
    William Tannhauser, Appellant, v. William E. Uptegrove and Brother, Respondent.
    Second Department,
    July 24, 1906.
    Master and servant—negligence — assumption oí risk by master — promise to repair circular saw—erroneous nonsuit.
    When a servant complains of the danger of the place where he is working and the master agrees to repair the same after a certain time and instructs the servant to continue work, the master assumes the risk of inj ury from the time of the promise until the expiration of the time specified. Under such circumstances it is at least a question for the jury as to whether a servant was negligent in working two days in reliance upon a promise of a superintendent to repair ‘‘pretty soon,” and a nonsuit is error.
    In an action to recover for inj uries received from a circular saw where plaintiff has offered uncontradicted evidence that he feared his hand might get caught in the hole in his working table worn by the operation of the saw, and that he notified the superintendent, who admitted that it required repair, it is error to nonsuit on the ground that “ there is nothing in the case to show that anyone would apprehend danger from that machine in the condition in which it was.”
    Appeal by the plaintiff, William Tannhauser, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of March, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Edward W. S. Johnston [Maurice B. Blumenthal and Daniel W. Blumenthal with him on the brief], for the appellant.
    
      Frank Verner Johnson, for the respondent.
   Hirschberg, P. J.:

This action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the employ of the defendant.

The plaintiff was working at the time of his injury on a rip-saw machine, a circular saw which came up through a slit in the top of a flat table and revolved towards the plaintiff’s hands. He was serving it with thin boards, and claims that his injury was received by reason of the fact that the saw had worn away the slit to such an extent as to render the operation of the machine dangerous.. As he was nonsuited, every reasonable inference is to be taken in his favor, and as no evidence was offered by or on behalf of the defendant, the facts as established by the plaintiff’s evidence were nncontradicted. It was clearly proved that a couple of days before the day of his injury he became apprehensive that his Angers might get caught in the hole which had been worn away by the operation of the saw and the attrition of the sawdust, and that an accident might result; that the attention of the defendant’s superintendent was called to the condition of the table; that the superintendent admitted that it required to be fixed, promised to have it Axed pretty soon, and instructed the plaintiff to continue work in the meantime. The plaintiff did continue work pursuant to such instruction and promise, and by the accident lost the Angers of the left hand.

I do not see how the nonsuit can be upheld. In Citrone v. O'Rourke Engineering Construction Co. (113 App. Div. 518) this court recently held that where on the complaint of a servant as to the safety of the place where he was at work, the master told him to go to work and that after a certain time it would be repaired, the master assumed the risk of injury from the time of the promise until the expiration of the time specified. Following that decision it would be, in this case at least, a question for the jury whether it was negligence on the part of the plaintiff to continue work for a period of two days in reliance upon a promise to repair “ pretty soon.” '

The nonsuit in this case, however, was distinctly based upon a ground which is clearly untenable. In disposing of the defendant’s motion to dismiss the complaint, the learned trial justice said: “There is nothing in the case to show that any one.would apprehend danger from that machine in the condition it was in. I must grant this motion.” It certainly cannot be logically contended that a situation which, without dispute, did occasion fear of danger on the part of the plaintiff, which fear was admitted by the defendant’s superintendent to be well grounded, and which admission was coupled with a promise to speedily remove the danger, is a situation which would not occasion apprehension to any one.

The judgment should be reversed.

Hookeb, Gaynob, Rich and Hilleb, JJ., concurred.

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