Error
to circuit court, Alpena county; Frank Emerick, Judge.
Action
by Samuel T. Willis against the Besser-Churchill Company for
personal injuries. From a judgment for plaintiff, defendant
brings error. Reversed.
MOORE
J.
The
plaintiff, while operating a circular saw for defendant
severely injured his hand. For this injury he brought suit
and recovered judgment. The case is brought here by writ of
error. Many questions are raised by counsel, but we think one
of them is decisive. The plaintiff was a man of at least
ordinary intelligence, 37 years old. According to his
testimony, he had lived in the lumber region about 15 years
and had worked around or about sawmills 8 or 9 years. He
worked 30 or 35 days in defendant's mill, taking bolts
from the drag saw to the cut-off table. He quit work for a
time, when he was employed to work at the cut-off table and
saw. The manner of doing the work is described as follows by
the counsel for plaintiff: 'The cut-off
table and saw were used in sawing and cutting the long bolts
taken from the drag saw in proper lengths for shingles, and
consisted of a fixed, stationary, circular saw, with hooked
teeth, and a movable, trough-shaped table, with a slot and
opening transversely through the back and partly through the
bed or base of the table, through which the saw would
protrude when the movable table was pushed back towards the
saw. The table was built on frame timbers or legs fastened
near the floor of the mill on an iron rod in such a manner as
to be swung or moved by the operator from an upright position
over and towards the saw far enough to saw off the bolts. The
legs on which the table rested, and to which it was fastened
held the table in an upright position when not in operation
and were so constructed as to prevent the table from coming
further towards the operator than in an upright position, by
means of stationary stop timbers at the base of the legs of
the table, against which the legs of the table came in
contact when upright, and when bolts were not being sawed by
the operator. When the table with the bolt on
it was pushed forward by the operators on to the saw, a
V-shaped opening would be made between the stop timbers and
the base of the legs of the table; and, if any material
dropped into this V-shaped opening, it would prevent the
table from coming back in its proper place, and cause the saw
to protrude through the slot in the table to an extent
controlled by the size of the obstacle. Two men operated this
table. The plaintiff was one at the time of the injury; John
McAuliff, the other. Together they would place a long bolt on
this trough-shaped table, square off one end of the bolt,
together shove it along against a stop gauge attached to the
back of the table and to the left of it, as you face the
table, to gauge the length of the cut. They would then shove
the bolt into the trough of the table, and together would
shove the table against the saw. When the cut was sawed off,
they would pull the table back to its upright position; and,
if no obstacle lodged between the stop timbers and the legs
of the table at the base of the legs aforesaid, the table
would come back so as to clear the saw.' The plaintiff
worked with this machine 5 1/2 days, when he was hurt. At the
time of the accident, which occurred about 11 o'clock in
the forenoon, the men had a wet, slimy, cedar log about 10
inches in diameter on the table. They had
squared off the end of the log, and cut...
