
    Michael Caboni, as Administrator, etc., of Emmanuele Coletta, Deceased, Appellant, v. Fred A. Gott, Respondent.
    Fourth Department,
    March 27, 1912.
    Master and servant — negligence — death by fall of earth — Labor Law-construed—assumption of risk — erroneous charge.
    Since the amendment to section 202 of the Labor Law, made by chapter 852 of the Laws of 1910, it is error to charge in an action to recover for the death of a laborer, who was killed in a trench by a fall of earth subsequent to a blast, that the jury may find that, if the defendant was negligent in failing to inspect the bank after the explosion to ascertain whether it was safe and the plaintiff continued to work in the trench knowing of the failure to inspect, he assumed the risk and that the defendant would not be hable.
    Having made such erroneous charge, it was further error to refuse to charge that, if the jury found that the fall of earth was due to a defect which could have been discovered by reasonable inspection, the death of the deceased was not due to assumed risk.
    Robson, J., dissented.
    Appeal by the plaintiff, Michael Oaboni, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 26th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    Plaintiff’s intestate was killed while in the employ of the defendant in the work of removing a bank of earth along a trench dug for a sewer in the village of Medina.
    
      Horace O. Lanza and Angelo F. Scalzo, for the appellant.
    
      Clinton B. Gibbs and Layton H. Vogel, for the respondent.
   Foote, J.:

The jury were instructed that they might find the defendant liable if the foreman was negligent in putting plaintiff’s intestate to work in a place of danger, or a place the dangerous character of which might have been discovered by the exercise of reasonable care; also that if the plaintiff’s intestate was negligent, contributing to his injuries, there could be no recovery, notwithstanding they found defendant’s foreman to have been negligent; also that if the defendant was negligent in that the foreman failed to inspect the bank after the explosion of the dynamite to ascertain whether the bank was still reasonably safe before setting the men to work under it, and plaintiff’s intestate knowing that no such inspection had been made, and being aware of and appreciating the danger, continued to work under this overhanging bank, the jury might find that he assumed the risk of personal injury, and that, if they did find that he assumed the risk, plaintiff could hot recover.

The amendment made by chapter 352 of the Laws of 1910 to section 202 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), which was in effect at the time this accident occurred, provides: In an action brought to recover damages for personal injury or for death resulting therefrom received after this act takes effect, owing* to any cause, including open and visible defects, for which the employer would be liable but for the hitherto available defense of assumption of risk by the employee, the fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of the danger of personal injury therefrom, shall not be as matter of fact or as matter of law an assmhption of the risk of injury therefrom.”

The learned trial judge was in error, in view of this amendment to the statute, in instructing the jury that they might find that plaintiff’s intestate assumed the risk, and in case they did so find that defendant would not be liable. In view of the charge upon this subject, plaintiff’s counsel made a request to charge, as follows: “I ask your Honor to charge the jury that if they find as a fact that the falling of the crust that killed the deceased was due to a defect which could have been discovered by the foreman by the exercise of reasonable and proper care, test or inspection, then and in that case the death of deceased was not due to assumed risk.” The court declined to so charge and allowed an exception to plaintiff. We think this exception was well taken. It was the law of the case under this charge that the defendant was liable in case his foreman negligently set plaintiff’s intestate to work at the place where he was injured without having used due care to ascertain whether it was safe. The request to charge must be construed in view of the charge as made, and so construed we think it fairly called for a correction of the charge as to assumed risk to conform to the amended statute. The jury has found a verdict in favor of the defendant. There was ample evidence to support the verdict, either upon the ground that defendant’s foreman was not negligent or that plaintiff’s intestate was negligent, but we are unable to say upon this record that the jury may not have found upon these questions in favor of the plaintiff and based their verdict upon the sole ground that plaintiff’s intestate assumed, the risk. Hence, the plaintiff may have been prejudiced by the refusal to charge as requested.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Robson, J., who dissented.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  