On Rehearing.
(Jan. 4, 1904.)
BREAUX, J.Plaintiff, widow of W. R. Merritt, brought this suit conjointly with her minor children, eight in number, of whom she is the tutrix, to recover the sum of $10,000, with costs, and interest per annum from judgment, as damages for the death of her late husband and father of her minor children from a blow received while at work in defendant’s factory.
The jury awarded damages for plaintiff in the sum of $2,500, with 5 per cent, interest from date of the judgment. From the verdict of the jury and judgment of the court defendant prosecutes this appeal.
Witnesses state that plaintiff’s husband was an industrious and useful man. His age was 43 years. At the time of his death he was earning wages of only $1 a day.
He was carrying lumber slips and putting them in front of and near to the rip-saw to be sawed into proper shape and dimensions; in other words, he had just brought pieces of timber to the saw, and was placing them behind the saw, and while near the machine putting down these lumber slips he was struck on the right temple by a piece of flying timber and thrown down. In a few days thereafter he died from the effects of the blow.
The rip-saw was sawing timber pieces to be cut down into two-inch balustrades; that is, after being sawed, they were dressed down to the proper size for balustrades. The edge of the saw was about two inches above the flat surface of the table. A small piece for the balustrades work was sawed out of a large piece, and the rip-saw run through twice in order to detach the small piece from the large piece. After the small piece was detached, the large piece (measuring about 5 by 5, and about 24 inches in length) was brought to the front of the machine in order to be run through to make another piece out of it. At the moment that the small piece was detached, instead of falling forward, it was pulled back by the large piece, and was caught by the saw and thrown forward, and on its way struck plaintiff’s husband, and inflicted the fatal blow.
Two men attend to and work at the ripsaw. One is known as the “feeder” and the other as the “off-bearer.” This saw re-volves with a wonderful speed. The larger piece, to which we have before referred, is laid on the iron plate of the machine, in which the rip-saw, with its rim just above the table in question, is fixed. Its edge revolves to the front and in the direction of the “feeder.” The large piece is pushed to the saw by the “feeder.” It passes through the saw, and then the detached piece is taken and laid aside by the “off-bearer,” and the larger piece is taken back to be sawed again, and to have taken therefrom another piece.
It happened that the “off-bearer” did not catch the small piece. It was pulled back to the saw as before stated, and hurled away, causing the death before mentioned. The rip-saw is always dangerous, and requires care and attention in running it. This machine has a fluctuating or rising table. The saw is stationary about the center in a slit of the table (a flat iron table in size 30 by 42 inches). By lowering the table, a larger edge of the saw is exposed. If, in this instance, the table had been lowered, and the saw thereby raised, as it were, then it would have given the saw a greater and broader cutting power, and then these pieces would have been entirely separated. ’
*167This saw, the weight of the testimony informs ns, should be equipped with a “guard” or “spreader”; otherwise there is great danger every time the machine rips a piece of timber, for it may then fly back just as did the fatal piece in this case. This “guard” or “spreader” stands a short distance beyond the saw, and protects against the edge of the saw catching the piece of timber, if, as in this case, the “off-bearer” fails to take hold of the detached piece quickly after it had passed through the saw.
With reference to the necessity of a “guard” or “spreader” the testimony is conflicting. The preponderance, however, we think, is with the plaintiff. We are informed, among others, by the testimony of defendant’s foreman of its sash and blind department, who says that he is very familiar with the running of rip-saws, that the “guard” in question is important in order, to quote from his testimony, “to prevent it being dangerous, or to prevent it from crowding the saw, and avoid accidents.” He had put it on himself. It was not on at the time of the accident. It had been taken off by the “feeder” and laid aside. He further swears that he did not know that this appliance had been taken off, it having been but recently (the day before) put in by him.
This machine was on the upper, floor, of which this foreman had charge. This foreman also testified that the “feeder” was an indolent man and careless; that he had hesitated in employing him; that he was not the man he wanted; that friends of the “feeder” spoke to him in behalf of the “feeder,” and that, as he needed a “feeder,” he hired him, and put him in that place.' -
The “guard” was cast aside by the “feeder” in the morning. In the evening plaintiff’s husband was mortally wounded.
