
    Mary Garety, as Administratrix, etc., of Francis Garety, Deceased, Respondent, v. David H. King, Jr., Appellant.
    
      Negligence — an employee, directed to sweep off a roof, falling through a skylight covered with snow — he takes the risk of known dangers.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, it appeared that the defendant had erected a temporary roof over a building which he was-constructing, and had placed in the middle of the roof, and a few inches above its level, around which there was no guard rail or barrier, an ordinary window sash which served as a skylight. Upon the day following a heavy snow fall, the deceased, who was familiar with the building and had been employed about it. for four months with others, was sent upon the roof to shovel off the snow, which entirely concealed the skylight. Just before dinner time a man in the defendant’s employ hallooed .to the men shoveling snow to look out as there was a skylight there. After dinner the deceased returned to the roof and fell through the skylight and was killed. No one saw him fall. The trial justice first charged the jury that if the deceased did know of the existence of' the window and nevertheless undertook to work upon the roof, he assumed the risk of the apparent danger, and instructed the jury that it was for them to say whether the deceased did know of the existence of that peril. Subsequently he retracted this instruction, charging the jury that' it'was an erroneous statement of the law; and he then said that even if the deceased did know of the existence of the skylight, but exercised due care to avoid the-accident, the plaintiff might recover.
    
      Edd, that the first statement of the charge was correct, and that the second was erroneous, as it amounted to saying that if the decedent were free from negligence he did not assume the risk of working at a dangerous place known to-him to be dangerous;
    That the questions of negligence on the part of the defendant in failing to furnish a safe place in which the men might work, who were sent up to remove snow from the temporary roof, and of contributory negligence as to whether the' deceased came to his death by his own negligence, were proper questions to be submitted to the jury.
    Appeal by the defendant, David H. King, Jr., from a judgment of the Court of Common Pleas -for -the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day of December, 1895, upon the verdict of' a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 19th day of' December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Edward B. Thomas and Julien T. Davis, for the appellant.
    
      Nelson Zabriskie, for the respondent.
   Ingraham, J.;

he action is brought to recover for the damage sustained by the death of the plaintiff’s intestate. Evidence was offered by the plaintiff tending to show that the deceased was killed on the 18th day of February, 1893, by falling from the temporary roof of the building which the defendant was erecting, through a skylight in the roof. The plaintiff produced no witness who saw the accident; It appeared that the defendant had erected a temporary roof made of rough boards over the building that he was constructing; and in the middle of that roof, for the purpose of lighting the interior of the building, was placed an ordinary window sash for a skylight. On the 17th and 18th of February, 1893, there had been a heavy fall of snow, and on the morning of the eighteenth, some time before twelve o’clock, the plaintiff’s intestate with other men were sent upon the roof to shovel off the snow that had fallen there. The men continued at that work until dinner time. Just before dinner one of the men in the defendant’s employ hallooed to the men shoveling snow to look out, that there was a skylight there; the deceased was present with the witness when the warning was given, and the witness said that after that warning he saw the skylight covered with snow. Another man, who was also working on the roof before dinner, testified that he heard no such warning, but he worked' there only a short time, having been called to other work. After dinner it seems that; the plaintiff’s intestate returned to the roof to work with at least one other man, and subsequently fell through this skylight and was killed. It-was disputed , whether at the time of • the accident the skylight had been uncovered, but it was shown- that the roof had been only partly Uncovered; the men working-towards the skylight pushing the snow in front of them with pushers. No one that testified saw the plaintiff’s intestate fall'; and there is no evidence to show why it was that he walked into or fell through, the show on the skylight away from the place at which he was working. The plaintiff’s intéstate had been working about this place for about four months; and tire interior of- the building depended largely upon the skylight for light.

I can see no principle by which this defendant, upon this evidence, can he held liable for this accident. The plaintiff’s intestate was sent up to this roof to shovel snow. He was directed - to work upon this - particular roof, and the condition of this roof, and the labor that he was required to do there, would seem to have been as well known to the plaintiff’s intestate as to the defendant or to his agent. The ordinary risks incident to that work were taken by the deceased when he accepted the employment to do the work. Working upon a temporary roof, or a scaffold of any kind, is more or less dangerous, and the risks incident to the employment, or the position in which the. work is to be done, are taken by the person doing the work, and as long as the employer sees to it that no secret defects, render the position or appliances used for the work more dangerous, than ordinary observation would indicate, and notifies his employee of any peculiar dangers incident to the work, but not visible or apparent to a person of ordinary intelligence, he has performed his duty, and if an accident happens, or the employee is injured, the employer is not liable. The direction to shovel the snow off this roof was accepted by the deceased, and thereby he took thé risk of the dangers incident to that work, and while engaged in doing the work, in some unexplained way, he fell into this skylight. Just how or why he fell through the skylight is, therefore, not apparent, but it is quite evident that if he had proceeded in the ordinary way in the execution- of his work, simply shoveling or pushing the snow away in front of him, he would have discovered the skylight before reaching it, and have thus avoided it. .

He was sent to clean the roof from snow. The very nature of this employment was notice to the deceased that all defects in the roof were covered up, and that to be safe he must proceed by uncovering the roof before' walking upon it. The roof itself was a temporary one, not- permanent, where a person sent to work upon it could assume that it was of such a character that all parts of it would be safe. The risks that a man assumed in working upon such a roof covered with snow, and the degree of care that he was bound to exercise in order to avoid injury, must be materially different from those in the case of a permanent structure which one would have no reason to assume was dangerous.

