
    David Gorman, Respondent, v. Lynn B. Millikan, Appellant.
    Third Department,
    January 4, 1911.
    Master and servant — negligence — Employers’ Liability Act —r assumptions of risks due to negligence' — erroneous charge.
    In an action against a .master under the Employers’Liability Act it is error to refuse to charge that, although the defendant was negligent in failing to furnish adequate appliances, the servant' may, nevertheless, assume the open and obvious risks due to such, negligence. It is only incidental risks due to-the negligence of the master that the servant does not assume under the statute.
    Appeal by the defendant, Lynn B. Millikan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Albany on the 28th day of March, 1909, upon, the verdict of. a jury for $5,000, and. also, from an order entered in said clerk’s officé on the 30tli day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.,
    
      Marcus T. Hun and Michael D. Reilly, for the appellant.
    
      William H. Murray, John F. Murray and Andrew J. Nellis, for the respondent.
   Per Curiam :

In this action of servant ágainst master plaintiff has recovered a judgment for personal injuries due to the alleged negligence of the defendant. Plaintiff was engaged in the work of lowering heavy planks weighing 300 or 400 pounds from the top of a structure to the ground, a distance of about sixty-five feet. The defendant has.'., been found negligent in not furnishing adequate appliances or instrumentalities for the work. The court in charging the jury, after reading section 3 of the Employers’ Liability Act relating to the assumption of risks by the employee, stated with somewhat more than usual emphasis that an employee never assumed risks due to the negligence of the master; that he assumed the risks of the business inherent in the occupation, and which he knew about and understood, but never assumed risks due to the negligence'of the master. With varied phraseology the counsel for the defendant at the close of the charge made several requests, the purpose of which was to have the jury instructed that even though the defendant was negligent, if such negligence was obvious and known to the plaintiff, he might nevertheless have assumed the risk of such negligence. The court declined to charge these propositions - and steadily adhered to the position taken in the main charge. The learned trial justice was in error. (Milligan v. Clayville Knitting Company, 137 App. Div. 383; Bria v. Westinghouse, Church, Kerr & Company, 133 id. 346.) There has perhaps been more or less confusion in regard to this question, but as stated in the cases cited the principle enunciated by the learned trial justice relates only to incidental risks and has no relation to open and obvious risks which the servant knows about whether such risks are due to the negligence of the master or to the nature' of the business. In the present case, assuming the defendant to have been negligent,, it is a serious question on the facts whether the plaintiff did not fully understand that he was working with insufficient appliances and with knowledge of the danger arising therefrom. The question of the assumption of risk by plaintiff was of vital importance, and the jury should have been carefully and accurately instructed in reference thereto. The error of the court was, therefore, a substantial one, and may very

easily have been the pivotal factor in the minds of the jury in reaching their verdict.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. 
      
      See Laws of 1902, cliap. 600, § 3; revised in Labor Law (Consol, Laws, chap. 31; Laws of 1909, chap. 36), § 202.— [Rep.
     