
    Henry Schmahl, an Infant Over Fourteen and Under Twenty-one Years of Age, Who Sues by John Schmahl, his Guardian ad litem, Respondent, v. The Albany Brush Company, a Corporation Incorporated Under the Laws of New York, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Evidence — Opinion evidence — Expert evidence — Subjects of expert evidence — Mechanical operations and questions.
    Although one who is familiar with the construction and operation of certain machinery is competent to testify as to facts derived from his observation, he is not competent to state his opinion upon the question as to whether the form of construction is prudent or the question whether the casualty or injury which is the subject of litigation could have been averted by the use of such a guard as the witness describes.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial.
    Frank Vernon Johnson (Allan E. Brosmith, of counsel), for appellant.
    Clifford L. Beare, for respondent.
   Giegerich, J.

The action is to recover damages for personal injuries claimed to have been caused by the negligence of the defendant.

The plaintiff was employed by the defendant in its factory and one of his duties was to operate a circular saw. The saw was unguarded and while operating it the plaintiff’s hand was caught in it, two of his fingers were cut off, and he was otherwise injured. The saw was set in a table upon which the materials to be sawn rested during the process of sawing, and it projected about eight inches above the surface of the table. Its construction appears to have been simple and perfectly intelligible.

After proving the occurrence of the accident and the consequent injury by the testimony of himself and other witnesses the plaintiff rested. The defendant thereupon called its engineer, who testified to the circumstances of the employment of the plaintiff and the instructions and cautions which he had given him concerning the manner in which the saw should be used.

The defendant then called another witness, who testified in substance that he had been in a similar manufacturing business for thirty-seven years; that he had worked in seven or eight shops, all but one of them using such saws, and that he had never seen any guards used in connection with them, and that he did not think a guard for such a saw was practicable.

In rebuttal, the plaintiff called a witness who testified that such guards were in common use and explained, in detail, their construction and how they could be attached and used without interfering with the process of sawing.

Tn the course of the examination of this witness, the record shows the following question and answer with the accompanying objection and exception: Q. Will you state in your opinion whether the casualty or injury testified to in this case could have been averted by the use of a guard such as you have described? Defendant’s counsel: I object to that as a conclusion. [Objection overruled. Exception.] A. I say that it could have been avoided if the guard was there.”

Regarding this same witness at another point the record reads: “ Q. You have heard the testimony of the engineer in th'is case? A. Yes, sir. Q. His description of the manner in which the saw was constructed? A. Yes. Q. State whether or not you would require — or state whether or not in your opinion the form of construction such as described by him is prudent? Defendant’s Counsel: I object to that as improper in form and as a conclusion. The Court: He may state whether in his opinion it was safely constructed. Defendant’s Counsel: I except. A. It was not safely constructed nohow.”

I think it is perfectly clear that these exceptions were well taken and that the record shows reversible error.

While this may have been a case in which the testimony of those familiar with the construction and operation of such machinery was competent as to facts derived from their observation, it was not a case in which their conclusions based upon such facts were admissible. Van Wycklen v. City of Brooklyn, 118 N. Y. 424; Dougherty v. Milliken, 163 id. 527; Dolan v. Herring-Hall-Marvin Safe Co., 105 App. Div. 336; Burns v. Crow, 123 id. 251.

As this disposes of the appeal, it is unnecessary to consider the other questions raised by the record.

I think the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide event.

Hendrick and Ford, JJ., concur.

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