
    Rose Davenport, Respondent, v. Oceanic Amusement Company, Appellant.
    Second Department,
    May 7, 1909.
    Master and servant—negligence — injury to employee taking part in spectacular exhibition—failure to promulgate rales.
    Where the negligence of a master is based upon his failure to promulgate proper rules for the safety of his employees, the action is at common law and the plaintiff is not entitled to the protection of the Employers’ Liability Act, even though he has served a notice under that act and put it in evidence without objection.
    Where one employed .to assist in a spectacular representation of a burning building by allowing herself to be carried down a rope by one impersonating a fireman was injured by striking, the building, owing to the fact that another employee took hold of the lower portion of the rope, the master cannot be charged with negligence upon the ground that he had failed to promulgate a rule prohibiting other employees from touching the rope. The peril of such act . of a fellow-servant was obvious and assumed by the plaintiff.
    Gaynoe, J., dissented in part.
    Appeal by the defendant, the Oceanic Amusement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12tli day of June, 1908, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 29th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Samuel S. Whitehouse, for the appellant.
    
      Frederick N. Van Zandt, for the respondent.
   Woodward, J.:

The plaintiff was employed to assist in the production of a spectacular performance at Coney Island, known as “ Fighting the Flames.” A five-story building is represented as being on fire; the plaintiff is taken from a fifth story window by one Conyes, representing a fireman, and carried down a- rope. At the same time other inmates of the building are jumping from windows into a netting. On May 19, 1905, while the plaintiff was performing her act, one Annie Leonard was employed to jump from a lower window, and on landing in the netting and in getting out of the same upon a coping or board walk erected around the same for the purpose of enabling the performers to get to the floor below, she grabbed hold of the rope on which Conyes and the plaintiff were coming down, and they were thrown against the walls of the building, the plaintiff sustaining injuries for which the jury has awarded her substantial damages. The defendant appeals from the judgment and from an order denying a motion for a new trial.

While the complaint alleges the giving of a notice, and the plain tiff was permitted to put in evidence a copy of a notice served upo a the defendant without objection, neither the notice served nor the allegations of the complaint bring the case within the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600), for the reason that the negligence relied upon constitutes a common-law action and consists in a failure on the part of the defendant to promulgate rules for the government of its employees. This is the only tenable theory on which the plaintiff can stand, and she cannot gain any aid from the Employers’ Liability Act, for the law is well established that that act has no relation to the common-law right of action. The evidence showed that the plaintiff had been performing this same act for five days, five times each day, at the time of the accident;. there was no suggestion that the rope and appliances used were defective in any way, and the only grounds of negligence seriously urged were that the defendant had failed to instruct Annie Leonard and other employees that they must not touch the rope on which the plaintiff was to descend, and that the defendant had failed to supply a man at the foot of this rope to see that it was not touched. We are persuaded that the plaintiff, who could see the situation as clearly as the defendant, accepted the obvious risks of this employment, and that the danger to be anticipated from some one grabbing this rope was not of ¡süch a character as to call upon the defendant to anticipate it by rules or precautions such as are now suggested. Conyes and the plaintiff had been performing this act for some time under the same circumstances, and it does not appear that it had ever occurred to either of them that there was any danger to be anticipated from the source from which this accident arose, or that it was one which had ever occurred before, or that it was one which must naturally result if any one should happen to lay hold of the rope. So far as we can - gather from the record, this rope was carried by Conyes to the. fifth-story window,'there fastened to a hook and the other end permitted to fall to the floor below, the fireman ” taking the plaintiff on his shoulder and sliding down the rope. It does not appear that the lower end of the rope was expected to fall within the net, or that in any of the previous performances any one had ever touched the rope, or that' any fact had ever occurred to show that it was not a reasonably safe way to carry on this spectacular show. We are of the opinion, therefore, that this being a common-law action, the plaintiff must be deemed to have accepted the risks of the employment, which wereyas open and obvious to her as to the defendant, and that the danger was not one to be reasonably anticipated, and that it was not, therefore, the duty of the defendant to have provided the safeguards which, since the accident, are- suggested. ' The test of actionable negligence is not what might have prevented the particular accident, but what reasonably prudent and careful men would have done in the discharge of their duties under the circumstances as they existed! at the time of the accident, and tried by this test the plaintiff failed to establish her cause of action.

The judgment and order appealed from should be reversed.

Jenks, J., concurred; Hirschberg, P. J., arid Burr, J., concurred in result; Gaynor, J., concurred, except that he did not concur that the defendant was obliged to formulate rules or give directions not to .touch the rope; that the' rope should not be touched was obvious to any one without any rule.

Judgment and order reversed and new trial granted, costs to abide the' event.  