
    John O’Neil, Respondent, v. Thomas H. Karr, Appellant.
    Third Department,
    January 8, 1906.
    Negligence — Employers’ Liability Act construed—service of notice necessary to recovery on statutory liability — in absence of notice, obvious risks, assumed — injury by blast.
    Whenever a recovery for the increased statutory liability of an i employer is sought under either sections 1 or 3 of the Employers’ Liability Act, the notice required by section 3 of said 'act is required to be served. When no such notice is served, the common-law rules obtain, and a plaintiff who continues in the defendant’s employ, with full knowledge of the dangers incident thereto, assumes such risks.
    Hence, when an employee has been injured by a blast, and it is shown that he had knowledge that the defendant was not accustomed to cover up the blast with logs or other means to prevent the flying of stones, and when the risk is open and obvious, and when he had sufficient warning of the blast and an opportunity to seek a place of safety, a verdict in his favor will be reversed in case he has not served the notice required by section 3 of the Employers’ Liability Act., . •
    Kellogg and Ohestbb, JJ., dissented, with opinion.
    Appeal by the defendant, Thomas H. Karr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 17th day of July, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 17th day of July, 1905, denying the defendant’s»motion for a new trial made upon the minutes.
    Defendant was taking stone from a quarry in the town of Brunswick in Rensselaer county. The quarry was situated directly in the woods, the timber having been cleared off to reach the same. The men cut the wood and the timber as they worked. On August 12, 1902, the woods and trees were only twelve or fifteen feet distant from where the blast was fired. Woods and trees surrounded the whole place on the north and south: The nearest building was half a mile away, and the nearest inhabited house was three-quarters of a mile distant. The quarry was, open and above ground, the work was all done on the surface, and all parts of the qiiarry were visible to the men working. At the south end of the quarry was the engine house. It was sixteen feet wide east and west, by twenty-two feet north and south. The north side, of the. engine house looked right, upon the-quarry. ■ At the east end of the north side of the engine house was an open door, through which a belt'ran, which connected the engine with a. crusher. Toward thei west -corner of the north side -was an entrance door leading into the engine house from the quarry. Both the engine door and the belt door were- six feet in height. North of the engine house, a distance of aboutfifty feet, was the crusher for breaking stone. North of and adjoining the crusher were the bins for holding the - crushed stone. Bight north of the bins was the open quarry where the blasting was' done. ' „
    The blasting was performed by the use of dynamite. It was done mostly between twelve and one o’clock at. noon and after * six o’clock at night. Prior to a blast a warning was given, and it was the custom of the men, after the warning, to seek protection either behind the trees in the woods, or under this "cruáher or in this engine house. The plaintiff was injured by being struck from-one of these blasts upon the 12th day of August, 1902. He was at work for the defendant as a teamster. He had been working around the quarry for three months. He knew that the blasts were not covered with logs, as is sometimes done, and he knew the'danger from falling missiles, as he had at all times paid heed to the warning and sought protection whenever a blast ivas to be fired.. Upon the day in question, after the warning, he sought refuge in the-engine house. He went in and shut the door and went toward the north end, A stone not much larger than your finger was thrown from the blast through the door through winch the belt was being operated, hit plaintiff in the jaw. and caused the injury -for which he has recovered in- the action. The trial court submitted to the jury the questions of defendant’s negligence and of plaintiff’s want of Contributory negligence, and of plaintiff’s assumption of the risk. The jury found for the plaintiff. From-the judgment entered upon that verdictand from an order denying defendant's motion for á new trial this appeal has been taken.
    
      Thomas S. Fagan, for the appellant.
    
      G. B. Wellington and Owen D. Connolly, for the respondent.
   Smith, J.:

That under the common law an employee assumes the obvious risks of an employment will hardly be questioned. This plaintiff had knowledge of the fact that these blasts were not covered. He knew the danger as he sought protection whenever warned that a blast was to be fired. A master at common • law owes no duty to his employee to use. the most approved methods. An employee., with full knowledge of the methods used, may accept or decline the service, and if the service be accepted he has no legal complaint to make of his employer for injury caused by the neglect to use such improved methods.

The learned trial judge recognizing this rule of common law allowed this case to go to- the jury and has denied defendant’s motion for a new trial upon the ground that this action is no longer controlled by the common law. He has held that by chapter 600 of the Laws of 1902 in an action brought either under the statute or at common law a servant is not deemed to have assumed the obvious risks of his employment unless the master has used due care to provide safe appliances for his use and that in all cases the question of whether the servant has assumed the risk of the employment is a question of fact for the jury and cannot be determined as matter of law by the court. This was the interpretation of the statute given by the Appellate Division, first department, in the case of Ward v. Manhattan R. Co. (95 App. Div. 437). In that case it was in effect said that if an employee would take advantage of the enlarged liability prescribed by section 1 of the act he must serve the notice prescribed by section 2 thereof; that the benefit of the enlarged liability created by section 3 of the act, however,, was given to him whether or not he had served the notice required by section 2. This was purely dictum, however, as it was not necessary to the decision there made.

