
    Daniel Webber, App’lt, v. Winfield Piper, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    Master and servant—Duty or master—Negligence.
    The plaintiff was injured while using a circular saw in the factory of the defendants, who were his employers, and gave evidence tending to establish that the accident was due to the dullness of the saw and the need of its being sharpened and reset. These saws became dull by use, and the defendant had furnished duplicates so that one could replace the other, when there was need, without delay to the workmen. It seems to have been the duty of a fellow servant of plaintiff to care for and reset and sharpen the saws when necessary. On the morning of the accident, the plaintiff asked said fellow servant for another saw, because the one in use. was dull, and he replied that he had no time then, and directed plaintiff to-go on with his work, promising to see about it at noon, before which time the injury occurred. Held, that the plaintiff was properly non-suited. That there are many matters of detail in the management of safe and adequate machinery which must be entrusted to the operatives, and as to which the master owes no duty except the employment of competent. Workmen. That this was a case of that character.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of defendant dismissing the complaint entered at the trial term.
    
      James C. Church, for app’lt; E. M. Shephard, for resp’t.
    
      
       Affirming 38 Hun, 353.
    
   Finch, J.

The plaintiff was injured while using a circular saw in the factory of the defendants, who were his employers; and gave evidence tending to establish that the accident was due to the dullness of the saw and the need of its being sharpened and re-set. These saws became dull by use, and the defendants had furnished duplicates so that one could re-place the other when there was need, without delay to the workmen. It seems to have been the duty of one Myers, who was also a servant of the defendants, to care for and repair the machinery and re-set and sharpen the saws when necessaiy, and the plaintiff testified that, on the morning of the accident, he asked for another saw because the one in use was dull, and Myers replied that he had no time then to sharpen a saw and directed plaintiff to go on with his work, adding that at noon he would see what he could do. Before that time arrived the injury occurred. On this state of facts the plaintiff was non-suited, and that judgment has been affirmed by the general term.

We are of opinion that the decision was correct, for the reason that the master’s duty was performed when he furnished suitable saws and the means and conveniences for keeping them sharp and properly set.

The saw, though dull, was not defective in any legal sense, and the negligence if any, was that of Myers, whose, duty in sharpening and setting the saws was that of a. fellow-servant. A contrary rule might carry us to the extent of saying that where the master furnished sufficient, and adequate machinery, but its running became dangerous to the operative unless well-oiled, that the owner who had furnished the oil and cans and a suitable person to' keep the journals and bearings properly oiled, was liable for the neglect or omission of that servant.

There are many matters of detail in the management of safe and adequate machinery which must be entrusted to the operatives and as to which the master owes no duty, except the employment of competent workmen, and we deem this a case of that character. The line of division between the duty of the master to furnish and maintain safe and adequate machinery, and that of the operative to manage and handle it with purdence and care is difficult to define by any general description, but is quite obvious when each case as it arises comes under consideration. In the one before us the neglect, if any, was in a detail of the management of the machinery. A master builder might furnish proper tools to his workmen, but it would not be his duty to sharpen every chisel as it became dull or set every saw when that need arose.

The appellant relies upon the case of Kain v. Smith (89 N. Y., 375). If in that case the master had furnished another jigger, perfect in all respects and safe and adequate for use, and the neglect had been that the foreman used the old one which had become unsafe, when he might have used the new one, a very different case would have been presented. Here the.master supplied saws enough and the means of sharpening and resetting, and if the servants neglected to avail themselves of the means of safety provided, the master was not in fault, for the saw was not defective but merely dull from use. Its ordinary efficiency was impaired, but it had not thereby become a defective or dangerous machine.

The master, on the facts before us, was not negligent or in default, and for that reason incurred no liability for the injury which happened.

The judgment should be affirmed, with costs.

All concur.  