
    Michael R. Schwartz, Adm’r, App’lt, v. John M. Cornell et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Master and servant—Assumption op risks.
    If a servant, before he enters service, knows or afterwards discovers, or if, by the exercise of ordinary observation or reasonable skill or diligence he may discover, that the building, machine, or fellow-servant, with whom he is to labor, is unsafe or unfit, and if, notwithstanding he voluntarily enters into or continues in the employment, without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable.
    This is an appeal from a judgment dismissing plaintiff’s complaint and from an order denying a motion for a new trial.
    The action was tried before Judge Ingraham and a jury, and at the close of plaintiff’s case a nonsuit was ordered.
    Charles A. Schwartz, a sober, industrious, active young man, twenty-three years of age, for several years prior to August 14, 1888, had been an employe of J. B. & J. M. Cornell, large iron workers and builders of iron buildings in the city of New York, and who, on the 14th of August, 1888, were engaged in erecting and placing the iron work in a large building for the Edison Electric Light Company, at 47 and 49 W est Twenty-sixth street, in this city.
    He had been a master mechanic since reaching twenty-one years of age, but his education and work had been that of an inside as distinguished from an outside workman. This distinction between inside and outside workmen in the iron trade is a marked one, the inside man attending simply to preparing and getting out the iron, filing, fitting, etc., in the shop, whilst the outside workman goes upon the building and puts up the girders and other iron as prepared for him at the shop. Schwartz had never worked on an outside job before. Experience and education, therefore, had not taught him to walk beams with a clear head, nor to appreciate dangers that to one brought up to the business were apparent and carefully avoided.
    Fink, Schwartz’ helper, was also an inside man, and the same is true of the entire squad of men working on the same floor with him.
    Bomer was foreman of this squad, also an inside workman, and was totally inexperienced 'in superintending men working outside the shop.
    This inexperience was known to defendants, for one of their chief foremen, George Cornell, told a workman sent to this very job that “Bomer did not know what in — he was doing.”
    William Henry Schwartz and John Penny were both sent to the building to do some work there, and were unable to -find Bomer there, and although Bomer was foreman in charge of all men there, under instructions from George Cornell, they did their work without consulting him at all. Bomer says he also had charge of another job on Thirty-ninth street, and was only at this job off and on for an hour or so. The deceased was a wide-awake, cautious fellow.
    About a week before August 14, 1888, Charles Schwartz and his eleven uneducated companions, in charge of John Bomer, had been taken out of the shop and placed at cutting and fitting corrugated iron between iron girders for the purpose of making a foundation for a cement floor, at the above building, Nos. 47 and 49 West Twenty-sixth street. This floor, about 100 feet long by sixty wide, was divided lengthwise into three parts by two heavy transverse girders which formed the foundation of iron pillars supporting similar girders above. Between these transverse girders and at right angles to them were cross girders, about eighteen inches'apart, and between these was placed the corrugated iron, upon which concrete was laid to a level. The right third of this floor, the center and more than half the left third, was finished and concreted as above, and Schwartz and his associates were engaged upon the left third, working from the center toward the rear. At the rear end of the center floor were three openings which were finished, so far as these men were concerned, being left for a stairway; the center opening was about 18 feet by 5, and had been covered with boards by some carpenters who had put in the sashes in the windows just above, but the two openings on each side of the center one, each about 2 feet by 4 or 44, were uncovered and entirely unprotected. The brother of the deceased kicked a lime barrel through one of these side openings and it fell to the bottom.
    It is a universal custom in the iron trade for such openings, when not being worked upon or used, to be covered up and kept covered.
    Plaintiff sought to prove this by competent evidence, and a half dozen good exceptions will be found at fols. 153-156.
    Romer admits that the opening through which Schwartz fell was uncovered all the time he was there, and that the center one was covered by some one else.
    Considerable contradictory testimony will be found in the case as to the number of anvils in use, their weight, location, and what they were placed upon, much of it being caused by the justice allowing defendants to go into their affirmative defense in the examination of plaintiff’s witnesses. Romer and Yanderbeck swear there were six anvils, three on each side of center floor at equal distances apart, placed on lime barrels; their weight, Romer says, 18 or 20 pounds, and Yanderbeck fifty pounds, but readily movable at the will of the workmen. There were six couples working and only four anvils. Schwartz was using the only anvil not in use; it was placed upon a lime barrel and was about three feet from the opening through which he fell. Romer had no personal knowledge about it, as he did not see Schwartz using the anvil that.morning. As against this testimony, we have the size of the anvil, two and one-half feet long, eight inches wide and four to five inches thick. It weighed 100 pounds, and was placed on the long transverse girder to give a firm support, with a block of wood beneath, being too heavy to place on a lime barrel, as the blows upon it would at once break the barrels to pieces. Deceased was engaged, with his back to the opening on the center floor, trimming a piece of corrugated iron, and when this fell he stepped back to avoid having it strike his feet, when he stumbled or tripped and fell backward through the opening. Beneath the opening, twenty-three feet down, was a brick foundation upon which he fell, crushing his skull and dying almost immediately. Romer gave no instructions where to place the anvil, nor what precautions to take to ensure safety, except to tell them to be careful and not fall. Even this precaution was not taken on the morning in question. Eomer testifies : “I came into the building and saw they were all at work there. I had no occasion to speak to him. I had no conversation with him.” Immediately after the accident the opening was covered over, but a conversation about this with Eomer that took place within half an hour was excluded.
    There is no evidence that Schwartz put the anvil where it was, but it seemed to be safe enough, for Vanderbeck, on the morning in question, was waiting to use it.
    There was evidence, however, that the hole was clearly apparent. It was in a well lighted part of the floor known to all the witnesses who were fellow workmen and examined on the part of the plaintiff, and its existence known as well to the intestate. Indeed, he was working so near it when he fell through it that he must have seen it when he approached the place where he was working. The judge presiding dismissed the complaint, expressing his views in a short opinion, thus:
    The Court.—There is no doubt about this question. There is absolutely no evidence that would justify a finding that the defendant was guilty of negligence, and from the evidence it is absolutely apparent that the injury was the result of the plaintiff’s own voluntary act; his own act in picking out this locality and working alongside of that hole. He had hundreds and hundreds of square feet about there where it was absolutely safe to do his work, and he deliberately chose, of his own volition, the only place on that floor that was unsafe. To make the defendant liable for an accident under those circumstances would, in my opinion, reverse qvery rule of law. If the jury should find a verdict for the plaintiff, I should set it aside. I think my duty would be to set it aside.
    
