
    Frazier et al. v. Lloyd.
    Ah employee in a saw mill, familiar with the mill and the danger in operating a circular saw, was struck and injured by a hoard thrown from a circular saw, operated by his employer. In an action for damages for alleged negligence on the part of the employer, there was no evidence as to how the accident happened, and it was testified that even the greatest care could not prevent boards from being thrown or shot out by a circular saw. The defendant testified that the board was sawed through; and other witnesses testified that, where a board is sawed' through and not pushed away, there is danger of its catching in the saw and being thrown out, and that it would be negligence not to push it away; but no witness testified that the defendant did not push the board away. Held that there was no evidence, not even a scintilla, and the submission to the jury was error.
    Nov. 2, 1888.
    Error, No. 85, Oct. T. 1888, to C. P. No. 2 Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case for personal injuries, at Oct. T. 1886, No. 427. Paxson, J., absent.
    The evidence showed that the plaintiff had been employed about saw mills for some twenty years; that he had been employed in the saw mill of the defendants for some eighteen months and was familiar with the construction and operation of circular saws; that, on April 12, 1886, he was working in the mill, and was sent to a lower floor, on which there were several circular saws, one of which was being operated by Geo. Erazier, one of the defendants; that, in passing near this saw, the plaintiff was struck by a piece of board, thrown by the motion of the saw, and injured. It appeared from the evidence that even the greatest care could not prevent pieces of board from being thrown forward by the saws; and that the plaintiff might have gone around back of the saw where there would have been no danger. There was no evidence as to how the accident happened.
    One of plaintiff’s witnesses testified, inter alia, as follows:
    By the Court: Q. What is the cause of a saw striking and throwing a stick with such force; is it because it is not pushed off properly, or how is it ? A. Sometimes the gauge may be too tight on the back of the saw and cause it to come back; that would cause it to fly back occasionally; sometimes a piece might fly off. Q. In shoving np a piece toward the saw, if the hand is lifted from it, or it is not shoved properly, will it strike it out ? A. Sometimes it will; yes, sir. Q. Or when you say it binds, that is near the teeth' of the saw, is it ? A. The side teeth will cut into the piece and naturally cut through, the gauge being too narrow behind will make it wedged shape, and it will get tighter all the time ; that will cause it to go back more frequently by not dealing the saw — by not shoving' it clear back; the back of the teeth will catch it in this manner and throw it back. Q. Is the danger when you have the piece pretty nearly sawed through? A. No, sir ; it is after you have it sawed, through, and it is not shoved clear. Q. When it is sawed through, the teeth strike it on one of the sides? A. Yes, sir. Q. After the board is entirely sawed through? A. Yes, sir. Q. If the piece is not shoved away ? A. Yes, sir; there is danger of it catching and throwing it back.
    
