—This action was to recover $500 paid on a.
On the trial, the witness Rightmire was asked the following question: “ From your observation of this engine, are you able to state whether or not it was a safe machine to have round a'farm barn for the purpose of threshing? Answer yes or no.” This was objected to by the plaintiff, on the sole ground “ that the witness is not shown to be an expert.” Upon this objection being interposed, the referee said: “ I don’t think it calls for the opinion of an expert. I will receive it.” To this the defendant excepted, and the witness-answered : “ Not, in my judgment, no sir ; I think it isn’t.” No motion was made to strike out the answer of the witness.
The defendants now claim “ the plaintiff had no right to prove the conclusion of the witness as to the character of the-the engine for safety or danger.” The difficulty with this-contention is, that there is no objection or exception which raises that question. It will be observed that the objection was not directed to the competency or admissibility of the-evidence, but to the qualification of the witness. The question was directed solely to the ability of the witness to state a certain fact, and did not call for the fact itself. But it may be said that the answer was improper. If we admit this, and that it was not responsive to the question, still, as there was no objection to the answer, or motion to strike it
One of the particulars in which the referee found that the ■engine did not comply with the warranty was that the spark arrester was two small. Hence, the question of its sufficiency was one of the questions at issue. The defendants offered to prove that if the spark arrester was in good condition, it would arrest sparks as well as any spark arrester ■upon any engine used for farm or agricultural purposes, the purpose for which the engine in question was purchased and designed. This evidence was excluded by the referee as incompetent and improper. The defendants also sought to prove the kind of spark arresters used on the Westinghouse and Masillon engines with which the plaintiff compared the -engine sold on a trial to determine if it fulfilled the defendants’ warranty. This evidence was excluded as incompetent and immaterial. We do not see how these rulings can be sustained. We think the evidence was clearly admissible as bearing upon the question of the sufficiency of the spark arrester, and upon its sufficiency as compared with those engines used on the comparative trial, had to determine the merits of the engine sold.
The defendant also- sought to show the operation of the engine in question after it was repaired, and before it was ■retaken by the plaintiff, in regard to throwing sparks, and this was excluded on the ground that it was incompetent and immaterial and not in the presence of the plaintiff. This we think was error. The defendants, not having been present at the trial of the engine, must have had a right to show its condition as to throwing sparks immediately before it was taken by the plaintiff, and shortly before such trial was had.
The defendants also sought to prove by the witnesses, Ribble and Squires, the admissions of the plaintiff in defendants’ favor as to the engine in question. This evidence was
We cannot say that the defendants were uninjured by the exclusion of this evidence, and it therefore, follows that the judgment must be reversed.
Judgment reversed on the exceptions, and a new trial ordered before another referee, with costs to abide the event.
Hardin, P. J., and Merwin, J., concur.