By section 1 of that act it is provided that where personal injury is caused to an employee who is himself in the exercise of due care ■and diligence at the time (1) by reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owjng to the 'negligence of the émployer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery -were in proper condition ; (2) by reason of the negligepce of any superintendent tif the employer, the employee, or in case of death, his executor or administrator should have a right of action. In the 2d section it is provided that no action for recovery of compensation for injury or death under this aet shall be maintained, unless notice of the time, place- and cause of the injury is given to the employer within 12Ó days and the action is commenced within one year after the occurrence of the accident causing the injury or death. Provision is then made for the service of the notipe. In section 3 it is provided than an employee, by entering upon or continuing in the service of the employe^, shall be presumed to have assented to the necessary risks of the occupation, and no others. Necessary risks are then defined'as including those risks, and. those only, inherent in the nature of the business “ which remain after the employer has exercised due care in providing for the safety of his employees * * *.» jq js tpen provided fhat in an action maintained for the recovery of damages for personal injuries if an employee continues in the service of the employer after discovery of the danger the employee shall not as matter of law be deemed to have assented to and assumed the risk, but that such question shall be for the jury to determine, and it is further provided that an employee or his legal representative “shall not be entitled under this act” to any right or remedy against the employer where such employee knew of the defect and failed to,give notice thereof unless the employer or his superintendent had such knowledge pi/ior to the injuries to' the employee. By section "4 it is provided that an employer who shall have contributed to an insurance fund to indemnify his employees for personal injuries may mitigate damages in proportion to his contribution. By- section 5 it is provided that all existing rights of action for negligence or to recover damages for injuries resulting in death are continued notwithstanding the failure to give such notice.

It is' true that section 3 has in it some general expressions which might at first seem to make it applicable to all actions whether. at common law or under this act. But no single section of an act can be separated from the rest and alone construed. ■ This act must be read as a whole. In section 2 it is provided: “ No action for recovery of compensation for injury or death under this act shall be. maintained unless notice of the time, place and cause of the injury is given to the employer- * * This provision of the statute does not require notice to be given in an action for injury or death under the 1st section of the act but under the act itself, which inclxides all the sections, and the conclusion would seem to me to be irresistible that by force of this 'danse one who would seek any of the benefits of this act must give the notice required by the act. Whether the recovery is sought for an increased liability under section 1 or section 3, the action is in either case brought under the act and by the terms of section 2 quoted the notice therein specified is required to be served. That this construction is the true one would seem to be indicated by the provision in section 3 itself, which provides that an employee or his legal representative shall not be entitled “ under this act” to any right of compensation or remedy against the employer where such employee knew of the defect or negligence and failed to give notice thereof unless the employer or his superintendent had equal knowledge thereof prior to the injuries to the employee. If this act were separable this provision should read that an employee or his legal representative shall not be entitled u/nder this séction of this act to any right of compensation, etc. The reading of the section itself thus indicates that the act is not separable but is entire and was so regarded by 'the. Legislature when the act was passed, .and its benefits are given to those who comply with its condition of notice given.

Again, this act is in derogation of the common law. _ The liability of the master is increased. In Gmaehle v. Rosenberg (178 N. Y. 152) Judge Cullen, in discussing this act, says: “The Legislature deeming that by the act it was about to extend the liabilities of masters to their servants (to what extent they effectuated this pur.póse it is unnecessary now to determine) thought it wise ’to safeguard the new liabilities by requiring that notice should be given the master of the accident for which it was sought to recover compensation. But it was only the new or extended liability that it was intended to subject to such safeguard. This intent is clearly expressed when the Legislature limited the requirement for notice to actions for injuries or death ‘under this act.’ ” In the case cited the question decided was whether the common-law- action of npgligence survived the statute, The quotation, however, calls sharp attention to the nature.óf the statute as one increasing the liability of the employer-, safeguarding the same by the notice required by section 2. An increased liability without the giving of such notice should not he found in.-doubtful phrases, as authority is not needed to the proposition that a statute increasing liability in derogation of the common law must receive a. strict construction. . -

Wé do -not agree, therefore, with the construction of the statute found in the Ward case above cited. As this plaintiff continued in' defendant’s employ with fnl-1 knowledge of the 'dangers incident. thereto, he must be-held to have assumed the risks. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

All, concurred,, except Kellogg,. J., dissenting in opinion*, in which Ohesteb,. J., concurred: .

Kellogg, J. (dissenting):

The master owes to his servant the exercise of reasonable care and prudence'in providing for him a safe place in which to work arid reasonably fit. and safe machinery and ápjiiiances; ■ - (Harley v. B. C. M. Co., 142 N. Y. 31 ; Sisco v. L. & H. R. R. Co., 145 id. 296.) Whether he was negligent in this case depended upon, the manner in which . he conducted his work and how such work is usually conducted by quarrynlen, the dangers apparent and reasonably to he apprehended, and' all the various circumstances of the case ; his negligence was, therefore, a proper question to submit to the jury.

