
    August Lau v. George N. Fletcher et al.
    
      Master and servant — Negligence—Defective appliances — Expert testimony — Questions for jury.
    
    1. In an action by an employé for injuries received by the breaking of a saw, it is competent for witnesses who are shown to be familiar with such saws, and who have had large experience in their use, and know their strength," and -the force to which they are subjected, to testify that in their judgment the saw in question was suitable and safe for use.
    
      ■2. The testimony on the part of the defendant tended to show that the plaintiff was not struck by a piece of the saw, as claimed by him, and that the saw, which had been mended, was suitable and safe for the use to 'which it was applied. A-nd it is held that the court properly refused to direct a verdict for the plaintiff, leaving to the jury only the question of damages.
    Error to Alpena. (Kelley, J.)
    Argued February 13, 1895.
    Decided March 5, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The •'facts are stated in the opinion.
    
      J. D. Turnbull (W. -E. Depew, of counsel), for appellant. ••
    
      Frank Emerick, for defendants.
   Grant, J.

The ■ defendants own ■ and operate a pulp mill. One of the' machines used is called the “double •cutter,” consisting of a. frame or table 4 feet high, 9 feet long, and 4 feet wide, the saw, the carriage, and the gearing. The frame is of solid wrought iron, with strong posts at the corners, and a rectangular opening at the top, ever the saw. The saw is placed horizontally in the frame, .and 10 inches below the top. The circular saw is 40 inches in diameter,' and revolves on a fixed pivot in the center. In operating the machine, the carriage, which is .above the saw, moves towards and from the saw alternately. At each end of the carriage is a clamp, or V-¡shaped piece of iron, holding the bolts of wood to be ■sawed. The bolts are. 2 feet long and from 4 to 8 inches in diameter.. The saw at.each, cut takes off about 1 inch from the lower end of the bolt, the pieces dropping down through an opening in the floor directly under the saw, ’into an elevator, by which' they are carried to another room. The front side of the frame, where the operator stands, is protected by a guard, consisting of a plank covered with iron, of sufficient width to prevent pieces of the saw, in the event of breaking, or pieces of the bolt, from flying out. The right end is also protected by a plank or board 12 inches wide, for the same purpose. The sawdust carrier incloses the left end of the frame. The back side of the frame is close to the wall of the room, where no one has occasion to go. If the saw breaks, pieces cannot escape into the room except by tearing through the protections around the frame. Plaintiff was running a single cutter about five feet to the right of the double' cutter. The operator of the double cutter threw the ends of the blocks which he could not saw into a box standing between the two cutters. On the right of the plaintiff was a gang saw, whose operator also threw similar pieces into a tub standing at the right of the plaintiff’s machine. The business of the plaintiff was to saw those pieces. Plaintiff had been at work in this room for nearly five years. The double cutter had been in operation for two years. It is conclusively established by the testimony on the part of both the plaintiff and the defendants that these saws frequently broke, even though they were perfectly sound. One of plaintiff’s witnesses, who had operated this machine before the accident, testified that sometimes two broke in one week, and sometimes they would run three or four months without breaking. The reason for this is that the “ dogs,” which come up with a • spring to hold the bolts in place, “do not always go up solid,” as the witnesses express it, so as to hold the bolts entirely firm. Whenever this happens, the bolts bind the saw, and breaking generally results.

On November 10, 1891, the defendants, having broken the saw, and having no new one to put in, took a saw, which had a crack in it two or three inches long, to a foundry, had it riveted, and placed in the machine for use. It did the work without trouble until December 9, when it broke. Plaintiff claims that a piece of the saw flew out, struck him in the side, and injured him. The sole negligence alleged is the use of an unsound saw.

The conflict of evidence was upon the following points:

1. Plaintiff's testimony tended to show that when the saws broke pieces flew around the room. Defendants* testimony tended' to show that it was impossible for pieces to fly out, on account of the guard.
2. Plaintiff claims that he was struck by a piece of the saw, while defendants claim that when the saw broke, which made a great noise, the plaintiff, in stepping or running back or to his right, fell over the tub standing-near him.
3. One witness testified that he picked up a piece of the saw near where the plaintiff stood. Defendants insisted that the only way in which such piece could escape was by.dropping down under the frame, striking upon the side of the opening to the elevator, and bounding out upon the floor, in which case it could do no harm. The frame was open just above the floor, and the only way to see the saw was by stooping down and looking up under the table, or by standing up above the frame and looking down upon it.
4. Plaintiff's testimony tended to show that the protection at the right end of the cutter was a board an inch thick, while defendants* testimony showed it to be a plank l-£ to 2 inches thick.
5. There was also a conflict of evidence on the question whether the saw was suitable and safe for use.

The case was submitted to the jury under the charge of the court, and a verdict rendered for the defendants.

The defendants introduced evidence of expert witnesses, who were familiar with these machines and saws, and had ha'd large experience in their use, and who knew their strength and the force to which they were subjected, to the effect that in their judgment the saw in question was suitable and safe for use. We think the testimony was properly admitted. It cannot be said that one unfamiliar with the use of such machines is as competent to. judge of their safety and fitness as those experienced and skilled in their use, and who have knowledge of their construction. .

The judge very fully and carefully instructed the jury upon the general principles of negligence involved in the case,' and as to the duty of the employer to furnish a safe place and safe appliances, and as to the risks which the plaintiff assumed. These principles are so well established, and so familiar to the profession, that we deem it unnecessary to quote from the charge. The circuit judge closed his instructions upon the negligence of the defendants by saying:

“The question for you to determine in this case is, was-this saw at the time a safe and proper saw to be used in the connection in which it was then being used? Was it-such a saw as men of ordinary prudence and care and caution would have used under like circumstances?”

The verdict and judgment must stand, unless, as the-plaintiff contends, the court should have directed a verdict-for the plaintiff, leaving to the jury only the question of damages. It is unnecessary to discuss this question under the conflicting evidence as above stated. If the-jury believed the evidence on the part of the defendants, the plaintiff was not struck by a piece of the saw. One-of the plaintiff’s own witnesses testified that the pieces of the saw could not escape from the table without tearing through the board or plank protection at the end. No-witness on the part of the plaintiff testified that the protection was torn off or broken. Neither can it be said as a matter of law that it was negligence to use the-mended saV. It had done the work for a month, and there is no evidence tending to show that it was weaker at the mended point than at any other, or that it broke-at that point, or in consequence of the crack in its mended condition. Witnesses for the plaintiff testified positively that it was not safe/and that they so-notified defendants’ agent. This information was denied, and defendants’.witnesses as positively testified that it was safe.

Judgment affirmed.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.  