#### 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,

June 12, 1914.

Master and servant—negligence—failure to replace guard on circular saw — evidence — duty of master under section 81 of the Labor Law to “promptly ” replace guard.

In an action for the death of a workman, 'it appeared that the guard to a circular saw furnished by the defendant was removed by another workman in order to do work which required its removal, and that within half an hour thereof 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. The court properly instructed the jury that it was the non-delegable duty of the defendant to replace the guard, but that if it had been removed without his direction or knowledge, he was entitled to a reasonable time to repair it, to be determined by all the facts and circumstances.

Held, on all the evidence, that the interval during which the machine was unguarded, even when marked by the surrounding circumstances, was not sufficient to charge the defendant with negligence in this respect.

The provision of section 81 of the Labor Law, imposing upon a master the duty of “promptly” replacing guards on machinery is expressly limited to removals for repair, and should not be extended to removals when made necessarily for the doing of certain work.

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 20th day of January, 1914, upon the verdict of a jury for $9,996, and also from an order entered in said clerk’s office on the 23d day of January, 1914, denying defendant’s motion for a.new trial made upon the minutes.

*E. Clyde Sherwood [Amos H. Stephens*with him on the brief], for the appellant.

*Thomas J. O’Neill,*for the respondent.

*210JENKS, P. J.:

This opinion should be read serially with our opinion handed down when we granted the new trial herein (154 App. Div. 707). Upon that trial the defendant again lost the verdict and again appeals. The learned trial court submitted the case to the jury upon two propositions, of which I shall discuss only that which related to the guarding of the saw. The defendant contended that he had provided a guard, but that it was necessary to remove it temporarily when certain work was doing; that his employee Anderson had removed the guard for that purpose a brief time before defendant’s employee Padone came to the doing of the work during which the casualty occurred. Padone’s work, unlike that of Anderson, did not require the removal of the guard. Upon this phase of the case the learned court instructed the jury that it was the non-delegable duty of the defendant to replace the guard, but that if it had been removed without his direction or knowledge he was entitled to a reasonable time, determined by all of the facts and circumstances, in which he or his representative in the exercise of reasonable care, could have discovered the absence of the guard and could have replaced it. This instruction was in conformity to our said former opinion. As the verdict is general we cannot assume that the jury did not cast liability upon the defendant upon this proposition. Therefore, the question is presented whether the proof upon this proposition was sufficient to support the verdict. There is no proof that the defendant or his representative had actual knowledge that Anderson had removed the guard, or had finished his work without replacing it, or that Padone went about his work without replacing the guard. The evidence indicates that the period of time during which the guard was off the saw improperly was 15 minutes. But it is insisted that there were other circumstances which were germane to this question of imputed knowledge. And the learned court in its charge directed the attention of the jury to them. It said that the defendant was “there,” near the stairway and in propinquity to the machine; that he knew that on former occasions Padone had left the guard off the machine; that the defendant had thereupon directed Padone -to replace the guard, *211and that, on one or more prior occasions, a sound had been heard from a piece of wood dropping on the exposed saw blade, conveying the intelligence that the saw was uncovered. The learned court summed up the proposition as follows: “ With his [referring to the defendant] propinquity, as I said before, with his nearness to this machine, with his knowledge of what Padone had done on previous occasions in leaving the guard off and still operating the machine, with his knowledge that he had told Padone to put the guard back, as Anderson said, on at least two occasions, you are to say whether or not this guard was off such a period of time, and under all the circumstances, as should have charged this defendant Kaplan with personal notice that the machine was in danger at that time of inflicting injury upon some one lawfully in that shop and in his employ unless the guard was replaced. ” The room of the building was 56 feet 6 inches long. The saw table was at one end thereof. There was a partition therein of 14 feet, so that but 42 clear feet constituted the one room. The plaintiff’s witness Pitalnikow testifies that the defendant was not there every day, but came in very often; and that at the time of this casualty the defendant “ came along.” There is no question that the defendant was in the room of 56 feet at the time. But, on the one hand, there is no proof that he was in such a position or place therein that if he had looked he must have observed that Padone was actually using the saw without the guard, and there is no proof that from the nature of things he must have known of such use by Padone. The foreman of this floor was upon another floor of the shop at the time. The defendant testifies that he was at the foot of the stairs, facing them and fronted by the partition; that he could not see the machine; that his attention was first attracted to the casualty by the different sound—the piece of wood flying — and that he saw the piece of wood come hurtling through the .air and strike plaintiff’s intestate, to whom he ran and whom he caught before the intestate fell. There is no proof of any-condition that attended the use of the saw without a guard which would have apprised any one thereof prior to the casting off of the flying missile. I think that it was not the duty of the defendant to keep constant watch over the saw, even when he was in this room, to see that the guard *212was upon it, even if he knew that Padone on some past occasions had used the saw without the guard. On the former appeal we held that the court erred in refusing the instruction that the absence of the guard for half an hour would not necessarily place the defendant on notice. I now think that the interval during which the machine was unguarded, even when marked by the surrounding circumstances, was not sufficient to charge the defendant with negligence in this respect. See upon the general proposition *Hughes*v. *Russell*(104 App. Div. 144); *Huscher*v. *N. Y. & Q. E. L. & P. Co.*(158 id. 422, 428), and *Idel*v. *Mitchell*(158 N. Y. 134).

In the main charge the learned' court said that a reasonable interpretation of the statute was that the guard had to be removed for the purpose of allowing the machine to be used, hut that it had to be “promptly replaced;” that this was the non-delegable duty of the defendant, and that it was a question for the jury to say whether the failure to “promptly” replace this guard was to he attributed to the personal negligence of the defendant. If “promptly” is convertible with “at once,” “immediately,” then, of course, it is not equivalent to the expression “a reasonable time.” *(Lewis*v. *Hojer,*16 N. Y. Supp. 534, and cases cited; *City of Denver*v. *Moewes,*15 Colo. App. 28.) Probably the learned court used the adverb “promptly,” mindful of the section 81 of the Labor Law, which requires that a guard shall be “promptly replaced.” (See 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, and Laws of 1913, chap. 286.) But there is a distinction between the removal of the guard for the sake of repair and for the doing of certain work which could not be done otherwise. The general purpose of the statute is furtherance of the common-law obligation of safe place. *(Glens Falls P. C. Co.*v. Travelers’ *Ins. Co.,*162 N. Y. 403; *Freeman*v. *Glens Falls Paper Mill Co.,*70 Hun, 530; affd., 142 N. Y. 639; *Travis*v. *Haan,*119 App. Div. 138.) The measure of the common-law obligation is due care. This involves the element of reasonable time. A provision of the statute prescribes the requirement of prompt replacement. But such requirement is expressly limited to *213removals for repair. I think that the requirement should not he extended to removals when made necessarily for the doing of certain work, as in this case. There is to my mind a manifest difference between removals for repair and the removals for work, which may justify this requirement of the statute. For it is but natural that the master should have knowledge of the fact of a repair, and a removal of the guard therefor, but not that he should have knowledge of every removal for the doing of a certain kind of work. I think that the rule was stated correctly in our former opinion, that this defendant, when ignorant of the removal, was entitled to the benefit of a “reasonable time” as involved in the proposition of due care, and was not required to see that the guard was replaced forthwith, or “promptly” or immediately. (See *5*Labatt Mast. & Serv. [2d ed.] § 1644.)

This discussion is not essential to the disposition of this appeal, for, as I have said, the learned court subsequently charged the jury correctly upon this feature of the case.

I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event.

Burr, Carr, Stapleton and Putnam, JJ., concurred.

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