaintiff was properly conducting himself and acting under the general directions of the defendant’s foreman.

■ Ho motion was made in behalf of the defendant for a new trial at the circuit or at the special term. There is, therefore, no question of fact before us; and unless the trial court committed some-error which was prejudicial to the defendant’s rights, the judgment appealed from should be affirmed.

The trial seems to have proceeded in all respects under the doctrine contained in the opinion of this court in this case as reported in Harley v. Buffalo Car Manufacturing Co., 15 N. Y. Sup., 37, and 38 St. Rep., 574.

Upon the first trial, as well as upon the last, the question of fact related to the strength and sufficiency of the belt fasteners which were used to attach the ends of the belt together. Muclfr ■evidence was adduced to show that the fastener iu question, which is spoken of generally as the Buffalo Belt Fastener, was insuffieient for the purpose designed ; and we think, on the whole, that there was enough evidence to warrant the court in submitting the question to the jury, and that their verdict cannot be disturbed upon the merits.

But it is argued, that the court committed an error in the reception of testimony, in permitting witnesses to put themselves in place of the jury, and in being allowed to testify that the fastener in question was not sufficient for the purpose. The first testimony of this description was given by the witness Hamilton, who testified that he was the owner of a planing mill which he had conducted for twenty-one years.

He was acquainted with this kind of a fastener. He had used it but had thrown it aside after a short trial. He was then asked whether it was a proper and secure fastener, and an objection was taken, not to the competency of the man to speak upon the subject, nor upon any other ground except that the evidence was incompetent. Thereupon, the witness said he did not think the fastener a good, practical fastener; that it wouldn’t hold; it was necessary to have something that would stay ; that this kind of a fastener gave out, would break, and was not what was required, that it was not a safe, practical fastener because it was liable to give out.

Other evidence of this character was adduced upon the trial; and later on an objection finally was taken to it, that the questions put to the witness were to be decided by the jury alone. But as the testimony, already noted, was given without objection, we hardly think that this form of objection is available, even if the witnesses had been permitted to speak, in some sort, upon the ultimate question to be determined by the jury themselves. But it appears to us, that the objection in this instance, namely, that the witness was putting himself in the jury box and deciding the question for the jury, is not tenable from the very nature of the inquiry which was necessary to be entered upon at the trial. The whole question of fact related to the sufficiency and adaptability of this fastener to the purposes required; and whether it was a competent and sufficient means of attaching the ends of the Belt together into an endless band for the purpose of propelling machinery. We do not think it was necessary in this instance for counsel and witness to resort to any circumlocution; but having the identical fasteners before them in shape of exhibits which were introduced* in evidence, the witnesses could be called upon, safely, to determine whether that particular mode of fastening the ends of the belt together was an approved and common mode; or whether it was insufficient for the purpose designed.

The judgment appealed from should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., Macomber and Lewis, JJ., concur.  