■ - . .-. ■ , . The question of assumption of risk is -not án element of the plain? tiff’s cause of action, -but is an affirmative defense, to be presented •and established as such. (Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459.) Formerly," whether the defendant established that defense was to he ■ determined - by_ the court or. jury, as required by the ordinary rules of practice. Many times it was established, or appeared so clearly that it was determined by the court; other times, Where different inferences might be drawn from' the facts, appearing ,as to the servant’s knowledge of the defect* his intelligence, Itis appreciation of the danger, and the. circumstances of the situation, it was left to the jury' to determine. The question always was, the same as now, did the servant know the defect, appreciate the danger, and then by accepting or continuing the employment _ thereby assume the risk % If so, the defense, was established. The want of harmony in the decisions upon this subject arose from different views as to where the burden of proof lay, but in 1902 the Dowd case decided .that the assumption of risk was an affirmative defense and no part of the plaintiff’s case; this statute, passed the same year, attempted to make a uniform practice upon this subject, and by section 3 directed that in all future cases this defense should be passed upon by the jury. It provides that “ in all cases arising after this act takes effect,” and “ for personal injuries to an employee received after this act takes effect,” where the employee knew the defect, the question whether he understood and assumed the risk should be determined in the first instance by the jury .and not by the court. Section 2 of the act requires a notice in _an action to recover “under this act,” and in Gmaehle v. Rosenberg (178 N. Y. 147) the Court of Appeals , has held that the act creates a new cause of action, making the employer responsible for the carelessness of the superintendent, or oüe acting as such, and perhaps for a defect of ways, etc., and that no notice is required except to recover for those new causes of action. There is no claim that a notice must be served to'affect or operate upon a mere affirmative defense. Every word in the statute should be given its reasonable: and fair interpretation, and should not be construed as meaningless, or be given a forced construction unless necessary to carry out the intent of the act. The title of the act is : “ An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees.” We would infer that the act had two objects: First, to extend, and, second, to regulate, and so we assume that the regulation was to refer to other matters than the liability extended. Otherwise the use of the word “ regulate ” would be surplusage, because the act creating.the ne.w liability would naturally define its, terms and conditions. By giving the words used their ordinary and reasonable meaning, we see the liability is extended by creating one and perhaps two new causes of action and i"s regulated in all future cases by providing that where the. servant knew of the defect the auéstion whether he understood and assumed the risk was to be determined by the jury and not by the court. Section 3, iii substance, provides that in all futufe cases, between master and servant, .the necessary risks of the employment, where the master is not negligent, are assumed by the servant as matter of law; but where the master is negligent and the servant knew of the negligence, that the question whether he understood and assumed the risk shall be determined as a matter of fact and not of law. 'It does not relate . at all to the cause of action, and does not add any new liability so far as this case is concerned. It relates solely to the remedy, the question of practice by the court on the trial, and prescribes the manner in which the defense of the defendant upon that subject shall be decided. The language of section 3 is in terms extended to all cases thereafter arising, except the last sentence- which provides that the employee “shall not be entitled under this act to. any right of compensation or remedy against the employer ” ,if he knew of the defect and failed to communicate it. to the master or superintendent when the defect was unknown to them. That provision does not qualify or destroy the previous general language of the section; it simply prohibits a servant who has secreted such a defect from.gaining any benefits under the act. By the use of the disjunctive “ or ” in the sentence it appears that, such a servant may lose either of the two benefits given by the statute,, which are (1) the right of action given by sections 1 and 2, or (2) the rights pertaining to the remedy given by section 3 itself. The act is intended to benefit the employee; but this section provides that if he secretes the defect from the master or superintendent he shall gain no benefit whatever under the act. The language used is appropriate, and should have just the effect intended, but does not qualify or destroy what precedes it. In my judgment section 3 of the act applies to all actions of negligence brought by the servant against the master, and this case was, therefore, properly submitted to the. jury. The action against an employer for his personal negligence, is at common law and not under the act. The new cause of action is- for the negligence of a person acting as superintendent. .If the construction here contended for is not right, then where. the employer is personally guilty section 3 does not apply; where he is blameless, it does apply. He may have a nonsuit in case he is personally at fault; otherwise not. This result does not seem reasonable. A construction should be adopted which gives the section a uniform application and simplifies the practice.

While the effect of this section was not necessarily decided in Ward v. Manhattan R. Co. (95 App. Div. 437), it was properly and deliberately passed upon iii that case, and has an important bearing here. '

It is unnecessary to consider whether the verdict is sustained by the evidence or not, as the question now being determined is the propriety of the submission of the case to the jury.

Chester, J., concurred.

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