
    Albert E. Ogley, Pl’ff, v. William E. Miles et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    Master and servant—Negligence—Failure to instruct.
    Plaintiff, a boy of sixteen, in defendants’ employ, was asked by defendant if he could saw, and on being told that he could not, put him at work at a buzz-saw, but gave him no instruction how to use it and nothing was told him as to the pusher usually employed for the work. He was obliged to stand on tiptoe to do a portion of the work, and the saw striking a worm. hole in the wood he was pushing, his hand became injured by it. Held, that a non-suit was error ; that the case should have gone to the jury on the questions whether he was of sufficient size to operate the saw with a reasonable expectation of safety, and whether reasonable care was taken to instruct him in the work.
    Motion by plaintiff for a new trial on a case and exceptions ordered to be beard in the first instance at general term, the plaintiff having been non-suited at the circuit.
    
      Thomas Raines, for the motion; Theo. Bacon, opposed.
   Dwight, J.

The action was for damages resulting from a bodily injury sustained by the plaintiff while operating a buzz-saw in the employment of the defendants, who were manufacturers of sash and blinds. The plaintiff was at the time less than sixteen years old, and was small of his age. He had worked in sash and blind factories at times during the three or four previous years, bnt generally at light hand-work; had two or three times been put at work at a buzz-saw, but only for a few hours at a time and never at work of a character similar to that ifi which he was engaged when he received the injury complained of. He had seen buzz-saws operated and knew from general reputation that they were dangerous machines, but had no practical experience of their dangers or bow to avoid them, and had never witnessed an accident from the use of a saw. He had been two weeks in the defendants’ shop at work at what the foreman described as general boys’ work, such as morticing, boring, sticking, pointing pins, sweeping, picking up kindling-wood and such work. On the day before the accident one of the defendants came to him and asked him if he could saw. He testifies: “I told him no, but I supposed I could learn, and that I would have to learn if I learned the trade.”

The defendant then took him to the foreman arid told the latter to put him at the saw and set it to sawing. The foreman did so. The saw was used for slitting blocks or short pieces of lumber into narrow strips; it was stationary, revolving in the midst of a table upon which the blocks or pieces to be sawed were laid flat and pushed against the saw. This required a force which at the same time propelled the block and held it down to a table. The block was sawed through to the end, so that at the end of each splitting the hand or instrument by which the block was held and propelled was brought up to or even with the edge of the, saw. It was usual for the operator to use, for this purpose, a pusher or stick twelve or fifteen inches long with a notch at the end. The plaintiff testified that nothing was said to him by the foreman about the use of the pusher, and that he could not make use of it because he was not tall enough; of which the explanation, suggested, is that he did not stand high enough to kring his weight to. bear on, the end of the pusher so as to hold the block down to the table. He testified that he was obliged to raise himself on tip toe and reach over as far as he could reach to put the block through with his hand.

He received no instructions in regard, to the operation of the saw or the dangers to be avoided in its use; the foreman merely set the gouge at the required width and told the boy to go to work and saw up the pieces which lay in a pile near the table. He sawed that day (Saturday) until noon; on Monday morning resumed the work and continued it until the accident occurred, shortly before noon of that day. There was some reason to suppose that the immediate cause of the accident was a worm hole in the end of the piece he was sawing at the moment, which could not be seen until it was cut open by the saw, and that the sudden acceleration of the motion of the block, when the saw struck into the worm hole, threw his hand against the teeth of the saw.

We think this case should have gone to the jury upon at least two questions presented by the evidence; first, whether the boy was of sufficient size to operate a saw with reasonable expectation of safety to himself; and, second, whether, in view of his youth and relative inexperience, reasonable care was taken to instruct him in the proper use of the machine and in regard to the precautions proper to be taken to protect himself from injury in its use. A negative answer to either of these questions, in the absence of contributory negligence on his part, would probably entitle the plaintiff to a verdict. It was, undoubtedly, the duty of the defendant to exercise reasonable care in the selection of the person to operate the saw; and an important element in the selection may have been the size or height of the operator. If it was true that this boy was not tall enough to operate the machine with reasonable safety, and the fact was apparent to his employers, with their knowledge of the requirements of the operation, then it was negligence on their part to put him at the work.

It was also then’ duty to give him such instructions in the use of' the machine, in respect to the dangers to be avoided, as the youth and inexperience of the employee made necessary. His youth was probably apparent; it was their duty to exercise some care to ascertain what experience he had had in the operation of buzz-saws. According to the evidence in the case the only question asked him on that subject was if he could saw, and his answer was that he could not, but he supposed he could learn. This was certainly not such information as should have encouraged the defendants to set him at work on a dangerous machine without instruction in its use.

The case of Hickey v. Taaffe, 105 N. Y., 26; 6 N. Y. State Rep., 426, which is cited by counsel on both sides of this argument, seems to be authority for the contention of the plaintiff on the last proposition considered. There the court, by Peckham, J., says: “There is no doubt that, in putting a person of immature years at work at machinery which in some respects may be termed dangerous, an employer is bound to give the employee such instructions as will cause him to fully understand the difficulties and dangers of his position and the necessity there is for the exercise of care and cautionand the proposition is emphasized to the effect that mere formal instruction is not sufficient, but that such person, so employed, must be brought to an actual understanding of the dangers, and be made to appreciate them and the consequences of a want of care. In that case it was held that a nonsuit should have been granted because it was conclusively shown by the evidence of the plaintiff herself, that she “ was aware of and fully appreciated and understood the dangers to be apprehended from working the machineand that it was equally clear, from the same source of information, that she was perfectly competent to operate the machine long before the accident occurred; that she had acquired her knowledge from practical experience and knew all that the defendant could have told her on that subject.

The evidence in this case certainly does not conclusively establish the facts upon which it was held, in that case, that the non-suit should have been granted, but, on the contrary, made, as we think, a fair question for the jury upon both of the propositions which we have considered.

If so the nonsuit was improperly granted and the motion for a new trial must prevail.

Hew trial granted, with costs to abide the event.

Barker, P. J., and Macomber, J.', concur.  