RAYMOND T. HODDER vs. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

BRALEY, J. The plaintiff, while in the employ of the defendant, [Note p357-1] was injured by contact with an unguarded rotary bench or buzz saw which he was operating. We are asked to hold, on a record which recites the substance of all the evidence bearing on the question, that the refusal of the trial judge [Note p357-2] to rule, "there is no evidence that the plaintiff was in the exercise of due care in operating the saw in the manner he did at the time of the accident," was erroneous.

The case is close, but we are of opinion that the ruling could not have been given. It was for the jury to say whether they believed the plaintiff's evidence. He had used the saw table occasionally for five or six weeks, and the general dangers of operating a

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circular saw were obvious. But on the day of the accident he had been directed by the foreman to run through filler blocks which were to be sawed with "a scallop on one side and bevel edge on the other." The saw was dull and the blocks were "unusually wet" requiring much pressure by the sawyer in "putting them through," conditions the foreman could have been found to have known. What next befell him the jury could view in the light of the testimony of the plaintiff's expert, that "the shorter the piece the harder to handle. It makes it jump and kick around on the saw considerably unless you handle it just right, and that danger is increased if the wood is wet and the saw is dull.... The reason why the dull saw causes the trouble is if the saw gets dull it won't cut a slot big enough to let the saw pass through." And he further said, that "the danger in cutting short stuff when it is wet and with a dull saw is a matter known to expert sawyers alone, men who are skilled." It "is not a matter that everybody knows without experience and instruction." "When short stuff ... is cut there is danger of jumping and binding." "It makes a difference which way the wood is being cut on the grain — also makes a difference whether it is being cut on the bevel or at right angles to the table." The plaintiff, although he knew the saw was dull, testified that, lacking such instructions or experience, he began to saw a piece of filler block on the "bevel or slant" and when it was half way through the back it "kicked up" or "jumped," and that, as he endeavored to hold the block down and in place, his hand slipped against the saw.

It is sufficiently plain that whether under all the circumstances the plaintiff with the knowledge he possessed used ordinary precaution was a question of fact. The jury could find that he stood on the footing of an inexperienced workman, and that in obeying the foreman's order he had no reason to apprehend or anticipate the peculiar danger to which he might be exposed. Lavartue v. Ely Lumber Co. 213 Mass. 65, 67, and cases cited. Kerrigan v. Commercial Brewing Co. 216 Mass. 306.

Exceptions overruled.

The case was submitted on briefs.

J. C. Hammond & T. J. Hammond, for the defendant.

F. J. Lawler & C. S. Hamilton, for the plaintiff.