Opinion
February 20, 1914.
Richard J. Donovan [ Herbert D. Cohen with him on the brief], for the appellant.
Edward Bruce Hill, for the respondent.
Present — JENKS, P.J., THOMAS, RICH, STAPLETON and PUTNAM, JJ.
In August, 1910, plaintiff was an employee of the defendant at its factory and plant at Constable Hook, N.J. The New Jersey Factory Act then provided that whenever practicable all "vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws, drums and machinery of every description shall be properly guarded." (Laws of 1904, chap. 64, § 13; 3 Compiled Stat. N.J. p. 3026, § 28.)
The plaintiff, aged twenty years, had worked for the defendant in this place for about six weeks. He had been a carpenter's helper, and on the day of the accident was assisting them in putting up wooden forms for a concrete tank. Plaintiff, following one Collins, another laborer, went to the mill to get two-inch wooden strips. Whether or not Bakewell was told to rip out these strips is disputed. His own version was that Smith, the carpenter in charge, told him: "You better go over and rip them strips." Plaintiff overtook Collins, and went to the ripsaw, which rose about an inch and a half above the table, and taking up one end of a board twelve inches wide, an inch in thickness and about sixteen feet long, proceeded to feed the board into the circular saw. Collins stood opposite, facing the saw, and pulled the sawn ends through. After this board had been thus sawn through four times, on the fifth and final sawing, when plaintiff's end was about a foot from the saw, his left hand touched it, so as to cut off parts of three fingers and lacerate his hand. Plaintiff said that the board jerked suddenly and drew in his hand.
Other testimony was to the effect that plaintiff had been sent after strips, but had not been told to cut them, indeed had been warned not to use this saw at all. The other laborer, Collins, who faced plaintiff at the saw, testified that plaintiff was looking off toward a workman, Najengast, and as he turned around to shout to him, plaintiff threw his hand up against the saw.
Plaintiff's cause of action, having arisen at a factory in Constable Hook, in the State of New Jersey, depends upon the statutes and decisions of that State. The trial court submitted the issues of defendant's failure to guard the saw, and as to plaintiff's contributory negligence and his assumption of the risk, to the jury, who returned a verdict for the defendant.
Fitzwater v. Warren ( 206 N.Y. 355), Welch v. Waterbury Co. (Id. 522; on further appeal, 159 App. Div. 509), coming down subsequent to this trial, move appellant to urge that our declared policy is against an employee assuming the risk of the employer's failure to comply with a public statute. The Court of Errors and Appeals of New Jersey, however, holds that this Factory Act did not take away this defense. ( Mika v. Passaic Print Works, 76 N.J. Law, 561; Goodrich v. Cort, 80 id. 653.) An employee in New Jersey may, therefore, assume the risk from an unguarded saw, so as to raise an available defense. The transitional state through which New York law is passing cannot change our obligation to apply the decisions of the highest court of New Jersey in interpreting the statute of that State for the purpose of administering a remedy given thereby. ( Jessup v. Carnegie, 80 N.Y. 441; Leonard v. Columbia Steam Nav. Co., 84 id. 48.)
The trial court, therefore, rightly applied the law of New Jersey, and the judgment and order must be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.