      By Mr. Bird: Q. Do you know what caused this piece to be thrown back ? A. I don’t.
    Cross-examination by Mr. Patterson : Q. Won’t accidents from pieces flying back occur with the best sawyers at a buzz saw? A. Tes, sir; liable to occur with anyone. Q. And even when you speak of the board not being shoved clear, if the board is shoved clear the man stands at the side of a table, does he not, when he shoves it past the saw? A. Yes, sir. Q. Then of course he cannot keep that hand over there safely to himself ? A. Well, they generally do. Q. Up to the last point; but they usually take it off after the piece is cut clear ? A. Y es, sir; they shove it clear past the saw. Q. And then, after the piece is cut through, he generally takes his hand away from the strip? A. Yes, sir, and it tumbles over the table. Q. If, after he has shoved past the saw and he lets go the strip, the piece that is on the side toward him, if it happens to tip a little askew and the teeth catch, it would rise, if it happened from any reason to tip a little askew and the teeth would catch it, would it not shoot it right back? A. Yes, sir. Q. State whether it is possible for the best sawyer to tell when anything will be shot back from a buzz saw ? A. It never comes back if he pushes it far enough away. Q. In sawing they generally saw them clear and let them go? A. Yes, sir.
    By the Court: Q. You said these accidents are liable to happen with the best of sawyers; they are unavoidable, or with particular care and caution they can be avoided? A. Well,that is pretty hard to tell; sometimes they happen in spite of all you can do.
    By Mr. Patterson : Q. Then, as I understand you, if a man is within range of the shot of the buzz saw, either the sawyer at the side of it or the man within range of the shot may be injured by an accident that in your opinion may or may not be unavoidable? A. Yes, sir. Q. And it is impossible to tell at a particular time when that will occur or how it does occur? A. Yes, sir. Q. Did. you ever have pieces shoot back on you when you were sawing ? A. Yes, sir; I have been shot with them. Q. With all the skill you could exercise ? A. Yes, sir.
    By Mr. Bird: Q. You say if a board is pushed clear away there is no danger of it coming back ? A. No danger unless somebody shoves it up against the saw.
    Geo. Frazier testified that the piece that was on the saw was sawed through, but it might have caught on the back of the saw as it was going out. He said he did not know what caused it to come back.
    One of the defendants’ witnesses testified, inter alia, as follows:
    By the Court: Q. When a sawyer is pushing a board up against the saw, and he has his hand upon it, keeps his hand with proper pressure, is it possible for the saw to take that board back ? A. Yes, sir, it might; a twist of the lumber might throw it — a spring in the lumber as it is sawed might throw it back from under his hand clear back. Q. Suppose he has a board sawed through and leaves it in improper contact with the saw; is there danger of it being thrown back then? A. Yes, sir. Q. That would be carelessness ? A. Yes, sir. Q. If he is not handling this board right, may it occur in consequence of some careless manner of handling the board? A. It might. Q. As well as from defects in the board itself? A. It might; yes, sir. Q. Well, accidents may occur, then, from careless handling of the board? A. Yes; most of the accidents about a mill are from carelessness — the worst I have ever known. Q. If a sawyer is careful to handle his board right, and have it in proper position, there is not so great likelihood of any accident? 'A. Not so great. Q. And if there is a knot in the board, or if he sees the board closing on the saw, what is his duty? A. Throw it back. Q. If he would throw it back, there would be no accident ? A. No, sir.
    The charge to the jury was as follows, by White, J.:
    [“ In order to recover in an action of this kind, two things are ■essential. First, there must have been negligence on the part of the defendant which caused the injury, and, second, the plaintiff must not have been guilty of contributory negligence. Although a •defendant may have been guilty of very great negligence, yet if the plaintiff was also guilty of negligence which contributed to the injury the plaintiff cannot recover. A jury cannot, in cases of this kind, say the defendant was guilty of more negligence than the plaintiff. It must be a case free from contributory negligence on the part of the plaintiff. Now, the negligence charged upon the defendants is in the handling of the stick or board that was being sawed by Mr. George Frazier, one of the defendant firm. Negligence is the want of care — such care as an ordinarily prudent man would exercise under the circumstances, and the degree of care required depends upon the circumstances of the case. If very little danger is to be apprehended, it does not require as much care as where great danger may be apprehended, because the degree of care must ■correspond to the apprehended danger in any case. If the danger is very great it requires very great care. If the danger to be apprehended is very slight, that strong degree of care is not necessary. It is in evidence here that these buzz saws are dangerous, and very dangerous; that accidents occur with the very-best and most careful men. If the accident in this case is what we call an unavoidable accident, of course the defendants are not responsible. They are not insurers of the lives and safety of all the men about their premises. If the accident occurred without negligence, without carelessness on the part of Mr. George Frazier at the time, the defendants are not liable. You must first, in order that there may be a recovery for the plaintiff, determine and find that George Frazier, at the time he was sawing that board, was guilty of some act of negligence, by which it was .thrown back and hurt the plaintiff. The plaintiff himself could not explain how the board was thrown back, except that it was thrown back by the motion of the saw.]