Matlack v. Plumb

Dissenting Opinion by

Me. Justice Moschziskee:

. I cannot agree that “in chief the plaintiff established the fact that the emery wheel was guarded”; the most that the testimony shows is that “it had a covering over it to carry the dust away,” made of “tin”; and there was nothing to suggest that this was intended for or would serve as a protection to an operator in case the wheel should break, which was the contingency to be guarded against. Next, I do not agree that the plaintiff was obliged to produce opinion testimony to show this tin device was not a “proper guard.” In entering the nonsuit the trial judge indicated that in his opinion the plaintiff’s proofs were lacking because he had not produced a witness who “was familiar with the trade and customs in regard to such machinery to testify that this guard was not a proper guard”; and the majority opinion seems to concur in that view. To my mind this is clearly wrong; for, even if it be assumed that the tin dust-shield which surrounded this wheel might be found to be a device that would serve as some protection, there was no necessity for opinion testimony in order to determine its sufficiency as a “proper guard,”— and that was the issue. . In other words, conceding, for the purposes of this case that the burden was upon the *154plaintiff to show that the wheel was not properly-guarded, the facts were susceptible of and were given exact description, and the inferences to be drawn therefrom depended upon the application of common sense and general knowledge and not upon the advice of those possessing special knowledge; hence, it was for the jury to take the testimony describing the wheel and the dust-shields and therefrom to decide for themselves whether or not the latter was a proper guard. “When all the circumstances can be fully and adequately described to the jury and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other, are not admissible”: Ake v. Pittsburgh, 238 Pa. 371, 375. Finally, in Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310, we decided that “it is competent to produce testimony to show the kind of guards that were available to the defendant and regularly employed by others using such wheels”; and under this rule the plaintiff was permitted to show that it was usual to enclose emery wheels in “three sixteenth and quarter inch steel guards,” further, that a guard of this character was “sufficient to resist a breaking emery wheel.” It seems to me that the evidence was ample to take the case to the jury and that error was committed in the nonsuit; therefore, I dissent.