
    Charles H. Mosier, Appellant, v. Weil-Haskell Company, Respondent.
    Third Department,
    March 9, 1910.
    Master and servant — negligence — injury by saw-—master’s duty to furnish" safe implement — Employers’ Liability Act.
    Where a servant who operated a swing cut-off buzz saw, which, when in use, was pulled forward by a rope, to which weights were attached, and when not in use was drawn back to the rear of the table by the release of the rope, was injured by the breaking of the rope, which caused the saw to swing and cut his hand when hé had turned his back to put the sawed boards in their place, it is error to nonsuit at the close of plaintiff’s case, as the questions of plaintiff’s contributory negligence, and his assumption of the risk are for the jury. It was the master’s duty to. provide a reasonably safe rope, and to inspect it properly.
    An action to recover for injuries so received need not be brought under the Employers’ Liability Act.
    Appeal by the plaintiff, Charles H. Hosier, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 9th day of November, 1909, upon the dismissal of the complaint by direction of the. court at the close of plaintiff’s case on a trial at .the Warren Trial Term.
    
      Edgar T. Brackett and Brodie G. IJigley, for the appellant.
    
      Joseph A. Kellogg, for the respondent,
   Houghton, J.:

The plaintiff was in the employ of the.defendant, and a part of his duties for some time had been- and was to operate a swing cut-off buz saw. The saw was swung from a shaft above a table, across which- was a - groove through which the saw rah.' To hold the saw to 'the back side of the table when "not in use, a rope with weights was attached to the saw frame running over a grooved wliéel. When a board was to be sawed, it was laid on the table and held in place with the right hand and the saw by its frame was pulled forward with the left, and when released the weights attached to the rope drew it back. On the day of the accident the plaintiff was engaged in sawing box boards, and when he had drawn the saw through the boards he released it and took, the piece which he had sawed and put it in what is termed the nailing box. In order to do so he had to turn from the saw, and as he turned back for the purpose of cutting more boards, the revolving saw. was swinging toward the front of the table and Struck his left hand cutting it severely. The rope had broken, thus ¡permitting the saw .in its-frame to swing like a pendulum over the table. The broken strands of - the rope were of different lengths, thus showing that they had pulled apart and had not been cut. There was téstimony showing that the rope had not been renewed for a considerable time at least.In operating the saw the power was not turned off between cuttings, and manifestly it was impractical so to do.

The.learned trial court at the close of the plaintiff’s proof dismissed the complaint. We are of the opinion this was improper. ■ It was the duty of .the defendant to attach and keep attached a reasonably safe rope to pull back the saw and to hold it at the rear of the table. If the rope was old and worn and likely to break a proper inspection on the part of the defendant would have discovered that fact.. Manifestly the revolving- saw swinging on the table would be a dangerous thing, especially as the plaintiff in the discharge of his: duty was compelled in order to dispose of the lumber which he had sawed, to turn his back to the table for that purpose.

.Of course, if the plaintiff brought the injury upon himself by his own careless manipulation of the saw, and broke the rope by letting go of it with a jerk, the defendant would not be responsible; but that question was one for the jury.' So, too; was .the question whether or not the plaintiff should have discovered the weakness of the rope, if it was weak, and whether he took the risk of operating it without repair, and whether when lie turned around toward-the saw again he was reasonably careful in so doing.

A notice was served, which the defendant challenges for sufficiency, the action in form being under the Employers’ Liability.. Act (Laws of 1902, chap. 600). With respect to the questions now involved it makes no difference whether the action be at common law or under the act, for under both it is the duty of the employer to provide reasonably safe machinery and keep the same in reasonable repair.

We think under the proof that both the question of the defendant’s negligence and contributory negligence on the part of the plaintiff were questions of fact for the jury and that the dismissal of the complaint was erroneous.

The judgment must be reversed arid a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  