Kilkenny, Carton and Rosen.
[103 NJSuper Page 458] Defendant Public Service Electric and Gas Company appeals from a judgment after a jury verdict in
favor of plaintiff Piro for the recovery of damages for personal injuries. Plaintiff was injured when he was struck by a piece of wood thrown due to a sawing operation conducted by plaintiff's employer, United Engineers and Constructors, Inc., at premises owned by Public Service.
Plaintiff alleged that this defendant was negligent in failing to provide a saw equipped with proper mechanical safety devices and failing to provide a safe place in which to work. Charges of breach of warranty against Public Service and DeWalt, Inc., the manufacturer of the electric saw, and an additional charge of negligence against DeWalt were dismissed at the conclusion of plaintiff's cases and the trial proceeded against Public Service on the single issue of negligence.
There is no dispute as to the fact of the accident, nor any essential dispute as to the manner in which it occurred. The sole issue relates to the legal responsibility of Public Service for the injuries sustained by plaintiff.
On March 21, 1963, plaintiff, while an employee of United, was struck on the left arm by a piece of wood thrown or ejected by an electric saw operated by plaintiff's co-employee. Public Service had engaged plaintiff's employer, United, under a written contract, "to act as (defendant's) construction department in the construction of an electric generating plant." Public Service conceded that it had supplied both the saw and the premises for the use of United in performing the construction contract.
The structure in which the accident occurred was a converted ferryboat which had been brought to the job site for the use of United in constructing the generating plant. The interior of this structure was divided into a number of different shops, one of which was a carpentry shop, equipped with a bench and an electric saw known as a "DeWalt 7-horse-power saw." The saw, which had a 16-inch blade, was described by Erbe, the man who operated it, as a "big saw, out of the ordinary for a mill." He said it had a metal table
covered with wood. The whole table with the saw included was 40 to 50 feet in length.
On the day in question, Erbe, working for United, was ripping a 3-inch strip from a plywood board some 8 feet long and 2 feet wide and 5/8 inches thick. Working with him was an apprentice whose function was to catch the 3-inch strips as they came through the saw. The apprentice was supposed to jab the strips with a block of wood. While doing so, the apprentice said the teeth on the blade grabbed the wood and threw it back toward plaintiff.
At the time the accident happened, it was not disputed that the saw did not have on it an anti-kickback device. This device was described as resembling a "fifth hand," which drops down on the wood being cut and, by the application of pressure, prevents it from being thrown back by the action of the saw blade. Such a device is required to be provided according to the regulations of the New Jersey Bureau of Engineering and Safety on all hand-set circular saws and on radial saws (such as the saw in question) when used for ripping. Public Service had purchased this device along with the saw in 1956 but the anti-kickback device was not on the saw on the day of the accident. Plaintiff's proof established that it had not been removed by the operator of the saw since the time he began his employment in December of 1962.
Defendant did not dispute that there was no "spreader" on the saw as required by the regulation of the Department of Labor and Industry. The spreader is a device "used to prevent the wood from coming back on the saw."
Nor was there any dispute that the hurling of the wood which injured plaintiff resulted from a "kickback." Testimony presented by experts on behalf of plaintiff was to the effect that the presence of the anti-kickback ...