. [2.] Mr. George Frazier explains to you what he was doing át tbé time; he said he was ripping or sawing a board; when he was first on the stand he explained that he had a straight edgé bn the opposite side of the saw from him, where he was standing; and the board from three to five inches wide between the saw and the straight edge; that the saw had passed clear through the board, and he thought that the extension of the table may have gotten a little Out of order in some way and the straight edge tilted a little on that, by which it was thrown against the saw, and the saw instantly whirled it back; he thought it was the straight edge that struck the plaintiff and not the sawed board. Plaintiff thought it was the board, about four or five or six inches wide and some six of seven feet lodg. Mr. Frazier at first said the plaintiff was entirely mistaken ; that it was not the board; it was the straight edge that struck him, and Mr. Frazier could not explain positively how it occurred; he said he thought it was by the hoard tilting aftef it was sawed through, that the straight edge, in going over the board, would have to go over the width of the board before it would strike the saw, and the saw striking it whirled it back. He said there was an end piece', sometimes called a strip or hook, attached to the straight edge, whdch shoved against the board, and in that way shoved the boárd up. Afterward he said he might be mistaken in that position'; that it might be that the straight edge was on the other side of the board, and he was ripping off simply a strip half an inch or an inch wide. The plaintiff testified to á board about five bf six inches wide that was lying where he was hurt; ánd Mr¿ Frazier said it was possible that the board, as well as tlib straight edge, may have been thrown back toward the plaintiff; and probably that was the fact, that both the straight edge and the board were thrown back by the saw. [Now this accident, according to the testimony of Mr. Frazier, could not have occurred ffom any warp or binding of the board when it was being sawed, or from any knot in the board; that is, if the board had beeii entirely 'sawed through before the accident occurred. You will bear in mind that; according to the evidence, the circular saw was about 16 inches in diameter and projected above the table about three or four inches; there would only be that segment, if it was visible, above the table, and, while three or four inches bade, it would not, perhaps, be mofe than six or eight inches along the table. [By Mr. Patterson: Eight or ten. By the Court:] "Well, eight or ten inches along thé table'; that depends a little upon the height. Now, how did that accident occur % The testimony is that, after the saw passes through the board, it is the duty of the sawyer to push it off beyond the saw. If it had been pushed beyond the saw an accident cbuld not have occurred, because it is the saw that pulled the board back. How did it happen ? That is a question for you upon the evidence. Hid it happen through the carelessness of Mr. George Frazier in the handling of that board aftef it was sawed through, or of the guide 'board ? Although you may hot be satisfied that the accident was an unavbidable one (and it can hardly be claimed to be an unáv'oidable one), yet if it occurred without negligence on the part of Mr. Frazier, and such care as a prudent, correct sawyer would have exercised, then there is no liability on the part of the defendants — • remembering that the greater the danger the greater the care required. If it happened through negligence on his part in some way, then the first part necessary to the plaintiff’s recovery is established, that is, the negligence of the defendants. If you find that, then you pass to the other question — was the plaintiff guilty of contributory negligence ? However negligent Mr. George Frazier may have been, yet if the plaintiff was guilty of negligence on his part that contributed to the result, he cannot recover. Plaintiff says that his work was upstairs; he was what is called a bench hand, and he was working at a large window, circular top; the foreman told him to go down below to get a strip to tie the arch; it would be some three or four inches wide and some six or eight feet long. He says he went downstairs for that purpose. There was no negligence, therefore, in going downstairs; he was told to do that by the foreman.”] [3.]
    The latter part of the charge related to the question of contributory negligence and the measure of damages, not involved in the decision here. The charge concluded as follows: [“ On all these points you will take your own recollection of the testimony and draw your own inferences from it. If you find for the plaintiff, it will be your duty to find under all the evidence what damages he has sustained.”] [6.]
    The bill of exceptions was sealed as follows: “ The defendants’ counsel except to that part of the charge, which relates to the plaintiff’s contributory negligence, and to that part, and that only, bill of exceptions is sealed.”
    
