*56Dissenting opinion by
Emery, J.Mr. Justice Walton and myself are unable to concur in the opinion prepared by Mr. Justice Virgin, as it seems to us to conflict with legal principles well established by repeated decisions of this Court. The importance of these principles to the industries of this State impels us to express our dissent.
We think the plaintiff’s evidence clearly discloses tiro insuperable bars to the prosecution of his suit.
1. His own inattention, or want of ordinary care,— his neglect to take proper and available precautions against the danger,— contributed in causing the injury. Buzzell v. Laconia Co. 48 Maine, 113; Shanny v. Androscoggin Mills, 66 Maine, 420; State v. Maine Central R. R. Co. 76 Maine, 357; Lesan v. Same, 77 Maine, 85; Wormell v. Same, 79 Maine, 397; State v. Same, 81 Maine, 84.
2. The danger of injury was known to him, or would have been known to him, had he made proper use of the senses, intelligence and understanding he possessed. In either case the risk fell upon him. He had the choice whether or not to encounter the danger. Beaulieu v. Portland Co. 48 Maine, 291; Osborne v. Knox & Lincoln R. R. Co. 68 Maine, 49; Coolbroth v. M. C. R. R. Co. 77 Maine, 165; Wormell v. Same, 79 Maine, 397; Judkins v. Same, 80 Maine, 417.
Conceding, as stated in the majority opinion, that the defendant might have constructed his lath machine and its appurtenances so that the sawdust would not clog and pile úp,— and might have so enclosed the saw that an employe could not come in contact with its under edge ; yet under our law, as declared in the cases above cited, the owner or manager of a business plant affording employment to labor, properly if not necessarily, enjoys some liberty of judgment in constructing his mill, machinery and appliances, and in managing his business. He must not construct nor leave any pitfalls or mantraps. He must not make nor tolerate a semblance of security where there is really danger. Still he is not required to anticipate or provide against the heedlessness of others. • No one can successfully do that, for no one can foresee what the heedless may do.
*57As was said in Wormell v. Maine Cent. R. R. Co., supra, the employer is not hound to furnish the safest machinery, instrumentalities or appliances with which to carry on his business, nor to provide the best methods for their operation in order to save himself from responsibility resulting from their use. If they are of an ordinary character, and such as can with reasonable care be used without danger, except such as may be reasonably incident to the business, it is all that the law requires. Every employer has the right to judge for himself in what manner he will carry on his business as between himself and his employes, and each of these having knowledge of the circumstances must judge for himself, whether he will enter the service, or, having entered, will remain. In this case, the lath machine and all its appurtenances appear to have been substantial and solid. Nothing broke or gave way. The saw remained in its proper place. The dust spout may not have been convenient in form, or location, but it was not structurally weak, nor in any way dangerous.
The majority opinion, however, holds that the defendant may be in fault in not giving the plaintiff such information and instruction as was reasonably necessary to enable him to appreciate the perils to which he would be exposed in the course of his employment, and to enable him, with proper care on his part, to safely do his own work. The only omission that can be material in this case, was the omission to give the plaintiff information of the danger attending his .reaching 1ns hand with a stick under the saw table under the whirling saw,— and to instruct him to stop the saw before undertaking to push down the sawdust.
Conceding that the employer should inform a new employe of such dangers of the employment as are not apparent, and should give him sufficient instruction to enable him to avoid the danger,— it is also a reasonable and well-established principle, that the employer may assume that his new employe is not a senseless, mindless machine, hut that he possesses and will use for the benefit of his employe!'as well as of himself, the ordinary senses, intelligence and understanding of one of his age, unless *58indeed some lack of these is apparent, which however is not claimed here. The employer need not inform his new employe of what he must know if he uses his eyes or his reason. The employe has duties as well as the employer. By undertaking any service, as running a lath machine, he engages that he has sufficient intelligence and capacity for that service. He engages to give not only his time, but his attention to the work,— to acquaint himself so far as he can, with the proper and safe modes of doing it. He is also bound to bo watchful of his own health and safety. He cannot place these duties wholly upon his employer. He is bound to use his own senses-, intelligence and understanding in providing for his own safety, as much as in any part of his employer’s service. Wherever placed and at whatever work, he must be ordinarily observant and mindful of possible or probable attending perils. He must not assume the service to be without danger merely because of an omission to tell him of danger. He must of his own volition look for such dangers as are open to observation, and must apprehend such invisible dangers as are likely to attend known conditions and circumstances. When danger is seen, or is suggested by the known conditions and circumstances, he should not wait for directions, but himself should seek the best safe-guards, and use the best precautions. He should affirmatively use his own faculties to discern danger, and protect himself from it. He must not be indolent, nor thoughtless. He must think as well as act. In fine, the law holds, and the employe should remember, that he is a man, not a machine, — -that he is a free man, bound to use his own faculties for his own preservation, and not a slave to rest slothfully under the care of a master.
