— I do not think that the plaintiff was properly to be termed a volunteer; he certainly was not a trespasser. Having property in the charge of the defendants, at *380their solicitation to he worked upon by them and for their profit, he had the privilege of going upon their premises to see to it and to give directions concerning it. He was not chargeable with negligence in going upon their ground. ISTor was it a voluntary or needless putting himself in the way of danger to go into the mill, there to give instructions to the practical agent of the defendants, the sawyer, and when there, to await quiet for that purpose, unless he had reason to expect the accident which occurred, or some result like unto it, or unless the circumstances, as shown by the testimony, were such as that a man of ordinary prudence and care for personal safety would, in the exercise of due caution, have refrained from so going and so awaiting.
The circumstances do not show a case of negligence so clear as that a court could, as matter-of law, pronounce the plaintiff guilty of contributory negligence.
The least which the plaintiff was entitled to ask was a submission of that question to the jury, upon all the facts of the ease.
The defendants, owning the mill and themselves carrying on a business, dependent for its profit to them upon the resort to it of their neighbors with their logs, owed a duty to their customers that the mill and its appliances should be reasonably safe for those who had right or license to come into it for a mutual purpose (see Swords agt. Edgar, in MSS., decided Nov. 17, 1874). It was their duty to arrange and carry it on, so to provide it with customary or available machinery and appliances as that it should be reasonably free from a likelihood to accident and injurious effects.
The testimony given did, then, present questions of fact for a jury ; whether the plaintiff was hurt by a plank thrown against him, whether it was so thrown by the act of Gilbert V. Lansing, combining with the action of the saw upon the plank, or whether it was thrown by reason of the rollers being too far apart to carry so short a plank; whether such result had happened before to the knowledge of the *381defendants; whether they were thereby chargeable with notice that they were likely to happen again; whether they arose from, want of skill or from carelessness in the use of the gearing and appliances of the mill in actual use, or were the necessary and customary effect of the use thereof; whether they were thus unavoidable, or might have been avoided by greater and required care, or by the use of other and better appliances in the mill, which could at reasonable cost and convenience be obtained, and whether, on the consideration and determination of these inquiries, the defendants were, in fact, the negligent cause of the injury to the plaintiff?
These questions of fact should have been submitted to the jury with proper instructions as to the law governing their determination.
I do not assert that there was negligence in the defendants, but the lack of it was not so absolutely clear as that the court could pass upon it as a matter of law. There was a question for a jury. Hence, the judgment should be reversed, a new trial granted, with costs to abide event.
All concur, except Church, Ch. J., absent.
Note.—This case was retried at the Saratoga circuit, January 27, 1875, before Hon. Joseph Potter and a jury, and resulted in a verdict of $500 in favor of the plaintiff, and a second appeal has been taken.