This is a personal injury suit in which the plaintiff recovered a verdict and judgment for $5,000 .for a sad accident by which he lost four fingers from the left hand. Defendant moved for a directed verdict, for judgment notwithstanding the verdict, or, in the alternative, for a new trial, and appeals from an order denying the same.
Since January, 1910, at Mandan, plaintiff was in the employ of defendant as a roundhouse workman for some two years. He was helping at boiler making; then for three years he was employed as an engine box packer — a night workman — in the roundhouse, and that was his business at the time of the injury. His business was to pack and oil engine boxes and to change brasses. The packing is replacing ■“dope” or old grease in the cylinders, drive boxes or journals, so there may be no friction. The packing keeps them lubricated and oiled.
*554As it appears from plaintiff’s testimony, lie thought that in his business it would be well to have a tool box to carry his tools and to sit on when working under an engine, and he concluded to make one himself. Accordingly, toward the approach of a May morning, plaintiff went from the roundhouse to the farthest corner of the car shop and there turned on the lights and started up the machine. He says r “I looked for a board and found it. When I put on the switch the machine started to run right away. It run like lightning; the saw was in gear and I took the board and put it in there — when I had it about half way through all at once it started and jerked and wabbled, and the first thing I noticed the board was gone through my hands and I looked at my hand and the four fingers were gone.” He says the board he started to rip was 12 x 30 inches, and at the time of the accident it was ripped about half through.
Joseph Zuger, the roundhouse foreman, testified that he heard of the accident and went to the car shop early in the morning. He examined the board that.plaintiff had been sawing; it was a piece of car roofing 5 or 6 inches wide and 7 or 8 feet long; it was laying in the saw and ripped about halfway through and spots of blood all over it. If that is true, the board was more suitable for kindling wood than for the making of a tool box.
The action is brought under the Federal Employers’ Liability Act, which is, in effect, the same as chap. 207, Laws 1915. Under the act a common carrier by railroad, while engaged in interstate commerce, is liable in damages to any person suffering injury while he is employed by such carrier in such commerce. It is liable for such injury or death, resulting in whole or in paid from the negligence of any of the officers, agent, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, or other equipment. And the negligence of the injured party is not a bar to any recovery, though it may reduce the amount.
However, in this case there are several objections to the right of plaintiff to recover anything:
(1) The making of a tool box was no part of interstate commerce, and it was entirely outside the line of plaintiff’s employment. He was employed as an engine box packer, and not as a carpenter. His employment and his duties were in the roundhouse. He had no right *555or authority to go into the ear shop, turn on the lights, and attempt to use the saw. In doing that he was a mere trespasser. Near the saw there was posted a conspicuous sign: “This saw is to be used by carmen only.” And in addition the plaintiff was expressly warned against attempting to use the saw. It was outside of his employment. His place was in the roundhouse and he had no right to enter the car-shop.
(2) However, if the plaintiff had any leave or license to use the circular saw, there is no showing that it was in anyway defective. There is no proof of a defect in any of the machinery. ■ For some twenty years the sawing apparatus has been in daily use by the numerous carpenters of the car shop without injury to any of them, .and so the plaintiff might have used it without any risk or injury if he had not neglected to use the safety guard. When the guard is used it covers the saw and protects the operator from all danger. Without the use of the guard no one should ever attempt to use the buzz saw.
It is entirely clear that at the time of the injury the plaintiff was not employed to use the circular saw, and in using the saw he was a mere trespasser. His injury did not result in whole or in part from the negligence of defendant or any of its officers, agents, or employees, or by reason of any neglect or insufficiency in its cars, engines, appliances, machinery, or equipment. Hence the plaintiff has no cause of action. Judgment reversed and action dismissed.
Christianson, Ch. J., and Bruce, J., concur. Birdzeel, J. I concur in the result. Grace, J. .1 dissent.