
    Otto Reich, Respondent, v. Iron Clad Manufacturing Company, Appellant.
    Second Department,
    June 7, 1907.
    Negligence — injury by buzz saw — contributory negligence — evidence of defect.
    When a defect in the hearings of a buzz saw causing it to wabble has been called to.the attention of the master who has promised to repair it, an employee by . continuing to operate the saw is not guilty- of contributory negligence as a matter of law; that question is for the jui-y.
    In an action based on the negligence of the master in maintaining such defective saw, it is not error to admit evidence of one who had previously operated the saw, showing that'it was out of repair three weeks before- he left the defendant’s employ, which was four days before the accident.
    Appeal by the defendant, the Iron Clad Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Kings, on the 21st day of March, 1906, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes. • '.
    
      Abram I. Elkus [Carlisle J. Gleason and Lester L. Callan with him on the brief], for the appellant.
    , Herbert G. Smyth \Charles O. Sanders and Charles Zerbarini with him on- the brief], for the respondent.
   Woodward, J. :

■ The plaintiff in this action lost a portion "of one of his hands while operating a buzz saw, known as.a ripper.' There was.-evidence from which the jury .might.properly'have found:that the defendant was ■negligent in furnishing a saw which was notip a proper state of repair, or rather that, the machinery operating such saw was not in a fit condition by reason of- a lack of proper bolts to hold the boxes -in position,, permitting the saw, operated at a high rate of speed, to wabble. The plaintiff, .a man with only a limited experience in.operating this saw received the injury complained of, and the principal contention on the part of the defendant on this appeal is that the. plaintiff was guilty of' contributory negligence. The evidence warranted the jury in finding that the defective condition ■ of the saw and machinery had been called to the attention of the defendant’s principal foreman, and" that the; latter had promised to ■have the same repaired, and this, it is conceded, operated to con- ■ tinue the liability of- the master for a failure to provide reasonably safe machinery and appliances. But it is insisted on the part of the defendant that the plaintiff, knowing the tendency of the saw to wabble, and having continued to operate the same after lie knew that it was wabbling, was guilty of contributory negligence.as a mat-' ter of law. - We are of opinion, however, that the evidence presented a case for the jury. The plaintiff had operated the saw on two previous days when it was wabbling, and-while he testified that lie had stopped its' use on the day before because lie thought it dangerous, his experience had. not been such as to convince him that, in the exercise- of proper care, he might not continue to operate the same with safety, and the facts and circumstances were such that'the jury might find that, while he -knew of the defect in the machinery, 'hewas in-the exercise of tliat degree -of care which,was demanded by the'known conditions, and that the accident. was1 not due to -any negligence on his" part. The mere fact that work is dangerous is not a reason why it may -not be performed without negligence. It is undoubtedly dangerous to operate a buzz saw under the best possible circumstances. A -saw revolving at the rate of 3,0.00. revolutions a minute does hot show its full size, and there are many things that may operate, to make it dangerous. When that . saw is out of order, or. the machinery is loóse, the risk .is increased, but it may be that the danger is not so entirely obvious as to make 'it contributory negligence for the employee to continue to operate the same temporarily while the master is given time to make the machinery safe, and, in the case' now before us,' the jury were justified in finding that the situation did not require tlie plaintiff to refuse to work. He lcne.w that there was danger, but he had not assumed the risk of the master’s negligence, and if he used the degree of care which the known imperfect condition of the machinery seemed to demand he was not chargeable, as a matter of law, with contributory negligence. The man who preceded the plaintiff in operating this saw testified that the machinery had been out of repair for some time; that lie had made temporary repairs, and had' operated the machine when the saw wabbled, and the plaintiff having himself operated the saw when it wabbled on previous days without having any experience which justified him in concluding that it could not be operated safely with care, it was for-the jury to determine from the evidence whether he had used the degree o'f care which the special circumstances required, and we think the evidence is sufficient to warrant the verdict.

We do not think it was error to admit the evidence of Hummel, who had previously operated the saw, that the machinery was out of repair three weeks before he left, he having left tile employ of the defendant some four days before the accident, and especially where it was shown that the condition continued down to the time of the accident. This is the only exception urged on the admission of evidence, and the case does not present reversible error.

The judgmentiand order appealed from should be affirmed, with costs. ’ '

Present — Hirsóhberg, P. J., Woodward, Jenks, G-atnor and. Miller, JJ. -

Judgment and order unanimously affirmed, with costs. ■  