Travelers Insurance v. Ward Bulldozer Service Co.

In an action by a compensation carrier as assignee of the injured person’s cause of action (Workmen’s Compensation Law, § 29, subd. 2), the appeal is from a judgment entered in favor of respondents upon a jury verdict. Judgment reversed and new trial granted, with costs to abide the event. The questions of fact have been considered and a new trial would not be granted on those questions. In our opinion, it was prejudicial error to exclude the proffered testimony of appellant’s expert concerning the customary use of a chain when moving logs with tractor-shovels (Garthe v. Ruppert, 264 N. Y. 290 , 296; Regan v. Eight Twenty Fifth Corp., 287 N. Y. 179 ; Lerner v. Sears, Roebuck & Co., 274 App. Div. 905 ; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307 , 316; Rosenstein v. McGutcheon, 155 App. Div. 278 , 281). Nolan, P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.