
    Richard Piggott, Resp’t, v. Lynn H. Hanchett, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Master and servant—Negligence.
    In an action for negligence it appeared that plaintifi was employed by defendant to perform other duties beside sawing wood and that he had no experience with circular saws. He testified that defendant set him at work at the circular saw without instructions; that such saw was not properly braced and that by reason thereof he was injured. Defendant denied having set him at that work and testified that the saw was properly braced. The charge of the judge favored the defendant. Held, that a verdict in plaintiff’s favor would not be disturbed.
    Appeal from judgment for $500 in favor of plaintiff.
    Action for personal injuries. Plaintiff was employed by defendant to drive a horse and cart for the delivery of coal, etc., and trimmed coal and split wood. He had never worked on the circular saw before, and had no knowledge or experience of that or of any other kind of machinery.
    The circular saw was fastened to a table and connected by a belt to the motive power. Up to about a w.eek before the accident the table was inside of the shed and firmly fastened by spikes and stays to the side of the building and was operated by horse power.
    The defendant was getting new machinery and having a new table built, intending to run the saw by steam power, and about a week before the accident he had the table removed from inside the building and “put it out temporarily ” in the roadway, about six feet from the side of the house, until the new table should be completed, which was being built inside the building and was run by steam power.
    Plaintiff testified that he was set at work at this machine by defendant without instruction; that the foundation on which it. rested was ashes, garbage, etc., and that it was not properly braced; that it was started with a jerk and vibrated; that he had to stand on a box to work. While cutting the first stick his-hand was lacerated.
    Defendant denied that he set plaintiff at this work, and testified that the machine was properly braced and did not vibrate.
    The judge charged that plaintiff took the risk of operating the-machine; that he was bound to establish affirmatively that he' himself was not negligent and that defendant was at fault; that if the machine was originally put up safe and secure' defendant is not to be charged, if it came out of repair, unless it is shown,. which has not been done in this case, that that had existed long enough to apprise him of that fact, or that he was notified of the-fact; that the burden of proof was on plaintiff to establish affirmatively his case, and if he fails to do it on any point defendant was entitled to a verdict.
    
      Wm. M. Mullen, for app’lt; George J. Greenfield, for resp’t.
   Dykman, J.

This plaintiff, while at work for the defendant sawing wood by a circular saw operated by steam, had his hand so injured by the saw as to render amputation of the hand necessary.

This action is for the recovery of the damages resulting from such injury, and the usual questions arising in actions of negligence are involved here.

The plaintiff obtained a verdict and the defendant has appealed.

There were sharp disputes in the testimony, and so the whole-case became a proper one for the jury.

The charge was severely against the plaintiff, and in one respeck erroneously so, and laid upon him a burden heavier than the law imposed, yet the burden was sustained, and we cannot disturb the verdict.

ISTo errors were committed, and the judgment and order denying a motion for a new trial on the minutes should be affirmed.

Barnard, P. J., and Pratt, J., concur.  