Miele v. Rosenblatt

Hotchkiss, J.: The plaintiff, an employee of defendants in their factory in this city, was injured while sharpening a small steel drill. The sharpening was done by repeatedly heating and hammering the cutting end of the drill. When sufficiently heated the drill was hammered out on a small slab of steel resting on the end of a bench or table supporting a lathe operated by artificial power and vibrating from the effect thereof. To enable him to hold and manipulate the drill, plaintiff was furnished with a pair of ordinary gas pliers, more or less defective from use. I am satisfied that the judgment was right so far as defendants’ negligence and plaintiff’s absence from contributory negligence are concerned. The only question of any seriousness arises from the admission of testimony. One of the questions sharply contested on the trial was the appropriateness of the gas pliers and the steel slab with its uncertain support. Plaintiff contended that the proper implements with which he should have been furnished were a pair of blacksmith’s tongs and a firmly supported anvil. To sustain this contention, testimony was offered in his behalf tending to show a custom to use these latter devices. Such testimony was proper (Drummond v. Norton Co., 156 App. Div. 126, 133; affd. 213 N Y. 670), and the custom might have been of a limited character, in which case proof of defendants’ knowledge was necessary, or it must have been so general as to have raised a presumption of knowledge on their part. (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307, 316.) Danks, a witness for plaintiff, testified that he had been a button cutter for thirteen or fourteen years, and had worked for defendants, and in four or five shops in Hew York city and in Massachusetts shops. He was asked, “ Will you state how that [the work of sharpening] was done in other shops ? ” This was objected to on the ground (1) that it called for a [606] conclusion; (2) for expert testimony for the purpose of showing custom; (3) the witness is not qualified to testify on these subjects. None of these objections were tenable. The witness then answered that in the other shops “ there was either a man kept specially for that purpose of forging out drills * * * or they had proper tools.” He was then asked, without objection, to describe the method customarily pursued, and he answered, without objection, “there is a blacksmith anvil and a blacksmith tongs.” A sample of such tongs was offered in evidence, and the following question was asked: “Q. Is that the tongs customarily used in this other place you have referred to ? A. That is just the kind.” After he had answered plaintiff offered the tongs in evidence, and defendants’ counsel said: “I make the same objection; it does not tend to show universal custom; ” but he took no exception and asked for no ruling, nor did he move to strike out the answer already received. Then, by the court: “Q. Is that the kind of tongs that is customarily used in the trade in doing the work which you have testified that you and the plaintiff were doing at the time of the accident ? A. Yes, sir. ” The tongs were then offered and received in evidence over defendants’ “ same objection ” and exception. I take it that “ same objection ” means that it did not tend to show universal custom; but the question formulated by the court was perfectly proper in form, the only possible objection being that there had been no proof that in fact there was any custom whatever, general or particular. Lane, another witness called by plaintiff, had been a button cutter for fifty years, and had worked in five shops in New York city and vicinity, where it was the custom for the operators to sharpen their own drills. “ Q. Do you know the method and the tools that were customarily used for that purpose ? A. Certainly. Q. On and prior to the 4th of September, 1912 ? A. Yes, sir.” After the last answer had been received, the question which had evoked it was objected to because it did not state whether it referred to any general custom or only to the custom in shops in which the witness worked. But the form of this question was good, and the preceding question, to which nerhaps the objection was intended to be directed, was [607] equally proper. The only objection to which the latter was open was again the fact that the witness had not specifically sworn to the existence of any custom. But as to this it may be said that if a workman in the trade for fifty years swears that he knows the “ custom ” pursued in any particular department, presumably there must have been a custom or he could not know of it. The witness was then asked to state what the custom was. This question was unsuccessfully objected to on the ground, not that there had been no proof that there was any custom, but that it did not appear that the witness was “ qualified to state the general custom in the business,” and the witness answered: “ Well, the custom is of a man, when he is drawing out his drills, these blacksmith’s tongs are kept in the shop for his use, and likewise an anvil.” As I have said, it was competent for plaintiff to prove a proper custom, but of course it was not competent to prove the practice pursued in particular shops. I do not think, however, that defendants’ objections were directed to this point; they went, rather, to the qualification of the witnesses. At the conclusion of plaintiff’s case, defendants moved to strike out the testimony of Banks and Lane “upon the ground that neither of those witnesses were qualified * * * to testify as to custom, inasmuch as it appears now from the evidence that there are at least fifty shops where this same work is done in New York city alone, and that according to the testimony of Banks, he only knows the instruments and the manner of the work that was done in four or five of these shops and * * "x" Lane * * * is familiar only with the manner in which the work is done and the instruments used in five of the shops, and that * * * they cannot possibly be qualified under those circumstances to testify as to the general custom in the business.” This again goes to qualification, and bases the lack df qualification on inability of the witnesses to testify as to what was done in every shop, which of course was not necessary. There can be no question as to the qualification of the witnesses who were men of many years’ experience in the trade and presumably knew its usages. Had objection been made that, before they could speak, they must first show that there was a custom, it might have been availing on this appeal. No [608] such objection, however, was made. Had it been, the proper question might have been put and answered satisfactorily. The point is narrow, and I do not think this judgment should be reversed in view of the failure of defendants to squarely bring to the attention of the trial court the points they now raise. The judgment and order should be affirmed, with costs. Clarke and Dowling, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented. Judgment and order affirmed, with costs.