#### Peter Carron, Respondent, *v.*The Standard Refrigerator Company, Appellant.

Third Department,

November 13, 1907.

Master ,and servant — negligence — injury by • circular saw — when instruction as to danger unnecessary — erroneous charge — evidence — characterization of method as dangerous.

The rule that a master must instruct his servant concerning the dangers of his work has no application where the servant is familiar with the details of the work, the operation of the machine and the dangers connected therewith'.

Hence, when it-is shown that an adult employee, who was injured by a circular saw while sawing three boards superimposed, had been engaged in the same work for two years and was familiar with the operation iof the saw 'and was accustomed to saw three hoards at once, it is error to charge in substance that it was the duty of the defendant to instruct the employee of the dangers of sawing three boards at once and that two years’ experience was- not. equivalent to instruction.

In an action to recover for injuries so received it is error to. ref use to charge that, even if the jury find that the saw and boards jumped and twisted on the occasion of the accident, it is not sufficient to charge the defendant with negligence in the absence of proof as to the cause of the twisting, and that such cause' was" .owing to the negligence of the defendant.

In such action it is error to permit an expert witness to testify that it was more dangerous to saw three hoards at once than to saw one, foir while such witness may properly describe the process and state what would or might happen therefrom, he is not entitled to characterize the one as more dangerous, that being the precise point in issue and, therefore, a matter for the jury.

*297Appeal by the defendant, The Standard Refrigerator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 2d day of February, 1907, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 18th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Edward W.*Douglas, for the appellant.

*John*Scanlon, for the respondent.

Cochrane, J.:

This is an action for negligence. Plaintiff was injured while operating a circular rip saw in the service of defendant. The saw revolved on an axis and its blade protruded through an aperture in a table and about an inch and a half above the surface thereof. The operator standing by this table pushed the boards which were being sawed over the surface of the table and against the saw.

Plaintiff testified in substance that at the time of the accident the defendant’s superintendent directed him to saw; simultaneously three boards by placing them on top of. each other; that the saw was dull and pushed hard, and the table loose, which circumstances he communicated to the superintendent, who told him to proceed with the work and that he (the superintendent) would come around and fix the saw and table; that plaintiff proceeded to carry out the superintendent’s directions and workéd about forty minutes, the latter in the meantime not having" sharpened the saw or adjusted the table, when as the plaintiff was sawing three boards as directed the saw twisted or bent, throwing the boards away and causing plaintiff’s hand to come in contact with the saw, thereby producing the in jury. There was also evidence to the effect that a board in the process of being sawed sometimes binds the blade of the saw which revolves toward the operator with the consequent tendency that the board will be thrown toward the operator or thrown "upward and caused to “ jump,” which was what happened to plaintiff at the time of the accident, according to his testimony, and that such tendency of the boards to bind and to be throivn upward is increased when three boards are sawed simultaneously and that the operator is less able to *298see the effect on the saw blade of the lower boards and has greater difficulty' in controlling their action.

The defendant contended that it had provided instrumentalities for the sharpening of the saw and that it had been plaintiff’s custom, and that it was his duty to sharpen the isaw from time to time; that its superintendent did not direct him on the occasion in question to saw three boards simultaneously, and that it had been plaintiff’s frequent and uniform custom during the two years in which he had been in defendant’s service to saw boards, in that way ; that the table was not loose or out of order, and that the work in question was not more dangerous to plaintiff because of the method of its performance '■

In charging the jury the learned trial justice said: “ It is the duty of a master- upon .setting his servant to work at an employment which is dangerous, the dangers of which are not known to the employee, to the servant, and are known to the master, to give him some reasonable notice or wnrning of these dangers, bfow the plaintiff claims that he was told to run through these three boards; that it was extra dangerous, and that he was not told of it. The defendant says it was not extra dangerous to run three boards, and also says that lie was not told to run three boards. If you find that this man was put to work running these three boards through or over this saw that Was dull and wabbly and uncertain hi its movements, and that'he.was injured as a result of these very dangers which were not known or apparent to him, and that' he did not contribute, to that injury in any way by carelessness on his part, then you may find in this case a verdict for the plaintiff.” At the conclusion of the charge, counsel for the defendant said: ■“ I wish to except to that portion of the charge where the court says in substance that it was the duty of the defendant under the circumstances in this case to give instructions to plaintiff, and'in that connection I ásk the court to charge the jury that the two years’ experience in operating these machines was equivalent to instructions, and relieved the defendant of the obligation of giving instructions under the circumstances as appear in this ease.” The court replied: “ I decline to charge in the language asked, except that the jury may take into consideration the amount óf experience this man had had *299there in running this kind of a saw or other similar saws,” to which defendant excepted.

