
    (71 Hun, 127.)
    COWHILL v. ROBERTS.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Master and Servant—Death op Employe—Assumption op Ris-".
    Where an experienced workman, who had been engaged for two months in the construction of an elevated railroad, undertook, when the structure ivas icy, to climb to the top by means of the network of the columns, as he had frequently done before, and as the workmen usually climbed to the top thereof, and, while thus attempting to reach the top, fell, and was killed, his employer is not liable for his death because of the absence of a ladder for the use of the workmen, or because of the use of a particular kind of brace which it is claimed caused deceased to fall, but which was the kind generally used on such structure, and was not defective.
    
      2. Same—Acts not Required by Employment.
    Where it appears that such employe’s work was on the ground, and he undertook to climb to the top of such structure for his own purposes before commencing work in the morning, his employer is not liable.
    Appeal from circuit court, Kings county.
    ■ Action by Ellen M. Cowhill, as administratrix of the estate of John W. Cowhill, deceased, against Perceval Roberts, for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment for defendant, and from an order denying her motion for a new trial, plaintiff appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Hector M. Hitchings, for appellant.
    Wingate & Cullen, (Geo. W. Wingate, of counsel,) for respondent.
   DYKMAN, J.

This is an appeal from a judgment and order denying a motion for a new trial. The action was for the recovery of damages resulting to the plaintiff by the death of her intestate, John W. Cowhill, deceased, which is claimed to have been caused by the negligence of the defendant. The deceased was in the employment of the defendant, who was engaged in the construction of an elevated railroad in Myrtle avenue, in the city of Brooklyn. The railroad was constructed by placing iron columns, 50 feet apart, on the curb line of the street, and the columns were connected by transverse girders, upon which were placed four longitudinal girders, which supported the track. These girders were hoisted into place by a moving derrick, called a “traveler,” which was placed upon the top of the structure, and was moved along as the work progressed. Upon the sides of the column were lattice work, and each girder had a broad flange at its top and bottom. The girders at this point were five feet high. The deceased man had been working upon this road for the defendant for about two months. The work was of a dangerous character, and required active men. As there was to be a station at the point of the accident, one of the iron girders could not be put in until the traveler had passed, and its place was supplied by a temporary wooden girder, which was braced by wooden braces six by three inches, and eight to ten feet long, extending to the ends of the girder, where they were fastened into the flanges, and wedged by a wooden block. This was the method which had been pursued at another station on which the plaintiff had worked, and the bracing was the customary one, and was necessary. To go upon the structure, the workmen climbed up the lattice work of the columns, and then put one arm around the girder, and the other hand on top of it, and climbed up in that way. The woodwork had been up there for two or three days before the accident. The deceased was working upon the ground at this lime, and the workmen who worked on the ground kept their coats in a box on the sidewalk. The morning of the accident was a cold, frosty morning, and the structure was covered with ice. The de ceased was a little late, and climbed up one of the columns to leave his overcoat and lunch, and put on his overalls, 5 minutes before 7, the time at which he was required to be at his work.

It is claimed by the plaintiff's counsel that, when the deceased reached around the girder to catch hold of the flange, he struck it against the block which held one of the braces, from which his finger slipped, and that the defendant is responsible for negligence—First, in allowing the brace to be used; and, second, in net providing a ladder. The testimony is that the ladder had not been used upon this work; that the bracing was such as had been used on the work before, and was customary, and necessary to support the weight of the traveler. The witnesses on the part of the plaintiff testified that the wooden brace, which it is claimed was the cause of the accident, was usual and necessary in the progress of the construction of the road, that they had been up for several days, during which the deceased worked around them, and had the same opportunity of knowing of their existence as the other workmen. The brother of the deceased man testified that his brother had not commenced work on that morning previous to the accident; that he had his overcoat on, and that it was a cold, frosty morning; that there was ice on the work; and that, when water fell, it was frozen, and, being a few minutes late, he was going up with his overcoat on. Michael Gordon, a witness on the part of the plaintiff, testified as follows:

“Was with the rest of the gang,—they had a traveler,—putting up the columns and cross girders. The work was on the ground. He was one of the gang who worked ahead of the traveler on the ground, and, when a pillar or column was swung into position, the nearest man climbed up there, and adjusted.the cross girder. He was engaged at this time around the traveler. He was working on the ground. When he went up there, he went up for no other purpose than to leave his coat and lunch, and put on his overalls. That was before he reported for duty, five minutes before seven. We were required to go to work at seven o’clock.”

It may be remarked here, in passing, that the testimony shows that the deceased did not climb this column for any purpose of the defendant; that he had not commenced work on that day, but went up the column for his own purpose and convenience, to put his overcoat and lunch on the top of the structure, and put on his overalls; that the prosecution of the work in which he was engaged at that time did not require him to climb the column.

