.1 dissent. The principal question litigated upon the trial was whether or not the scaffold which collapsed was properly constructed. , The appellant w;as not bound to furnish the best-known scaffold, but only such as was reasonably fit and .safe, considering the nature of the work to be done upon it — one such as a man of ordinary prudence would construct and use, having regard to liis own safety if he were to do individual work upon it. (Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31.)
As already said, the principal fact litigated was whether the appellant had performed its duty in constructing the scaffold and brought itself within the rule alluded, to, and, as bearing upon this question, opinions of several witnesses offered on the part of the plaintiff were taken against the objection and exception of the appellant. Thus, one witness was permitted to testify : “ Q. How, I ask you, in your opinion as an experienced pile driver, whether the piles were solid enough to construct upon ? * .-* * A. They were not. * * * Q. Mr. Joyce, were the 9.th, 8th and 7th bents reasonably safe, in your opinion, without the X braces which you have described, and without the cleats or scabs which you have described ? * * * A. It was not safe.” And another witness was asked, “Was it usual to put on a traveler‘of this kind and stand it over - bents that were not X braced,„ one with another, and that did not have X bracing between the legs of the bents and the sills on which they rested? * * * . A. Ho, sir. Q. Was that a reasonably safe way of constructing such false work? * * * A. Ho. sir. it was not.”
*91To enable the jury to determine whether the appellant was guilty of negligence in the construction of the scaffold, it was proper and competent for the plaintiff to prove in detail the way it was constructed, the strain to which it was subjected, the weight placed upon it, and its liability to break by reason of such strain and weight, as well as the experience of persons who had constructed and used similar scaffolds; in other words, the construction and strain, by reason of the use of the scaffold, could all be laid before the jury, and after a fair and full consideration of such facts it -could determine whether or not the appellant had performed its ■duty. It certainly did not aid it in the discharge of such duty to permit a witness to say that it was not properly constructed or that the scaffold was not safe, because those are questions which must be determined from the facts, and not from the conclusion of a witness no matter how learned or skilled he might be in the construction of scaffolds. The exceptions taken to the admission of this testimony were well taken, and for the errors thus committed I think the judgment should be reversed and a new trial ordered.
Judgment affirmed, with costs.