
    REICH v. IRONCLAD MFG. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 7, 1907.)
    1. Master and Servant—Personal Injuries—Contributory Negligence.
    Whether a servant was guilty of contributory negligence in continuing to use a buzzsaw after he knew that it wobbled held a question for the jury.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]
    2. Same—Admissibility of Evidence—Negligence of Master.
    In an action by a servant for injuries inflicted by a wobbling buzz-saw, testimony of one who left defendant’s employ four days before the accident that the machinery was out of repair three weeks before he left was admissible, especially where it was shown that the condition continued down to the time of the accident.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 916.]
    Appeal from Trial Term, Kings County.
    Action by Otto Reich against the Ironclad Manufacturing Company. From a judgment for plaintiff and an order refusing a new trial, defendant appeals.
    Affirmed.
    
      Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and MILLER, JJ.
    Abram I. Elkus (Carlisle J. Gleason and Lester J. Callan, on the brief), for appellant.
    Herbert C. Smyth (Charles C. Sanders, on the brief), for respondent.
   WOODWARD, J.

The plaintiff in this action lost a portion of one of his hands while operating a buzzsaw, known as a “ripper.” There was evidence from which the jury might properly have found that the defendant was negligent in furnishing a saw which was not in a proper state of repair, or, rather, that the machinery operating such saw was not in a fit condition, by reason of a lack of proper bolts, to hold the boxes in position, permitting the saw, operated at a high rate of speed, to wobble. The plaintiff, a man with only a limited experience in operating this saw, received the injury complained of, and the principal contention on the part of the defendant, on this appeal, is that the plaintiff was guilty of contributory negligence. The evidence warranted the jury in finding that the defective condition of the saw and machinery had been called to the attention of the defendant’s principal foreman, and that the latter had promised to have the same repaired, and this, it is conceded, operated to continue the liability of the master for a failure to provide reasonably safe machinery and appliances.

But it is insisted on the part of the defendant that the plaintiff knowing the tendency of the saw to- wobble, and having continued to operate the same after he knew that it was wobbling, he was guilty of contributory negligence as a matter of law. We are of opinion, however, that -the evidence presented a case for the jury. The plaintiff had operated the saw on two previous days when it was wobbling; and, while he testified that he had stopped its use on the day before .because he thought it dangerous, his experience had not been such as to convince him that, in the exercise of proper care, he might not continue to operate the same with safety, and the facts and circumstances were such that the jury might find that, while he knew of the defect in the machinery, he was in the -exercise of that degree of care which was demanded by the known conditions, and that the accident was not due to any negligence on his part. The mere fact that work is dangerous is not a reason why it may not be performed without negligence. It is undoubtedly dangerous to operate a buzzsaw under the best possible circumstances. A saw revolving at the rate of 3,000 revolutions a minute does not show its full size, and there are many things that may operate to make it dangerous. ■ When that saw is out of order, or the machinery is loose, the risk is increased, but it may be that the danger is not so entirely obvious as to make it' contributory negligence for the employe to continue to operate the same temporarily, while the master is given time to make the machinery safe, and in the case now before us the jury were justified in finding that the situation did not require the plaintiff to refuse to work. He knew that there was danger, but he had not assumed the risk of the master’s negligence, and, if he used the degree of care which the known imperfect condition of the machinery seemed to demand, he was not chargeable as a matter of law with contributory negligence. The man who preceded the plaintiff in operating this saw testified that the machinery had been out of repair for some time; that he had made temporary repairs and had operated the machine when the saw wobbled, and the plaintiff having himself operated the saw when it wobbled on previous days, without having any experience which justified him in concluding that it could not be operated safely with care, it was for the jury to determine from the evidence whether he had used the degree of care which the special circumstances required, and we think the evidence is sufficient to warrant the verdict.

We do not think it was error to admit the evidence of Hummel, who had previously operated the saw, that the machinery was out of repair three weeks before he left, he having left the employ- of the defendant some four days before the accident, and especially where it was shown that the condition continued down to the time of the accident. This is the only exception urged on the admission of evidence, and the case does not present reversible error.

The judgment and order appealed from should be affirmed, with costs. All concur.  