#### CHARLES Q. DEATON v. GLOUCESTER LUMBER COMPANY.

(Filed 13 May, 1914.)

1. Master and Servant — Negligence—Res Ipsa Loquitur — Trials— Evidence — Questions for Jury — Nonsuit.

The plaintiff was engaged by the defendant lumber company at a cut-off saw _ arranged upon two upright pieces of timber which moved to and fro as the saw was being operated, so that when not in use the saw rested in a hood about 12 or 14 inches from the perpendicular, and was drawn forward against the lumber to be cut. It was the plaintiff’s duty to guide this lumber to be cut over rollers from the main saw, and while doing this, at the time in question, it became necessary to straighten a piece of timber, and the saw, which had been placed bach in the hood, and which should have remained there, unexpectedly sprang forward and inflicted the injury complained of: Held, the doctrine of res ipsa loquitur applies, under the circumstances, raising an inference of negligence which was for the defendant to explain or disprove. •

2. Master and Servant — Assumption of Risks.

The servant engaged in a dangerous employment may not be held to have assumed the risk arising from the distinct and negligent act of the master causing personal injury to him while in the performance of his duties.

Appeal by defendant from Justice, J., at November Term, 1913, of HeNdekson.

This is a'civil action. The following issues were submitted to the jury:

1. Was the machinery by which the plaintiff alleges he was injured constructed in a reasonably safe manner, and was the same in a reasonably safe condition at the time of the alleged injury? Answer: No.

*5612. Did tbe defendant provide a reasonably safe place for tbe plaintiff in which-to work? Answer:'No.

3. Did tbe plaintiff, witb full knowledge of tbe condition of defendant’s machinery and condition of tbe place provided in wbicb for bim to work, assume tbe risk of bis employment? Answer: No.

4. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

5. Did tbe plaintiff, by bis own carelessness and negligence,' contribute to bis own injury? Answer: No.

6. Wbat damage, if any, is tbe plaintiff entitled to recover? Ans.wer: $3,000.'

From tbe judgment rendered, tbe defendant appealed.

Smith & Shipman for plaintiff.

Welch Galloway and McD. Ray for defendant.

BeowN, J.

Tbe defendant insists that, taken in its most favorable light, tbe evidence of tbe plaintiff did not make out a case of negligence against tbe defendant, and that tbe motion to nonsuit should have been allowed. This assignment' of error substantially covers tbe case, and we do not think that any other needs discussion.

Tbe evidence offered for tbe plaintiff tended to prove that be was employed by the defendant to operate a cut-off saw, wbicb was installed at right angles to a table on wbicb were placed live rollers, over wbicb slabs, sills, etc., were conveyed from tbe main saw, wbicb was 30 feet from tbe cut-off saw; that it was tbe duty of tbe plaintiff to use tbe cut-off saw in cutting tbe slabs -as they came over tbe rollers from tbe main saw, and to guide and direct tbe passage of tbe sills and other lumber over tbe rollers, past tbe cut-off saw, where it emptied into a dock several feet beyond; that this table was, at tbe point of tbe cutoff saw, just in front of tbe shield in wbicb tbe cut-off saw rested when not in use, and timbers could not be conducted past. tbe cut-off saw when it was out of tbe shield.

Tbe saw was set in a frame of two upright pieces of timber, 14 feet in height, and wbicb moved to and fro ás tbe saw was *562operated; the saw was operated by a lever which the operator pulls to bring it forward out of the shield for use, and which he pushes to put it back into the shield; the saw frame, when the saw is at rest in the shield, is about 12 or 14 inches beyond the perpendicular, and is held by its own weight; fastened to the top or near the top of the saw frame is a rope, which runs over a pulley and reaches downward some 8 or 10 feet, with a weight attached to the end of it'; there is another rope fastened to the bottom of the mill floor, which extends down some 8 or 10 feet and is also fastened to the weight.

This arrangement is such that the weight rests on the rope fastened to the floor at all times, except when the saw is pulled forward past the perpendicular. When the saw is being pulled forward, it gets the benefit of the weight after it reaches the perpendicular, and when being pushed back into the shield has the benefit of it until it reaches the perpendicular. When the saw is at perpendicular, and before it is affected by the weight, it is some 12 or 14 inches out of the shield.

The plaintiff testified further as to the manner in which he was injured, namely, that on the morning of the injury, and just before it occurred, he had been operating this slab or cutoff saw in cutting slab’s; that just before he was hurt he had pushed the saw back into the shield, until it was at complete rest, and at the time of his injury was engaged in guiding an 8x10 sill over the rollers; that the sill was coming at an angle on the rollers, and that he was straightening it — “pushing with his left hand and pulling with his right”; that while he was thus engaged in guiding the sill, the saw sprang forward out of the shield and injured his right hand in the manner testified to by him; that there was nothing to keep the saw from coming forward; that he had observed the manner in which the weight and ropes were arranged about two days before his injury, when he and Colburn, the foreman, were down on the dock; that he called Colburn’s attention to it, and that Colburn stated to him that that was the only way to fix it, and that there was no danger ; that the saw came out of the shield as far as it could without being affected by the weight when it cut his hand; that he *563did not see any use of tbe rope attached to the floor; that he had never been instructed to stop the rollers when guiding sills or lumber when the saw was back in the shield.

The defendant’s witness Colburn, in testifying as to the construction of the saw, stated: “The saw frame, which is about 14 feet high, made of two upright timbers, leans back about 14 inches beyond perpendicular when it is as far back as it will go, and, when it goes forward it does not affect the weight until it about reaches perpendicular, and when the saw is about 12 or 14 inches out of the shield.”

"We think that this version of the testimony would justify the jury in drawing the inference of negligence in the manner in which the saw had been placed in its bearings.

The manner in which the saw unexpectedly sprang out of the shield and injured the plaintiff, in the way testified to by him, is very conclusive evidence that there was something unusually wrong with it, .and presents a case where the doctrine of res ipsa loquitur will carry the case to the jury.

In this case the facts and circumstances attending the injury speak for themselves, and ai the absence of explanation or disproof give rise to the inference of negligence. .It is evident that the accident would not hi^e occurred if the saw had not unexpectedly sprang out of itsu'protecting shield. "Why it did so is not very clear, but the ciwumstance’ falls upon the defendant for explanation. ‘

In respect to those assigi^n-.ents of error relating to the issues of assumption of risk andj contributory negligence, they are immaterial and need not be ‘considered. The plaintiff assumed no risk growing out of the negligence of his employer, and only those risks which were naturally incident to the proper conduct of the business. As to contributory negligence, we find no evidence upon which any such finding could be based.

Upon a review of the whole -record, we find

No error.