¶1There was no defect in the saw beyond the fact that it was out of set. This is of constant occurrence when the saws are being used. *354The plaintiff asked that the saw be set and he was told in substance that it would be done at noon or be seen to at noon. The plaintiff with full knowledge that the saw was out of set, used it, and he' testifies that by reason of the saw being out of set he was injured. The risk was one incident to the business.
¶2The judgment should be affirmed, with costs.
¶3(dissenting):
¶4This is an action to recover damages ensuing from a personal injury. The plaintiff was in the employment of the defendants as a wood sawyer, and was injured while tending a saw driven or operated by steam. The complaint was dismissed on the trial at the close of the plaintiff’s case.
¶5It appeared from the testimony introduced that the saw was out of order, and that the plaintiff had knowledge of the fact and requested the foreman on the morning of the accident to furnish a substitute as was the custom when a saw was out of set. The foreman said he was unable to have another saw ready for want of time, and directed him to hurry up and get the peddle out of the way and he would see what he could for the plaintiff at twelve o’clock. Then the plaintiff commenced to operate the saw which was dull and had no set, and he was in consequence obliged to push with greater force on the wood, when as he was doing so the saw caught and knocked the stick away and left the plaintiff’s hand in immediate contact with the teeth which cut off his thumb and forefinger. The binding of the saw or want of setting caused the injury.
¶6The nonsuit seems to have been given on the theory that the injury resulted from the negligence of Myers in failing to sharpen and set the saw and continue the same in order. "Without pausing to determine the position of Myers, our conclusion is that the judgment cannot be sustained. It was the duty of the defendants to furnish safe and adequate machinery for the plaintiff ' and maintain the same in order, and they were bound to perform that duty as masters, and could not delegate its performance so as to exonerate themselves from liability. (Fuller v. Jewett, 80 N. Y., 46.)
¶7Neither do we find the plaintiff chargeable with contributory *355negligence as a matter of law; while he knew the saw was out of set and likely to bind for that reason, yet he seems to have considered it capable of successful operation, as Myers did also. It does not appear that he knew the danger of injury was imminent, and the extent to which it was unfit or dangerous as bearing upon the negligence of both the plaintiff and the defendants was a ques tion of fact for the jury. Especially was this so in view of the fact that the plaintiff was directed to proceed and operate the saw just as he was doing at the time of the injury. (Hawley v. N. C. R. R. Co., 82 N. Y., 370.) The cause should have been submitted to the jury with proper instructions.
¶8The judgment should be reversed and a new trial granted, with costs to abide the event.
¶9Judgment affirmed, with costs.