
    Byron Finkle, an Infant, by Elisha B. Middleton, His Guardian ad Litem, Appellant, v. Bolton Landing Lumber Company, Respondent.
    Third. Department,
    December 28, 1911.
    Blaster and .servant — negligence—injury -by circular -saw — failure to «guard saw — tripping .on defective floor —proximate «cause.
    Where one employed to operate a circular saw claimed to have thrust his hand against the unguarded saw owing to the fáct that he tripped over ■nails in the floor which were hidden by -sawdust, it is-error for the court to take from ike’jury the question of -the defendamtisnegligence inJaffiag to .guard the-saw-.on the theory that it was not the proximate cause of the accident.
    The tripping and the unguarded saw were concurring causes of the aeci- ' dent, so that if it happened as claimed by the plaintiff each was an effieieut canse "without the operation of which the accident would not. have happened..
    It cannot be held as a matter of law that the master was not bound to guard the saw when it revolved from twelve to sixteen inches from the side of an alleyway, and could have been guarded without interfering with its- operation, which course was. adopted on similar machines in other mills. The propriety and necessity of a guard was, a question of fact.
    Smith, P. J., dissented.
    Appeal by the plaintiff, Byron Pinkie, an infant, from a judgment of the Supreme Court in favor of the defendant, entered in the- office of the clerk of the county of Warren on the fifth .day of May, 1911, upon the verdict of a jury, and! also from an order entered in said’ clerk’s office on the 12th day of June, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      James A. Leary and Walter A. Fullerton, for the appellant.
    
      Lyman Jenkins,, for the respondent.
   Per Curiam :

. The plaintiff was employed by the defendant as tender to an edging machine in a sawmill. According to the testimony of plaintiff himself, while he was in the discharge of his duties he caught his shoe between two nails hidden by sawdust in a defect in the floor and, in endeavoring to save himself from falling, he involuntarily threw out his right hand, which came in contact with one of the saws of the edging’' machine, so mangling it that amputation of most of the hand became necessary.

The edging machine consisted of' a long table frame about two and a half feet above the floor, upon which were adjustable saws, the nearest one to the alleyway along the side being about sixteen inches.

The plaintiff was a young man about eighteen years old and had worked somewhat about the mill, and was ordinarily familiar with it and its machinery. The mill was designed for the sawing’ of logs into lumber and was a rough, crude structure.

Several witnesses testified in behalf of the defendant that the accident did not happen as claimed by the plaintiff and that he did not catch his foot and fall, but that while standing near the saw, not attending to any work of the defendant, he carelessly let his hand come in contact with it.

We would have no hesitancy in affirming the judgment except for the fact that the learned trial court took from the jury all question with respect to the duty of the defendant to guard the saw, on the ground that its unguarded condition was not the proximate cause of the accident on the plaintiff’s theory as to the manner in which it happened.

The tripping of the plaintiff from the defect in the floor, if he did trip as claimed, was not necessarily the sole proximate cause of the accident. The tripping and the saw were concurring causes of the accident, and if the accident happened as the plaintiff claims it did each was an efficient cause without the operation of which the accident would not have happened. There may be more than one proximate cause of an accident, if each of the causes asserted can be seen to have been an efficient one without which the injury resulting would not have been sustained. (Sweet v. Perkins, 196 N. Y. 482; Leeds v. N. Y. Telephone Co., 178 id. 118; Johansen v. Eastmans Co., 44 App. Div. 270.)

We do not think it can he said as matter of law that the defendant was under no duty to guard in any manner the saw upon which plaintiff was injured. The top of the saw was about three feet from the floor and twelve to sixteen inches back from an alleyway running along the side of the machine. It was proved on behalf of the plaintiff that the saw could have been boxed in a way not to interfere with its operation and that this was done on similar machines in other mills.

Upon the facts proven it was not for the court, as matter of law, to say that a guard was unnecessary, as was held by Wynkoop v. Ludlow Valve Mfg. Co. (196 N. Y. 324) and kindred cases, upon which the respondent relies; hut the propriety and necessity of such guard became a question of fact for the jury under the rules laid down in Martin v. Walker & Williams Mfg. Co. (198 N. Y. 324) and Kirwan v. American Lithographic Co. (197 id. 413).

It was, therefore, a question of fact for the jury to determine whether or not under all the circumstances the defendant should have in some way guarded the saw, as well as whether under all the circumstances it was the duty of the defendant to repair the floor; and also, of course, whether the accident happened as the plaintiff claimed it did, or because of his own negligence.

For the reasons stated, the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  