(dissenting).
One Joseph Emerson employed by the State of Maine as chief supervising elevator inspector was allowed to testify as an expert, over the objections of the appellant Otis Elevator Company (Otis), that as of July 20,1972, immediately prior to the accident to Paul F. Minott, the plaintiff-admin-istratrix’s decedent:
“I believe that the elevator contractor [Otis] had care, custody and control of the elevator.”
With due respect to my colleagues, this was prejudicial error and an abuse of discretion on the part of the trial court requiring reversal, and, thus, I dissent from the majority opinion in relation to this particular point of appeal. In all other particulars, I do agree with the opinion of Mr. Justice Glassman.
I view the appellant’s contention as correct, that the issue — which contractor had control over the elevator at the time of Mr. Minott’s accident — was crucial to the question of liability between the plaintiff ad-ministratrix and each of the contractor defendants, as well as between the contractors themselves whose respective interest suggested each try to shift full responsibility to the other. In connection with this issue of control, I do believe that Emerson, Cunningham’s expert witness, was incompetent to give direct personal testimony on the issue of actual and factual control of the rear elevator as between Otis, the subcontractor, and F. W. Cunningham & Sons (Cunningham), the general contractor, instead of merely testifying to the existing usage and custom in the industry at the time of the incident; Otis’ argument that the ultimate factor of specific control over *1334the rear elevator was not proper subject matter for expert testimony is meritorious.
As pointed out by Mr. Justice Glassman in the majority opinion, Otis, in March of 1972, did assume control of the rear elevator and had started the work of converting it from a freight elevator into one suitable for passenger service under its subcontract with Cunningham. The record is clear, and the evidence undisputed, that in late March, however, Otis’ employees went on strike and work on the rear elevator was not resumed prior to Mr. Miriott’s fatal accident. The record also shows that at the time of the strike Cunningham took over actual control of the rear elevator, installed at each landing swinging hoistway doors equipped with self-closing mechanism and a lock which could be opened by a key, whether or not the elevator car was present at the particular floor. Cunningham, in furtherance of its own contract with Associated Hospital Services (AHS) to perform extensive renovation to the building, did use the elevator which was then undisputably under its control to transport building materials. After AHS moved into the building in late June, Cunningham delivered to AHS two keys to the rear elevator for the use thereof by its employees in the course of their employment and AHS employees, including Mr. Minott, did use the elevator during the strike by Otis employees and thereafter. The only evidence in the case was to the effect that this use of the elevator by AHS was not authorized by Otis. One witness testified that, after the strike had ended and Otis had resumed work on the front elevator, but before any work was done on the rear elevator and during the period of some six days prior to the Minott accident, he, as well as another Otis employee, had noticed that Mr. Minott was using the elevator. He denied, however, that he became aware that Minott had a routine schedule that he would follow with his cart. The evidence does not disclose how soon before the tragedy did this single observation of Minott’s use of the elevator by the two Otis employees take place, nor whether this fact was reported to whoever was in charge for Otis at the time. Furthermore, Emerson testified that the only use to which the rear elevator could have been put legally during the period of renovation was such operation only as was necessary to perform the work of renovation itself, and that only by the contractors working thereon. Thus, its operation by AHS authorized by Cunningham was without legal sanction, the old state certificate or license to Sears and Roebuck having been suspended automatically when work on the conversion commenced and the new one to AHS not having been issued.
Royal Hoyt, a licensed elevator inspector in the State of Maine, who had observed a set of keys to the elevator hoistway doors in the hands of John Doyle, Cunningham’s project superintendent, shortly after the accident to Mr. Minott, was the plaintiff’s so-called expert witness who testified as to the practice in the industry, as follows:
“The practice was that any elevator that was undergoing alterations was under the care, custody and control of the contractor that was performing the alterations on the elevator.”
* * * * * *
“The accepted practice was that the elevator would be used only by the contractor performing the alterations on the elevator.”