      Hector M. Hitchings, for app’lt; John Notman. for resp’ts.
   Brady, J.

Giving the plaintiff the benefit of all the propositions urged in his favor, namely, that the foreman put in charge of the men, including the plaintiff’s intestate, was incompetent; that the defendants were remiss and negligent in not covering the hole through which the intestate fell, and did not, therefore, discharge the duties they owed to the workmen, nevertheless the evidence shows conclusively not only that the intestate knew of the existence of the hole, but that in working near it he exposed himself to danger voluntarily, inasmuch as he was not obliged to do his work at that point, and apparently chose it because it was more convenient and involved less labor. And no case can be found in the books in which a workman, albeit unused to the employment he was engaged in, but with full knowledge of its dangerous features and surrounding elements, has recovered for injuries received from one of such dangers to which he voluntarily exposed himself. He is bound to protect himself by the use of his senses. The rule is well settled.

“ If the servant, before he enters the service, knows, or if he afterwardsdiscovers, or if, by the exercise of ordinary observation or reasonable skill or diligence in his department of service, he may discover that the building, premises, machine, appliance, or fellow servant in connection with which or with whom he is to labor, is unsafe or unfit in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint', he is deemed to assume the risk of the danger thus known or discoverable and to waive any claim for damages against the master in case it shall result in injury to him.” Thompson on Negligence, 1008; Haskins v. N. Y. C. & H. R. R. R. Co., 65 Barb., 129; affirmed, 56 N. Y., 608; Jones v. Roach, 9 Jones & Sp., 248; Stoutenberg v. The Dunbar Box & Lumber Co., 13 W. Dig., 445; Appel v. The B., N. Y. & P. R. Co., 111 N. Y., 550; 20 N. Y. State Rep., 90; De Forest v. Jewett, 88 N. Y., 264.

•The court, in the last case cited, said: “We do not see how the defendant can be held liable in this case without abolishing the well established rule that the servant, by accepting the employment, assumes the risks and perils incident thereto so far as they are apparent and obvious.”

The judgment appealed from must, for these reasons, be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.  