The failure to provide a ladder cannot be assigned for negligence in this action—First, because the deceased was not at that time required to ascend the structure; and, second, because the deceased had been climbing the structure by the lattice work on the columns as the other workmen did, and the risk of such climbing was entirely apparent, and was a hazard of his employment which he assumed and perfectly understood. The fact that there was no ladder was apparent to the deceased, not only before he climbed this column, but during his term of employment for some time previous. It is important to note that there was no imperfection in any of the appliances used; that nothing gave way; and it seems a fair deduction from the facts and circumstances that the fall of the deceased was caused by his failure to grasp the girder in his attempt to ascend the structure. “It has come to be settled in this state that, where a servant enters upon an employment which from its nature is necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him, and which are apparent to ordinary observation.” Stringham v. Hilton, 111 N. Y. 188, 18 N. E. Rep. 870. In Kennedy v. Railroad Cc., 33 Hun, 457, it was held that an elevated railroad was not liable for failure to provide a footwalk for watchmen on the structure, and that, if one was struck by a train through the engineer’s carelessness, the company was not liable. In that case the court said:

“The defendant was not bound to secure protection of the person employed against such risk of injuries as is incident to the employment itself. Where the nature of the servant’s employment required him to make use of the instruments as they had been located in that vicinity, and it was all clearly and evidently before his eyes, and within his comprehension, he must have understood that, in the discharge of his duties, he subjected himself to the risk of just such an accident as was encountered by him: and, as that was clearly indicated by the situation and the circumstances under which he was obliged to act, that was one of the risks incident to his employment.”

While this rule may not be applicable in all cases of casualties resulting from the use of complex machinery, it is applicable to this case, where the risk was as apparent to an ordinary workman as to an expert. In the case of Gibson v. Railroad Co., 63 N. Y. 449, it was said by the court:

“When the deceased entered the employment of the defendant, he assumed the usual risk and perils of the service, and also the risk and perils incident to the use of the machinery and property of the defendant, as it then was, so far as such risks were apparent. Accepting service with a knowledge of the character and position of the structure, from which the employe might be liable to receive injuries, he could not call upon the defendant to make alteration to secure greater safety, or, in case of injury from risks which were apparent, he could not call upon his employer for indemnity. * * * If the defects in the machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risk resulting from its use, unless the master, urging on the servant, contributes to the injury.”

“A servant who has accepted service with knowledge of the character and position of structures from which he may be liable to injury, in case of injury resulting therefrom cannot maintain an action against his employer for indemnity. He assumes apparent risk, and cannot call upon his employer to make alterations to secure greater safety.” De Forest v. Jewett, 88 N. Y. 264.

“The law also implies a contract on the part of the employe that he will assume the ordinary risks which are incident to the business in which he is employed. One of these risks is that structures or appliances may turn out to be defective, notwithstanding the exercise of due care by the employer to provide such as are safe and proper for the purpose for which they are designed. In this state the rule stated is well settled.” Devlin v. Smith, 25 Hun, 208, 89 N. Y. 476.

It may now be assumed- as settled that, in an action by a servant against a master to recover damages occasioned from defective appliances or machinery, the plaintiff must establish, first, that the machine or appliance was defective, or that the master had knowledge or notice, or ought to have known it, and that the servant did not know, and had not equal means of knowing with the master. None of these conditions have been established in this case. The usual and necessary method of erection clearly cannot be considered defective as a matter of law, in the absence of evidence that there was any other usual or even practical method of erection from which an accident like this might be avoided, or the risk of it diminished. It is shown the deceased had the same means of knowing of the existence of the braces, and the exact condition of the affairs, as the employer. In fact, he had better means of knowledge, as he could see on the morning of the accident that the structure was covered with ice, so as to make it dangerous to climb up the column, where there was no time or opportunity for the employer to become aware of such state of facts. The braces and the manner of their attachment had been in position for days, during which the deceased had been working, where they were so that he could have seen them. There is no foundation for the contention that the deceased should have been instructed in respect to their existence, as they were plainly visible to the eye. We have, then, the case of a man working on and around this structure for about two months, and who was shown to have been a first-class workman, entirely familiar with the method of erection, and accustomed to going up these columns; and to hold the defendant liable for injuries under such circumstances would be equivalent to making a master an insurer of the lives of his workmen. This view seems to be sufficient to show the absence of negligence on the part of the defendant, and the presence of carelessness on the part of the deceased. At the very least, it fails to make a case which, under the settled rule of law in this state, entitles the plaintiff to a recovery. The judgment and order appealed from should be affirmed, with costs. All concur.  