
    Frank Logerto, Respondent, v. Central Building Company, Appellant.
    Second Department,
    January 24, 1908.
    Master and servant — trial—validity of exception.— negligence — injury • by fall of embankment—place to work creatéd by servant — assumption oí risk — Employers’ Liability Act construed.
    ■ The validity of an exception to the denial of a motion to dismiss the complaint in a negligence action will be tested by the- theory on which the case was tried and submitted to the jury. •
    • The rule of safe place to work has no application where the danger was created by the plaintiff and his fellow-servants during the progress of the work which " they engaged to do.- . " ■ ■ ■ ■: ■'
    Thus, the rule is inapplicable where the plaintiff injured was employed to exca- ■ .vate- a cellar-by first digging at the base o.f a perpendicular bank of earth to undermine it and then-prying off the overhanging bank above, for the plaintiff contracted to do the very thing which caused, the injury and assumed the ■necessary hazards of the. situation. ' • ■■'.'.'
    The facts aforesaid bring the case within the rule that every one has "a lawful ' right to carry on a business which is dangerous either in itself or in the manner of conducting it, if it is not unlawful and interferes with no rights of others, •and is not liable for resulting injury to a servant who is. capable of contracting for himself and knows the danger attending thebusiness in the manner in which it is conducted. .
    
      App. Div.] Second Department, January, 1908.
    In prosecuting work of the simple nature aforesaid, the master is not required to promulgate rules, nor to inspect, that being hut, an incident to the duty of furnishing a safe place to work.
    Section 3 of the Employers’ Liability Act distinguishes between necessary and obvious risks; the servant is conclusively presumed to have assumed the former while his assumption of the latter is a question for the jury.
    The statutory definition that, necessary risks are those “inherent in the nature of the business, which remain after the employer has exercised due care in providing for the safety of his employees ” is merely declaratory of the common law.
    The master, is under no duty to guard a servant against ordinary or necessary risks, and in case of injury to the servant therefrom he cannot recover, not only because he assumed the risk, but because the master was not negligent. '
    Hooker, J., dissented, with opinion.
    Appeal by the defendant,- the Central Building Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of April, 1907, upon the verdict of a jury for $10,000,. and .also from an order entered in said clerk’s office on the 8th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      John C. Robinson [Frank V. Johnson with, him on the brief], for the appellant.
    
      Thomas J. O'Neill [J. Brownson Ker with him on the brief], for the respondent.
   Miller, J.:

The action is for personal injuries resulting from negligence, and is brought under the Employers’ Liability Act. The plaintiff, a common laborer, was employed, with others, under the supervision of a superintendent or foreman, excavating for a cellar. . At the time of the accident he and the men working with him were digging at the base of a perpendicular bank of earth, fourteen feet high, for the purpose of undermining the bank so that it could be pried off with bars from the top, when the overhanging bank thus undermined fell upon him, inflicting a severe injury. He had been employed at this kind of work thirty-five days, the method being to undermine the bank and then to pry off the overhang as indicated above. The plaintiff’s evidence tended to establish the fact that the men worked at the base of the bank until directed by the foreman to cease excavating, while the defendant’s evidence was to- the effect that the men used- their own judgment as. to.when to cease excavating and to pry down tlie overhang. The complaint instead of containing a general allegation of the defendant’s negligence, specified the grounds of negligence- as follows, viz.: That the injuries sustained by this plaintiff, - as aforesaid, were caused ■ without any negligence on his part in anywise contributing thereto, ' but solely by the negligence of the defendant, in that as plaintiff’s master, it failed to furnish him with a reasonably safe place, ■appliances, ways, works and machinery in and in connection with-which to work, and in that defendant negligently failed' to safeguard, inspect and keep safe the place, appliances, ways, works, machinery and apparatus in arid in connection with which plaintiff was obliged to work, and in that defendant knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist plaintiff in the performance of his work, and in that defendant , failed to" formulate, promulgate and enforce ■proper rules and regulations for the safety of plaintiff and his. co-emploj'ees,. as a. result of all of which certain earth, stone and material was caused and permitted to fall upon tins plaintiff’s body • and injure him as- aforesaid.” A motion to dismiss was made at the ■ close of the plaintiff’s casé and renewed at the close of the entire case. The only question of negligence referred to by the: court in the main charge was whether ;the_ defendant failed to furnish the plaintiff a safe place in which to work, but at the close of the charge the jury were instructed at the plaintiff’s request as follows: That it was the duty of the defendant to conduct its work in a. reasonably safe manner and by reasonable methods, and if the plaintiff was injured as a failure of the defendant so to do, the jury is to find the-defendant guilty of negligence in.that regard.” ISTo except tion was taken to the charge of the court., The validity of the exception to the refusal of the motion to dismiss will be tested by the theory on which the case was tried and submitted to the jury;