On cross-examination, Mr. Hoyt admitted that in his experience as an elevator inspector he had never investigated a case where the subcontractor doing the renovation of an elevator was immobilized by a strike of his employees and the general contractor took over control of the elevator and, prior to the subcontractor’s resumption of work on the elevator, an accident happened.
I will concede that Hoyt’s testimony in relation to the understanding in the industrial world to the effect that the contractor who has the work of renovation of an elevator assumes the care, custody and control of the elevator from the time when the work of alteration upon the elevator begins was admissible, and that the jury, even though not so informed, would perceive that such was the usual and customary practice under ordinary circumstances.
*1335The existence of a custom or usage in any particular trade must be established as a matter of fact and not of opinion. Any witness having adequate knowledge of the matter is qualified to testify to its existence and the specifics thereof. The opinion of an expert should be confined, however, to the usage or custom itself and should not extend to any implications or liabilities springing from such usage or custom. 32 C.J.S. Evidence § 546(76); 21 Am.Jur.2d Customs and Usages, § 37.
In the instant case, the matter at issue underlying the rights and duties of the parties, here the two contractors, was the issue of control of the elevator at the critical time. The custom or usage in the trade did not involve any scientific or professional skill, such as the methods of treatment by physicians or surgeons, or technical knowledge as may be required in dealing with electrical appliances or the like. Farmers’ Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916). Which contractor in fact had control of the elevator under all the circumstances of the instant case was a jury question, and its proof depended not upon any particular scientific knowledge or skill of any person proficient in the operation and construction of elevators or in the best means to be used for their safe operation. Such proof could be provided by any person knowledgeable of the custom through observation or otherwise.
It should be observed that the, charge dealt in generalities and did not focus upon the facts of the case insofar as the question of control was concerned. It did not give any guidance to the jury respecting the law applicable to the usage and custom in the trade to which one witness testified. Nor did the instructions touch upon the illegal aspect of the operation of the elevator by AHS and Cunningham’s authorization thereof. Furthermore, the jury was not informed concerning the respective duties of the general contractor vis-a-vis the subcontractor in relation to their individual or joint control of the elevator, nor regarding Otis’ possible duty to assume control following the end of the strike and the time for so doing. The jury was not told what effect knowledge of Minott’s use of the elevator by some Otis employees who were not in charge of the renovation project for Otis could play in activating the duty in Otis to resume control of the elevator.
In the face of such inadequacies in the instructions to the jury, Emerson’s testimony that he believed that the elevator contractor, meaning Otis, had care, custody and control of the elevator at the time of Mi-nott’s fatal fall was crucial and undoubtedly served to fasten the greater degree of fault upon Otis. How else explain the jury’s specific percentile finding that Mr; Minott was 30% negligent, Cunningham 30% negligent and Otis 40% negligent? Even though the parties did not object to the charge, nor request specific instructions respecting the reference matters, the submission of the case to the jury, postured as it was on the existence of the usage and custom in the trade respecting control of an elevator under renovation, tied in with Emerson’s testimony that Otis had control of the elevator, without adequate instructions as to the effect thereof, was inconsistent with substantial justice and a reversal is in order to protect Otis’ right to have the jury consider the facts under appropriate instructions. Hixon v. Mathieu, Me., 377 A.2d 112 (1977).
Hoyt and Emerson were competent to testify generally as to the existence of the usage or custom in the trade respecting control of an elevator under renovation as between several contractors concerned with the alteration project, but Emerson’s personal conclusion or inference to show the effective result of the usage or custom on the factual conduct of the parties in relation to the subject matter was not competent evidence and was prejudicial error. Haskins v. Warren, 115 Mass. 514 (1874); O’Connor v. 595 Realty Associates, 23 A.D.2d 69, 258 N.Y.S.2d 145, app. dism. 17 N.Y.2d 493, 267 N.Y.S.2d 213, 214 N.E.2d 376 (1965).
I conclude that the error was highly prejudicial and that there was an abuse of discretion. I would sustain the appeal, va*1336cate the judgment and remand for a new trial.