I think this charge and refusal to charge constitute reversible error. Plaintiff had been engaged in the same kind of work for defendant with this and other saws about two years: He was surely familiar with their operation. The defendant’s superintendent testified as follows: “ I had observed Carrón sawing those boards .by putting one or two or three over the other before the day of the accident; I have observed him taking two, three and four often on top of each other; he.did that right along for over a year; it had been customary for him to saw boards two and three and four on top of the other in that manner; it was done in that mill by the other employees right along.” This is entirely uncontradicted except that plaintiff while admitting • that he had thus operated before the accident, says that they were..not boards of the kind that he was sawing at’the time of the accident. The distinction he seeks to draw is that the boards he was sawing when injured were narrow and he could not, therefore, as effectively press or hold them down on the surface of the table as .if they had been wider. It is very clear, however, that with the experience. which he had he was fully aware of any additional danger which may have. existed by reason of doing the work in tliat manner. He was neither a child nor a novice. The rule that a master must instruct his servant concerning the dangers off his work has no’application where, as here, the servant is fully familiar witli the details of the work and' the operation of the machine and the dangers connected therewith. Plaintiff’s familiarity with the work and the particular method of its performance which is Complained of was amply sufficient to give him adequate information concerning any dangers connected therewith and nothing which the superintendent could have told him would.have increased such information. The charge permitted the jury to find the defendant negligent in not having instructed plain: tiff although it appeared.that such instruction if given would have been superfluous.

. Again, the defendant requested the court to charge: “ That even though the jury find that the saw and boards twisted or jumped on the occasion of the accident such twisting or jumping is not sufficient to pharge the defendant with negligence in the absence of proof a,s *300to what caused such twisting or jumping, and that such cause was owing to negligence on the .part of the defendant,” and also : ‘‘ That the unexplained twisting.or jumping of the saw and hoards does not raise any presumption of negligencé on the part of the defendant.” These requests were refused except as covered by the charge already made. The subject-matter "of the requests had not been fully covered by the learned judge in his charge and I am of the .opinion that the defendant was.entitled to have-the jury instructed as requested. It was necessary for the plaintiff, to prove not only the cause of the accident., but also that such causé was due to defendant’s negligence. The jury had been expressly told that if they found that the saw and frame" upon which it-was set were not reasonably safe, they might render a verdict for the .plaintiff if he was without, negligence, but they had not beén told in words or substance that such absence of reasonable safety must also be attributable to defendant’s fault or negligence before the latter could be held-liable. Manifestly" an apparatus may be unsafe without fault óf any ene. It was, therefore, quite .important, to the" defendant to have that charge supplemented by the further statement as requested,, that the so-called twisting or jumping was not sufficient to make the defendant liable in the absence of proof- that', the carise. thereof was due to its negligence. The refusal to charge thé latter of the above-quoted requests also casts on the defendant the burden of explaining the accident and of relieving itself'from'negligence. The effect of these refusals was to make the defendant liable without reference to. the question of its negligence, provided only the jury could find from the evidence the cause of the twisting or jumping, and. that the saw and its appliances were unsafe. :

It was also error to permit the plaintiff to ask an expert witness Called by him whether there was greater ■ danger in running three boards through' a saw than one. This question was duly objected to. The witness answered that “ there is a good deal moré danger.” The witness might properly describe such a process- and state the facts as to what would or might happen therefrom. "But the characterization thereof as being more! dangerous was one of the precise points in issue, and was a question, not for. the witness, but for the jury. • ' ■

It is impossible tq .say that the errors, above specified did not *301affect the verdict, and hence the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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