These principles are so fully and clearly stated in Wormell v. Maine Central R. R. Co., supra, and the cases there cited, that further citation of authority in their support is unnecessary.
Now to apply these various principles to the evidence in this case, let us review the situation, and in doing so, we may need to state some evidence not noticed in the majority opinion. The plaintiff was a young man twenty-three years old, of somewhat varied experience as an employe, and, from general observation, *59somewhat familiar with saw mills and circular saw machinery. He had worked in a shingle mill, bunching shingles and occasionally running a bolt through the saw. He had noticed lath machines, and testified that ho had a general notion of how they worked. There is no suggestion of any infirmity of any sense, nor of any lack of intelligence or understanding. After working some three or four days in tailing after the rotary in the defendant’s mill, he was asked to take charge of the lath machine, a machine not at all complex, and of which he had a general notion, as he told the foreman. After receiving instruction for some thirty minutes in its practical operation, he undertook to run the machine with a helper. After sawing for some time, he found that the sawdust piled up so under the saw-table as to be likely to hinder the work. He undertook to remove this accumulation without asking for directions. He first very pro]>erly stopped the saw, which projected a few inches below the lower surface of the saw-table. Then one of the pair went below to clear away obstructions at the out-flow, while the other remained above, and assisted by pushing down with a stick through the opening in the floor under the saw. This operation was repeated several times, the same precautions being taken. With the saw at rest there is no suggestion of any danger attending it.
After the first few times, however, the plaintiff omitted to stop the saw, and the succeeding clearings of the sawdust were made while the saw was in rapid motion. After some ten days in all of work at this machine, on one occasion (the time of the accident) the sawdust piled up, and the plaintiff', sending his helper below, undertook himself to reach under the whirling saw, which was revolving within two feet of and over the opening in the floor, and undertook to push the sawdust down through the opening with a stick held in his hand. He did not bend, or crouch down to look under the table, but worked with the saw and his hand hid from sight. The upper end of the stick struck the saw, the rapid motion of which caught up the plaintiff’s hand against its teeth, — whence the injury.
It is true he was not told of the danger of such an operation *60with the saw left in motion. It is true he was not instructed how to avoid the danger as by first stopping the saw. It may be conceded that the defendant might have so constructed his dust spout, as to avoid any accumulations of sawdust. It is also true, that this act of the plaintiff with the saw in motion, was attended with great and certain danger. But as between employer and employe it is a well-settled and undisputed principle in our law, under the decisions cited, that all these omissions on the part of the employer, will not give the employe a cause of action, if it appear that the latter actually knew the danger, or that he might have known it, by the ordinary exercise of his senses and faculties. In such case, if he remains in the service he accepts the peril.
It seems to us that the plaintiff’s evidence proves both of these alternative propositions so unmistakably and conclusively, that no verdict in his favor ought to stand. Coupled with his previous general knowledge, his ten days of running amachine, so simple as a lath saw, must have; made him familiar with its construction and operation. He stated in his testimony the diameter of the saw, and he must have known the thickness of the saw table. He .had constructed models of them from memory. He must have known that a saw of that diameter would project through and below a table of that thickness. That he appreciated the danger, at first, seems undeniable, for he then stopped the saw before putting his hand under the table. He was not told to do so, and we can imagine no other reason for his doing so, than an apprehension of danger if it were loft running. But all possible doubts of his knowledge of the danger, should be put at rest by his own declaration in his testimony, "I knew the saw was above my hand.” The danger then was known and visible,— visible to the mind’s eye,— the understanding, if not to the bodily sense.
This danger might have been easily avoided. The plaintiff need only have continued to observe the precautions he observed at first. His omission to do so seems to us unaccountable upon any other ground than heedlessness. The evidence discloses no other reason, and we do not see what other reason can be *61even imagined. There was no change in the conditions. He had no precept or example to do so. No other machine, or employe was hindered, or embarrassed by the stoppage of the lath saw. The saw itself was running idly the while.
Tf it be urged, as an excuse, that he forgot, or did not think of the danger, that he wns thinking about the sawdust, &c., the answer is, that it was his duty to think and remember,— his duty to his employer as well as to himself. Forgetfulness, thoughtlessness, however common are no legal excuses. The law requires prudence and care, even though most men may be imprudent and careless. Men in all walks in life are necessarily left by the law to suffer for their want of thought and care. No one is allowed to recover of another for injuries which he might himself have avoided by ordinary care.
"Whatever the omissions of the defendant, the plaintiff must prove affirmatively that he was ordinarily careful, and was honestly and excusably ignorant of the danger. We think the plaintiff’s evidence is irresistibly against him on both these points. It shows clearly that he knowingly, needlessly and carelessly put his hand in dangerous proximity to a circular saw in rapid motion. It also show's as clearly, that he must have known the danger, and that he chose to risk it, rather than take the trouble to avoid it. We think the court could and should say, as matter of law, that such facts appearing in his own evidence, effectually and doubly bar the plaintiff’s suit.
Walton, J., concurred.