The danger to the plaintiff and his fellow-workmen was. created by themselves during the progress of the work which they engaged to do, hence the rule of safe place has no application, as the learned: counsel for the respondent practically concedes. (Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339; Russell v. Lehigh Valley R. R. Co., Id. 344.) The verdict is now sought to be sustained on the ground of the method and manner of doing the work, and the respondent urges that the. jury could find the master negligent for having the work done in the manner hereinbefore stated instead of adopting the safer but' more expensive method of having the bank taken down from the top ; but the plaintiff contracted to do the very thing which caused his injury, and however hazardous the work, it seems clear that he assumed all the necessary hazards of the situation, and that liability cannot be east upon the master solely because it would have been safer to do the work in some other way. The defendant employed the plaintiff to undermine this bank of earth ; the dangers incident to .doing that must have been equally obvious to both, and there was no implied obligation on the part of the master to protect the servant from the necessary dangers which the latter assumed when he entered into the contract of employment. The rule seems to be applicable that every one has the legal right to cany on a business which is dangerous, either in itself or in the manner of conducting it, if it is not unlawful and interferes with no rights of'others, and is not liable to one of his servants who is capable of contracting for himself and knows the danger attending the business in the manner in which it is conducted for an injury resulting therefrom.’ ” (Labatt Mast. & Serv. 84, and see cases cited in the note to sustain the quotation.) There are no facts in this case upon which to base any of the limitations to the doctrine, a disregard of which that learned author thought had led to unwarrantably harsh conclusions in some cases. For eases very similar to the case at bar, see Bradley v. Chicago, M. & St. P. Ry. Co. (138 Mo. 293); Simmons v. Chicago & Tomah R. R. Co. (110 Ill. 340); Naylor v. Chicago & Northwestern Ry. Co. (53 Wis. 661); Rasmussen v. Chicago, Rock Island & Pacific Ry. Co. (65 Iowa, 236); Griffin v. Ohio & Mississippi R. Co. (124 Ind. 326). In the Bradley case, cited supra, the defendant was held liable because of a departure without the servant’s knowledge from the customary method of guarding against the danger. In the cases relied upon by the respondent; like Simone v. Kirk (173 N. Y. 7), the negligence was the failure to furnish a safe place in which to work. Of course the servant impliedly assumed only the necessary dangers,, not those resulting from the master’s negligence; what duty then did the master omit in respect to the method pursued % It is said that rules should have been promulgated, but such simple work as that involved here did not call upon the master to provide rules. . The duty of inspection, which is suggested, is but an incident to the duty of furnishing a safé place which, as we have seen, is not involved. It was the master’s duty to furnish suitable implements, and a sufficient number of competent servants. But no complaint is made 'of a breach of that duty. A foreman was furnished to supervise the work, and there is no suggestion that he was incompetent. „ ■

The respondent contends that the question of assumed risk could .not be disposed of as one of law, because of section 8 of the Employers’ Liability Act (Laws of 1902, chap. 600). But it will be noticed that that section distinguishes between, necessary risks and obvious risks; the servant is conclusively presumed to have assumed the former, the question of his- assumption of the latter is for the jury. (Vaughn v. Glens Falls Cement Co., 105 App. Div. 136.) He impliedly assumes the former when he enters into the contract; his assumption of the latter depends upon the application of the maxim volenti non fit injuria. True, the statute defines • necessary risks as those inherent in the nature of the business, which remain after the employer has exercised due care in providing for the safety of" his employees,” but that is but declaratory of the common law. (Benzing v. Steinway & Sons, 101 N. Y. 547.) The master is under no duty to guard the servant. against the ordinary or necessary risk's, and in case of injury to the servant- therefrom,, the latter cannot recover, not only because he assumed the risk, but because the master was not negligent. We do not say that the plaintiff cannot recover under the Employers’ Liability Act for the negligence of the defendant’s superintendent (see Lynch v. Allyn, 160 Mass. 248), but that question is not now before us.

The judgment must be reversed.

Woodward and Jenks, JJ., concurred; Hooker, J., read for affirmance; Hirschberg, P. J., not voting.

Hooker, J. (dissenting):

Obvious risk is such as is apparent, and it must be app'arent to the person who is claimed to have assumed the risk. Danger from heat generated upon the union of sulphuric acid and water might be perfectly apparent to one familiar with the inside of a chemical laboratory ; danger of the collapse from the overloading of a mechanical structure might be perfectly apparent to a mechanical engineer; and danger from the misuse of an electric current might be entirely apparent to an expert electrician; but these and similar dangers are hidden mysteries to many, and vaguely understood by others. On the other hand, it may well be that generally the danger from a revolving buzz saw is apparent to all who see it in operation. There is a sliding scale of character of dangers, and another of the ability of those who are in danger to understand them. It is fitting, therefore, that it should be left, as provided in .the statute, to a jury’s judgment, whether the danger is obvious.

Here a bank of earth was being removed by the plan of undermining it, and prying off the overhanging portion. The plaintiff was twenty-four years old and had never been engaged in any other work than at “ laboring work, working with a pick, working at excavations, general laboring work; ” he was unable to speak English and testified upon the trial through an interpreter. Whether it was known to him that danger was to be apprehended by undermining this bank, supposing that the defendant had exercised due care to protect its employees who were doing the work, was, it seems to me, a question of fact for the jury’s determination, and it should not be held as matter of law that this risk was obvious to this plaintiff. Under the circumstances of the plaintiff’s walk in life, the business that he was and had been engaging in, and his ignorance, even of the English language, the jury were justified in finding as a fact that he did not understand the danger, and hence that it was not apparent to him. 1 am, therefore, of the opinion that the plaintiff did not, as matter of law, assume the risk. (See Farrell v. City of Middletown, 172 N. Y. 666; Reilly v. Troy Brick Company, 184 id. 399.) This view leads me to dissent, and I vote that the judgment be affirmed.

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