We think we are safe in concluding, after having again considered the testimony, that a “spreader” or “guard” is a necessary part of a rip-saw, and that it was negligence to run the machine in question without such appliance.
The foreman sought to shield himself against all responsibility in the matter by the statement that he was not aware that the “guard” in question had been taken off, and by the further statement that the “feeder” man was not as careful in that work as he should have been.
The machine was on the floor of which this foreman had the .special supervision. The duty of inspection devolved upon him. He also, as he had the power to employ and discharge men under him (as shown by the evidence), should not have permitted a man to remain in defendant’s employ whose indolence and carelessness increased the danger of the employment. The function of the “spreader” or “guard” was important. Although defendant says that the court erred in holding that had the “spreader” or “guard” been on the machine “at the time of the accident it would not have occurred,” defendant’s foreman testified with reference to this “guard” or “spreader” that the offending piece could not possibly have caught as it did, if the “guard” had been in its place.
If he did not see that it was no longer in place, it was none the less his duty to have seen it in time to prevent serious accident. The machine was operated a sufficient length of time to enable the foreman to become aware that the “guard” had been taken off. The rule relating to inspection requires at least ordinary attention of the foreman of the machinery, particularly when it is in the hands of one as deficient as he seemed to think the “feeder” in this ease was.
We think that the decisions sustain the view that the master or his representative should be held to reasonable inspection. A number of decisions are referred to upon the subject in Black’s Law and Practice in Accident Cases, § 68.
Upon the question of the “guard” or “spreader” the following inquiry of the defense implies that it is not as useless an appliance as imagined by a few of the witnesses:
“Can a foreman, situated as he was, intrusted of necessity with the supervision of a number of workmen, be expected to stand guard over each workman to see that he operates the machine just like it was up? If this be required, it would require as many foremen as there are workmen.”
We can only say that, if machinery is in the hands of one in regard to whom the foreman should have felt more than ordinary concern, then ordinary prudence dictates the necessity of frequent inspection.
*169We will go one step further, and state that, in our view, as relates to the machine “feeder,” who took upon himself to strip the machine of this safety appliance, the master is not protected by the fellow-servant doctrine, for the reason that the master, or his representative, the foreman, might in all probability have' prevented the accident had they been as vigilant in the performance of a duty as the necessity of the occasion demanded. Moreover, it was not made to appear with any degree of certainty that the parties, the deceased and the “feeder,” were in the same common employment.
One was employed at the machine, as before stated, and the other in carrying pieces of lumber from one part of the mill to the other. At the time of the fatal accident he was carrying, it is true, the pieces to the rip-saw, but it remains that deceased was an all-around laborer about the factory. Under the light of our decisions, he was not strictly in the same department in which the rip-saws were operated, although his work necessarily brought him near these machines.
We have endeavored in our decisions to maintain a just equilibrium between the master and his employés, in order that the master would not consider himself too much relieved of responsibility under an extreme fellow-servant doctrine or rule. On the other hand, we have sought to urge employés to be at least ordinarily careful.
Again, there was another way of doing the work, which would have been safer than even with the “guard.” That was to lower the iron table and to cut through the larger piece of timber, and not to run it through twice, as was done, in order to detach the small piece "from the larger piece on the second run through the saw.
From this it appears that there was a’way to saw and resaw the pieces so as to separate, them completely after the first passage through the saw.
Of this one of the witnesses testified: “It was dangerous to rip the pieces like it was being done; safe way was to rip clear through.” We conclude by reiterating: The master or his representative should inspect the machinery, and see to a reasonable extent that it is operated so as to be sáfe to those who must work near it while it is being run.
We think the verdict and judgment have done justice between the parties.
For these reasons the verdict and judgment appealed from are affirmed.
PROVOSTY, X, concurs in the decree. LAND, X, recuses himself, having been presiding judge in the district court.