(dissenting):
Action'to recover damages for personal injuries.- .Defendant operates" a factory for doing cabinet work. Plaintiff is a carpenter and at" the time he was injured was about nineteen years of age, had worked at his .trade between four and five years, and -was employed by the defendant. On ■ the day of the accident lie- was directed to make a crate in which to pack a desk, according to a certain diagram given him, and for that purpose was told to- go to a machine which consisted of an ordinary buzz. saw. with ai table and prepare the necessary strips of lumber. These strips were made by cutting, with the buzz saw, an ordinary soft wood board from six: to eight feet long and one inch thick into- slats two inches wide or a little less.. While, doing this work his hand came in contact with the buzz saw, which resulted in an injury to the thumb and the loss of the index finger. He had. a recovery of $3,000,. *569damages for the injuries sustained, xipon the ground that the-defendant was negligent in not instructing him that if Ms hand came in contact with the buzz saw he would be injured, and in not furnishing him proper appliances to handle the boards while they were-being sawed into slats. Defendant appeals.
The plaintiff testified that he did not know if he got Ms fingers. against the saw that it would cut them off, and if he had 'known such would be the result, lie would not have -operated the machine. To use Ms -own language*: “ If I had known that if I got my finger-up against the saw it would -cut it off, I should not lia-v-e gone to-the machine. It was not plain to me that if the saw struck my finger it would cut it, I didn’t see that. I knew the saw would cut the wood.” A -carpenter, nineteen years of age, of ordinary intelligence (and the plaintiff so far as the evidence discloses had at least that degree) does not need to he told that fire will burn, water will run down hill, -or if -he pu-ts Ms hand upon a buzz saw twelve to-eighteen inches in diameter, when revolving between 3,000 and 4,000 times a minute, he will be injured.
The plaintiff’s testimony is incredible, and the court was not bound to submit it to the jury. He was charged with knowledge- and presumed to know that if his hand came in contact with the-saw he would be injured. (Williams v. D., L. & W. R. R. Co., 116 N. Y. 628; Crown v. Orr, 140 id. 450.) Upon his own testimony the plaintiff was not entitled to recover and the evidence does-not sustain the verdict.
I think the court erred in permitting the witness Martin to answer,, against defendant’s objection and exception, the following question : “How, what is that well-recognized custom when cutting strips of wood eight feet long into two-inch strips ? * * * A. The common custom is to take stock of any width that is within the capacity of the table, move the rip-saw guide to the distance from the saw that is required for the strips; run the piece of stock against the saw and against the guide. If that stock is -eight feet long, it requires an expert man to saw that strip eight feet long without assistance at the back of the table, for tlie reason that the piece over-balances on the table and it is unsafe, but1 an expert man can use a push-stick, laying it firmly on the piece he is sawing and pushing it clear of the saw.”
*570It also erred in refusing to strike out the answer. The witness ought, not to have been permitted to state that it would be-unsafe for any one except “ an expert man ” to saw a strip eight feet long without assistance at the back of the table. It was for the jury to say, under all the facts, whether the method adopted was safe or unsafe, as well as the skill required by a person sawing the strips. (Carron v. Standard Refrigerator Co., 122 App. Div. 296; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31.)
For the same reason it was error to permit the witness to testify that' in sawing 'lengths of -eight feet it was customary to have a person on the other side of the machine to take the strips as they were sawed. Also, after the witness had stated that “ push-sticks ’ were sometimes used, in then saying that if such sticks were used, the operator “ is in no danger with the stick. His hands are all clear of the saw.” •
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.
Houghton, J., concurred.
Judgment and order affirmed, with costs..