
    Samuel Minsky, Respondent, v. Israel Offenberg and Lena Offenberg, Doing Business under the Trade Name and Style of The Brooklyn Show Case Company, Appellants.
    First Department,
    November 5, 1915.
    Master and servant — negligence — injury by rip saw — failure to guard saw — obligation of employer to use new and improved machines.
    Where, in an action to recover for the loss of a finger while working a rip saw in defendant’s shop, the complaint charged the defendant with many forms of negligence, but did not allege that the machine which the plaintiff was working was of an obsolete pattern or was not of a proper kind and there was a decided preponderance of evidence that the saw was guarded and the plaintiff was permitted to prove over objection that for some years prior to the accident there had been in common use an automatic rip saw, in working which the operator was not required to use his hands on the wood, it was error to submit to the jury the question whether or not the machine with or without the guard was a proper kind of machine to give the plaintiff to work upon because of the others which were in general use.
    An employer is under no obligation to use only the newest and most approved machines, provided those which he does use are adequate for the purpose required, kept in good repair, and properly protected.
    Appeal by the defendants, Israel Offenberg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1914, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 2d day of December, 1914, denying defendants’ motion for a new trial made upon the minutes.
    
      Theodore H. Lord, for the appellants.
    
      Moses Feltenstein, for the respondent.
   Scott, J.:

Plaintiff while working a rip saw in defendants’ shop lost a finger. The sharply contested question of fact in the case was whether or not the saw was guarded. Plaintiff, of course, said it was not, but the decided preponderance of evidence was to the effect that it was. Although the complaint charged the defendants with many forms of negligence, there was no charge that the machine on which plaintiff was working was of an obsolete pattern or was not a proper machine to do the work for which it was used. The court, however, over defendants’ objection and exception, permitted the plaintiff to prove that for some years prior to the accident there had been in common use an automatic rip-saw, in working which the operator was not required to use his hands on the wood. Defendants insisted that the jury should be instructed that if the saw was properly guarded the plaintiff could not recover. It was conceded that this would be a proper instruction on that branch of the case,” as plaintiff’s counsel phrased it, but he insisted that the question should also be submitted to the jury whether or not the machine, with or without the guard, was a proper kind of machine to give the plaintiff to work upon, because of the others which were in general use, and the court so charged. This was clearly error. An employer is under no obligation to use only the newest and most approved machines, provided those which he does use are adequate for the purpose required, kept in good repair and properly protected. Except as to the disputed question of a guard, there seems to be no doubt, upon the evidence, that defendants’ machine, if not of the latest pattern, fulfilled the above requirements. As has been said, no question was raised by the complaint as to the adequacy of the defendants’ machine, and they were not called upon to prepare to meet any such issue.

In view of the preponderance of evidence in favor of defendants’ claim that the saw was properly guarded, we must assume that the jury rendered its verdict upon the question, which was improperly submitted to it.

The judgment and order appealed from are reversed and a new trial granted, with costs to appellants to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarice, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  