
    Annie Pockrass, as Administratrix, etc., of Jacob Pockrass, Deceased, Respondent, v. Louis Kaplan, Doing Business under the Firm Name and Style of “National Show Case Company,” Appellant.
    Second Department,
    January 17, 1913.
    Master and servant — Labor Law, section 81 —failure to replace guard on circular saw — when master not chargeable with knowledge that guard was removed —=■ charge.
    Section 81 of the Labor Law imposes upon a master the duty of ‘1 promptly ” replacing guards on machinery where they have been removed in order to make repairs and this duty cannot be delegated.
    But where a guard has been removed without the direction or knowledge of the masterhe is entitled to a reasonable time within which he or his superintendent in the exercise of ordinary care and inspection could have discovered its absence and caused it to be replaced. What is a reasonable time depends upon the circumstances.
    Hence, where a guard to a circular saw furnished by a master was removed by a workman in order to do wprk which required its removal, and within half an hour of such removal another employee used the saw for work with which the guard would not interfere without replacing it, which resulted in the death of a fellow-workman, against whom a piece of lumber was hurled by the revolving'saw, it is error to refuse to charge that the lapse of the half hour did not necessarily charge the master with notice that the guard had been removed.
    Appeal by the defendant, Louis Kaplan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March,' 1912, upon the. verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 2d day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      E. Clyde Sherwood [Joseph F. Murray and Amos H. Stephens with him on the brief], for the appellant.
    
      Thomas J: O’Neill [L. F. Fish with him on the brief], for the respondent.
   Carr, J.:

The plaintiff has recovered a judgment against the defendant for damages resulting from the death of her decedent through the alleged, negligence of the defendant, and from this judgment the defendant appeals. There is but little dispute as to the main facts of the case; and the arguments on this appeal by the appellant are confined principally to questions of law.

On March 24, 1910, the decedent, Jacob PockraSs, was at work in the employment of the defendant in a cabinet-making shop in the borough of Brooklyn. While so at work he was located some eighteen or twenty feet away from a bench on which was being operated a circular saw that protruded for several inches above the level of the bench. This saw was operated by steam, and its speed was about 2,200 revolutions a minute. Another employee of the defendant, one Padone, was engaged at the saw bench ripping a plank into' narrow strips. While so engaged Padone lifted up one of the strips which had been ripped from the plank, in order to place it on a pile of strips near by. This particular strip fell from his hand and struck the top of the revolving saw- The speed of the revolution of the saw caused it to be hurled in the air with great force, and to come in contact with the body of Pockrass, causing him such a severe injury that he was thrown from his feet, and died in a few minutes thereafter.

The plaintiff claimed that the defendant was negligent in two particulars, either or both of which caused the injury to the decedent. One of these claims was to the effect that Padone was a physically incompetent servaht, and that the defendant had notice of such incompetence, and was thereby guilty of negligence in continuing him in his employment. The other claim was that the circular saw in question was not properly guarded within the requirements of section 81 of the Labor Law, and that through the failure to so guard said saw the strip of wood in question was permitted to come in contact with its top as it revolved, and thus to receive such force of propulsion as to 'cause the injury and death of Pockrass. There is no question in the case that at the time of the accident there was no guard on or about the revolving circular saw, and that the narrow strip of wood did fall from the hand of Padone and come in contact with the saw, and was thus hurled through the air so violently as to strike Pockrass, who, as before stated, stood a considerable distance away from the saw table.

The ease was submitted to the jury on the theory that, if it found that Padone was physically incompetent for the work in question, to the knowledge actual or imputable of the defendant, and such incompetency caused the accident in question, then a verdict might be rendered in favor of the plaintiff. It was likewise charged that if the circular saw was at the time of the accident unguarded, and that by reason of the lack of such guard the accident in question was caused wholly or partly, then a verdict might be rendered against the defendant, if the proofs disclosed a lack of reasonable care on the part of the defendant in permitting the saw to be used without a guard. It appeared from the proofs that the defendant had furnished a guard for use on this circular saw, which, if it had been employed at the time of the accident, would have been sufficient to prevent the falling strip of wood from coming in contact with the top of the saw, but which had been removed from the saw about half an hour before the accident by one Andersen, a fellow-workman, and which had not been replaced by Andersen after he got through the performance of the special work that he was then engaged in, and which had been permitted to lay by by Padone without being replaced, while he undertook to use the saw. The use of the guard would in no way interfere with such use of the saw as Padone was making. The space of time during which the guard was left off the machinery prior to the accident was' described by the witnesses as being about a half hour.

Section 81 of the Labor Law provides in part as follows: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery, vats or pans, while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 81, as amd. by Laws of 1909, chap. 299; since amd. by Laws of 1910, chap. 106.)

The respondent now contends that the duty of the defendant under this provision of the statute was an absolute one, and called upon him to keep the machine in question guarded at his peril during every moment of its use. This, however, was not the theory upon which the trial court submitted the case to the jury, as appears from the following request to charge and its acceptance by the trial court: “ Defendant’s counsel: I ask yóur Honor further to charge, that if the defendant furnished a suitable guard and used reasonable care, in seeing to it that that guard was used uppn the machine for which it was furnished, that the temporary absence of the, guard, removed by a fellow servant, cannot be chargeable to this defendant. The Court: I so charge.” To this statement, .of law the respondent’s counsel took no exception. The record' shows a further request to charge and a ruling of the trial court thereon as follows: ‘‘Defendant’s counsel: I ask your Honor further to charge, that the absence of the guard for a half an hour or thereabouts from the .machine, is not such a length of time as would necessarily place the defendant upon notice that the guard was not being used upon the machine. The Court: I decline to so express myself.” The refusal of the. court to charge this request is claimed to have been reversible error.

The proofs show that Andersen had removed the guard, not for the purpose of making repairs of any kind, but to use the saw for a kind of work in which the presence of the guard was impracticable, according to his claim. When he finished x this work he negligently faded to replace the guard. Although Padone was Ms helper he gave him no directions to replace the guard, which stood nearby ready for use. The duty of replacMg the guard “promptly ” was imposed upon the master by the statute and was not delegable (Pinsdorf v. Kellogg & Co., 108 App. Div. 209), but where the guard had been removed without his direction or knowledge, then he was entitled to a reasonable time m which either he or his supermtendent or foreman, by the exercise of ordinary care in inspection,, could have discovered its absence and caused it to be replaced. What should be a reasonable time would depend upon the surrounding circumstances. There is no proof in this case that the master or his supermtendent, one Stefano, had actual knowledge that the guard was not in use when Padone was at work at the sawing bench. Hence the charge of the court should have instructed the jury clearly as to the circumstances under which notice was imputable to the master. The defendant requested an instruction to the jury to the effect that the lapse of a half hour would not in itself necessarily charge the master with notice. This request was proper. It was not obligatory upon the trial court to adopt the very language of the request. Yet the request was refused by the trial court without any attempt to convey the same idea in other or better terms, and its refusal might well have been understood by the jury as a rejection by the trial court of the fundamental proposition contained in the request itself. If the main charge had been sufficiently explicit on this point, this court might be slow to see error in the refusal to charge as requested. But, considering the main charge together with this request to charge and its refusal, we think that prejudicial error resulted.

In view of our conclusion on this point we deem it unnecessary to discuss the other points raised by the appellant.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Woodward and Bich, JJ., concurred.

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