Patrick Ryan, Respondent, v. Hawk & Wetherbee, Appellant

Patrick Ryan, Respondent, v. Hawk & Wetherbee, Appellant. Second Department, July 29, 1910. Master and servant — negligence — injury by band saw — proof not justifying recovery. Action against a master to recover for personal injuries caused by a band saw which left one of the wheels upon which it ran. Evidence examined, and Juki, insufficient to establish, negligence on the part of the defendant. Appeal by the defendant, Hawk & Wetherbee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of November, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of December, 1909,, denying the defendant’s motion for a new trial made upon the minutes. James J. Mahoney, for the appellant. Charles E. Kelley [ Walter C. Shoup with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff lost two of his fingers while cutting ice- with'aband saw, and lie brings this action to recover damages, alleging that tin machine ivas unsafe, and 'the testimony adduced in his behalf indi, cated that the accident occurred by reason of, the saw leaving the upper wheel of the machine. The alleged defect in the machine is not made to appear by the evidence, except that the plaintiff testified that on the occasion of the defendant’s assistant engineer placing a new upper wheel on the machine, supplied with a rubber band, he filed the rubber. It does not appear to what ..extent this filing was done, or the purpose of it, or that it had anything to du with the accident which happened to the plaintiff a few days later. The most that can be fairly said of the evidence is that in adjusting this new wheel the engineer found it necessary to file the rubber somewhat. There is no evidence that the wheel or the rubber was defective in any particular, except as this inference might be drawn from the fact that it was filed in the work of adjusting a hew wheel, and this is so obviously a matter which might properly be intrusted to a competent engineer that it is not necessary to cite authorities.. There is no allegation in the complaint that the machine itself was not a proper machine for the purpose for which it was used; there is ho suggestion that there was any defect in the wheel which was supplied by the manufacturer of the machine as a substitute wheel, to be used while the rubber band was being replaced on the original wheel, that an inspection on the part of. the master would have disclosed, and the case is absolutely barren of evidence which discloses the neglect of any duty which the defendant owed to the plaintiff. There was an accident and the plaintiff suffered an injury, but he has not pointed out any duty which -the master owed to him which has not been performed. So far as the case discloses, the defendant furnished a machine in common use, properly equipped, and employed the plaintiff to operate it; the machine worked properly on the day previous to the accident, while the plaintiff was away, and it worked “ all right,” according to the plaintiff’s own testimony, from morning until about two o’clock in the afternoon, when the accident happened, and aside from the testimony that the engineer, in substituting a new wheel with a new rubber band, filed the rubber to some extent, there is- nothing to suggest that there was anything about the machine which was not perfect, and in the matter of the filing the. evidence does not show that it had any relation whatever to any defect which might be supposed to have caused the saw to leave the upper wheel. To affirm this" judgment is to hold the master practically: as. an insurer. The judgment and order-.appealed from should be reversed and a new trial granted. Hirschberg, P. J., Jenks, Rich and Carr, JJ., concurred'. Judgment and order reversed and new trial granted, costs to abide the event.