
    Wilhelm Gaertner, Appellant, v. Schmitt & Schwanenfluegel, Respondent.
    
      Where the danger is obvious, the master need, not instruct a servant in the use of a machine •—■ accident from the use of a rip saw.
    
    A party employed in washing beer kegs was assigned to duty under a carpenter, who told him to saw some boards on a circular saw (work with which he was entirely unfamiliar), and one of the boards so cut being too long the carpenter ordered him to cut it off on a rip saw in use on the same table as the circular saw. The employee having objected, the carpenter set the gauge and told him that it was as easy as using the other saw, whereupon the employee went to the rip saw, pushed a piece of board through, “and all at once there was a jump in the saw,” and he found that the first finger of his left hand was cut off.
    
      Held, that the danger in this case being obyious to the employee, the master was ' not bound to point it out to him, nor to instruct him how to avoid it, and was not, therefore, negligent or liable to the employee for the injury done.
    Appeal by tire plaintiff, Wilhelm Gaertner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 15th day of February, 1897, upon the dismissal of his complaint directed by the court after a tidal at the New York Trial Term.
    
      August P. Wagener, for the appellant.
    
      William Allen Butler and John Notman, for the respondent.
   Barrett, J.:

The plaintiff went into the defendant’s employ in June, 1893. For a number of months he was employed in .washing beer kegs. In March, 1894, he was assigned to duty under the carpenter upon a line of work with which he was unfamiliar. On Wednesday morning, March 21, 1894, the carpenter told him to saw some boards on a circular saw in the shop, and instructed him how to do so. The plaintiff proceeded with this work for some three-quarters of an hour. Then he and the carpenter prepared to use the boards in repairing an icebox. Upon examination one of these boards proved too long for its purpose, and the carpenter ordered the plaintiff to cut it off on what is called a rip saw. This rip saw was upon the same table with the circular saw previously used. The plaintiff objected to the required use of the rip saw, and thereupon the car- ■ penter set the gauge and told him it was as easy as using the other saw. Plaintiff thus describes what then happened: I went there and I pushed that piece of board through; it was about three feet long, somewhat like that, and all at once there was a jump in the saw.” He then says that he found that the first finger of his left 'hand. was cut entirely - off and that the thumb was hanging by the skin. In subsequent portions of . his testimony the accident is dsscribed in substantially the same manner.

It is Undoubtedly the duty of a master who sets a servant to work at machinery to which he is unaccustomed to give him such instructions as are reasonable and necessary to protect him from injury. ■ A failure in this regard is negligence for which a recovery may be had. (Brennan v. Gordon, 118 N. Y. 489.) But it does not follow that instructions are necessary solely because the employment is a new one and accompanied with danger. Where that danger is open and obvious, words are-not needed to point it out to the servant, nor are instructions required showing him how to avoid it. In such a case negligence cannot be predicted of a failure to warn and instruct, since no such duty exists. (Crown v. Orr, 140 N. Y. 450, 455.)

We think this case is of the latter class. ' The danger in using the saw was perfectly obvious to the plaintiff. He knew as well as any one that if he allowed his hand to come in contact with it, he would sustain serious injury. The necessity of. holding the board firmly so that it would not fly up and throw his hand against the saw must have been present to his mind. Parts of his testimony léad to the inference that he pushed the board too far, and that the saw struck his hand only after it had gone clear through the wood, which would have been gross carelessness on his part. But, however that may be, there is absolutely no evidence to show that the accident occurred from a cause against which he should have been warned. He had done considerable sawing work on the same morning, without sustaining injury; and though he had been using a different kind of saw, there is nothing to show that the difference in the construction of the later saw rendered further instructions in the slightest degree necessary.

The judgment should be affirmed, with costs.

' Van Brunt, P, J., Rtjmsey, Williams and Patterson, ■ JJ., concurred.

Judgment affirmed, with costs.  