defendant without instruction; that the foundation on which it. rested was ashes, garbage, etc., and that it was not properly braced; that it was started with a jerk and vibrated; that he had to stand on a box to work. While cutting the first stick his-hand was lacerated.
Defendant denied that he set plaintiff at this work, and testified that the machine was properly braced and did not vibrate.
The judge charged that plaintiff took the risk of operating the-machine; that he was bound to establish affirmatively that he' himself was not negligent and that defendant was at fault; that if the machine was originally put up safe and secure' defendant is not to be charged, if it came out of repair, unless it is shown,. which has not been done in this case, that that had existed long enough to apprise him of that fact, or that he was notified of the-fact; that the burden of proof was on plaintiff to establish affirmatively his case, and if he fails to do it on any point defendant was entitled to a verdict.
Wm. M. Mullen, for app’lt; George J. Greenfield, for resp’t.
This plaintiff, while at work for the defendant sawing wood by a circular saw operated by steam, had his hand so injured by the saw as to render amputation of the hand necessary.
This action is for the recovery of the damages resulting from such injury, and the usual questions arising in actions of negligence are involved here.
The plaintiff obtained a verdict and the defendant has appealed.
There were sharp disputes in the testimony, and so the whole-case became a proper one for the jury.
The charge was severely against the plaintiff, and in one respeck erroneously so, and laid upon him a burden heavier than the law imposed, yet the burden was sustained, and we cannot disturb the verdict.
ISTo errors were committed, and the judgment and order denying a motion for a new trial on the minutes should be affirmed.
Barnard, P. J., and Pratt, J., concur.