      The assignments of error specified the action of the court below “ in not charging the jury that, under his own testimony, plaintiff was so clearly guilty of contributory negligence that he was not •entitled to recover in this suit, and in improperly submitting the case to the jury in his entire charge and opinion, and which whole charge is quoted in totidem verbis, as if repeated and reprinted here, :as part of this assignment of error2, 3, the portions of the charge enclosed in brackets, quoting them ; 4, 5, portions of the charge as to contributory negligence and damages, omitted; and, 6, the conclusion of the charge inclosed in brackets, quoting it.
    
      T. H. Baird Patterson, for plaintiff in error.
    A jury should not be allowed to infer negligence, without evidence. Baker v. Fehi* 97 Pa. 73. '
    Negligence must be proved affirmatively. D., L. & W. R. R. Co. v. Napheys, 90 Pa. 142; Hayman v. Pa. R. R. Co., 118 Pa. 835; Fairs v. Pa. R. R. Co., 12 Pa. 530.
    
      W. D. Porter, with him W. L. Bird, for defendant in error.—
    The only error assigned in this case is to that part of the charge which relates to the plaintiff’s contributory negligence, and to thajfc part only, was exception taken.
    
      The negligence of Geo. Frazier, in handling the board and applying it to the saw is established by the above evidence. It was reckless carelessness to permit a board to be thrown back after it was sawed through.
    The argument as to contributory negligence is omitted.
    Jan. 7, 1889.
   Sterrett, J.,

In that part of his charge covered by the second specification of error, the learned judge correctly said: In order to recover in an action of this kind, two things are essential : First, there must have been negligence on the part of the defendant, which caused the injury, and, second, the plaintiff must not have been guilty of contributory negligence.” After explaining-what constitutes negligence, etc., he proceeded to speak of the dangerous character of the circular saw, and submitted the question of defendants’ negligence to the jury as follows: It is in evidence-here, that these buzz saws are dangerous, and very dangerous ; that accidents occur with the very best and most careful men. If the accident in this case is what we call an unavoidable accident, of course the defendants are not responsible. They are not insurers of the lives and safety of all the men about their premises. If the accident occurred without negligence, without carelessness on the part of Mr. George Frazier at the time, the defendants are not liable. You must first, in order that there may be a recovery for the plaintiff, determine and find that George Frazier, at the time he was sawing that board, was guilty of some act of negligence by which it was thrown back and hurt the plaintiff. The plaintiff himself could not explain how the board was thrown back, except that it was thrown back by the motion of the saw.” There was no error in thus-submitting the question to the jury, if there was any evidence tending to prove that the injury complained of was caused by defendants’ negligence; but there was none. As stated by the learned judge, “ the plaintiff himself could not explain how the board was-thrown back, except that it was thrown back by the motion of the-saw.” How it happened to be caught by the saw, whether by mere accident, without any fault of the defendants, or otherwise, he could not undertake to say; nor is there afiy testimony that sheds a single ray of light on that subject. From an examination of the evidence before us, we are constrained to sayfihere is nothing in it that would warrant the jury in finding that the defendant, George Frazier, whe was operating the saw at the time, was guilty of negligence. - The implied finding of negligence by the jury, must have been, at -best,, a mere guess, arid not a legitimate inference from any of the facts.in evidence. In short, as to the first mentioned essential- to recovery, there was an entire failure of proof, and the jury should have been directed to find for defendant. It is error to submit a question of fact without sufficient evidence. In the absence of evidence that would warrant the jury in finding negligence of defendants-that caused the injury, no question can, of course, arise as to contributory negligence; • • '

Judgment reversed. T. R.  