In the case of Crown v. Orr (140 N. Y. 452) the court say: “ The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment, or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him.” (See, also, Kennedy v. M. R. Co., 145 N. Y. 294.) Applying this principle to this case, it seems to me quite clear that the risk of falling off or through this temporary roof was a risk “ incident to the employment, or arising in the course of the business of which he (the deceased) has knowledge or the means' of knowledge.”

A master is not liable because an injury occurs in consequence of the nature of the work or the position in which an employee must place himself to do it. This roof was not built for the purpose of catching snow, nor for the purpose of providing a promenade for the workmen employed on the building or others, but for the purpose of protecting the building, and this window sash was put in the roof to furnish light to the interior of the building during its construction. The roof had been upon the building for about a month, and the . deceased had been employed there about four months. The condition of the roof was apparent; the dangers incident to the employment, by working. upon it, were apparent; the fact that the snow covered all inequalities or openings in the roof was apparent; the temporary structure of the roof was apparent; and one accepting such an employment upon such a place to do such work necessarily assumed the risk of either falling from or through the roof while so engaged.

I do not think that there was any evidence from which an inference could be drawn that the deceased' was free from con- ' tributory negligence. As before stated, it is a little difficult to see how he managed to go upon this skylight and fall through. _ He was engaged in pushing or shoveling the snow. His ordinary position would be to stand in the place from which the snow had been cleared, and throw or push the snow away from in front of him. Ho' one saw him fall,. and no explanation was given of his being upon the skylight. The implement with which he was working was found with the handle broken, but it did not appear whether it was broken before or after his fall, or in consequence of the fall. There is absolutely nothing to show that the deceased exercised any care in doing the work, or that his going upon the skylight and falling through was not the result of his own negligence or carelessness.

I think, upon both grounds, first, that there is no evidence to show that the defendant neglected any duty which he owed the deceased, and, second, that there is no evidence to show that the deceased was free from contributory negligence, that the complaint should have been dismissed.

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

Patterson, J. (concurring):

I concur in the conclusion that this judgment must be reversed, but not for the reasons stated in the opinion of Mr. Justice Ingraham. There was sufficient to go to the jury on the subject of negligence of the defendant in failing to furnish a safe place for men to work who were sent up to remove snow from the temporary roof, and that was the specification of the negligence attributed to the defendant. The roof was put up over a hallway. It was erected in December, at a time of the year and in a season when heavy snow storms were to be expected. It was very slight, made of boards covered with a coat of pitch. A flat skylight, consisting of a frame with thin plates of ordinary window glass, was inserted in the roof to afford light to stone masons in the hall below. Ho guard rail or barrier was put around that skylight, and it was left entirely unprotected. Its upper surface was but a few inches above the level of the roof, and under a heavy fall of snow lying evenly on the roof the skylight might (and did) become entirely concealed. As an independent issue in the case, these facts were sufficient to show negligence; the time of year, the necessity for removing snow when it accumulated on the frail. structure, the absence of any protection or of anything to give notice to- those on the roof of the danger they would encounter there, were -enough to show that the defendant had not discharged his duty in making reasonably safe a place at which it would become, in all probability, necessary for his employees to Work. There was enough also in the" circumstances shown to keep the case before the jury on the question of contributory negligence. No one saw the plaintiffs intestate fall through the skylight, but there was evidence to show that when' he fell, a witness (Kane) was working within a few feet of him, but-with his face averted, and that Garety was shoveling- snow. It was for the jury to say on all the proof whether the plaintiffs intestate was free from- contributory negligence, and there is no error in the' record calling for a reversal of the judgment on either- the issue of negligence or "of contributory negligence, and the damages, are not' excessive.

Btit there was a fatal error in the charge of the learned judge to the jury on another and vital question in the case. The defendant contended that the plaintiffs intestate assumed, as incident to his employment, the risk of falling through this skylight oi: off the roof-when he went-up to remove snow. The rule of law that a servant assumes the apparent and obvious risks of his employment,- as well as those he may ascertain by ordinary observation, is too well settled and understood to require the citation of authorities to. support it. It was a crucial- question of fact whether, in this case, the existence' of the skylight and the danger of going upon the roof were known to, or might have been known to, the plaintiffs intestate, and there' was conflicting evidence upon that subject on which the jury might have found either way.. The point was raised very clearly and sharply by the - defendant’s counsel, and the learned judge in his main charge instructed the jury “ that if the deceased did know of the existence of that window, and nevertheless undertook to work there,, he assumed the risk of the apparent danger,” and “ it is for you, therefore, to say whether the decedent did know of the existence of that peril.” That instruction was correct. If Garety knew of the existence of the skylight and of the peril referred to, he assumed the risk of going to Work upon that roof. But at a subsequent stage of the trial the learned judge expressly retracted that proper instruction, and specifically charged the jury that it' was an erroneous statement of the law; and that even if the decedent did know of the existence of the skylight, but exercised due care to avoid accident, the plaintiff might recover. That instruction was tantamount to saying that if the decedent were free from negligence he did not assume the risk of working at a dangerous place, known to him to be dangerous, and it put the subject definitely before the jury in such a way as to authorize them to ignore altogether (if they found on the other issues in favor of the plaintiff) the question of the assumption' by the decedent of the risks attendant upon his working in a known place of danger. The learned judge virtually eliminated from the case the entire question of the assumption of the risk and made that issue identical with the one relating to contributory negligence, and thus inadvertently the jury were misled on that subject, and that it must have been influential with them sufficiently appears in the record.

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

Van Brunt, P. J., and O’Brien, J., concurred in the opinion of Patterson, J.; Williams, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  