(dissenting).
The alleged acts of negligence of the appellant on which the appellee claims to he entitled to recover are: First, leaving unguarded the cogs in which the appellee was caught and injured; and, second, employing an incompetent servant.
It appears from the evidence without conflict, that all of the cogs imder the bed of rollers were guarded except the particular one by which the appellee was caught and injured, but the evidence was in sharp, conflict as to whether or not these particular cogs were guarded; consequently that issue was necessarily submitted to”the jury. It also appears from the evidence, without conflict, that the rollers were for the purpose of conveying the lumber, one board at a time, from the circular saw to a point near the “edger,” and when it reached that point it was the duty of the appellee to assist in transferring the board from the rollers to the ‘ £ edger. ’ ’ This duty in no way required the stopping of the rollers, and in so far as the appellee was concerned their motion might have been continuous.
Between the circular saw and the edger there was a button saw for the purpose of cutting the ends of the boards in proper shape for the “edger.” This saw was operated by a man by the name of Jones, who was deaf. His duties required him to watch the boards as they came from the circular saw, and when any of them that needed trimming before being transferred to the£ £ edger’ ’ reached the button saw to stop the rollers, thereby stopping the board, elevate the button saw, and cause it to cut off the end of the board. "When this was done he would start the rollers again and the board would continue its journey to the “edger.” In order properly to discharge his duties it was necessary for him to face the circular saw and to keep his eyes on the approaching board, and in order so to do his back would necessarily be towards the “ edger.” The lever controlled by him *796was for the purpose of enabling him to start and stop the rollers so that he might cut off the ends of the boards before they reached the “edger,” and was not intended as a device for the safety of the appellee; that being intended to be provided for by guarding the cogs, and but for the button saw it seems that this lever would have served no necessary purpose. Jones was thoroughly competent to run this button saw, and neither his nor the appellee’s duties required any communication between them, and their co-opieration in getting the boards to the “edger” was only such as has been hereinbefore set forth.
The appellee’s fourth instruction permitted the jury to find for him, although the cogs in which he was caught were guarded, if they believed from the evidence that Jones was “deaf so that he could not hear the plaintiff when he was caught in said cog-wheels and called out to said Jones to stop or reverse said rollers,” and “that the said Jones was not, on account of said deafness, a competent employee to do the particular work at which he was put by the defendant, that is, operate said live roller lever.” This instruction should not have been given, for, as hereinbefore set forth, Jones was thoroughly competent to run the button saw — the only duty he was employed to discharge — and) to operate the lever for that purpose, and the obligation of the master to his servants to employ only competent servants is limited to the employment of such as possess the qualifications necessary to enable them to perform their duties without exposing themselves and their fellow servants to greater dangers than the work necessarily entails. If the cogs were properly guarded, as this instruction assumes, then the appellant complied with its duty to the appellee in furnishing him a safe place to work, and it was not called on to provide for the stopping of the machinery in event he should be caught in the cogs without negligence on its part.
*797For the error in granting this instruction by Brother Sykes and I are of the opinion that the judgment of the court below should be reversed.