
    William Wynkoop, Respondent, v. The Ludlow Valve Manufacturing Company, Appellant.
    Third Department,
    May 2, 1906.
    Negligence — Employers’ Liability Act—what risk employee assumes — erroneous charge.
    Under the Employers’ Liability Act the only risks that an employee is presumed to have assented to are necessary risks as defined by the statute.
    Hence, when a workman had his hand crushed because he stumbled and to save himself from falling involuntarily placed his hand upon the unguarded track of a traveling crane, with the condition and operation of which he was perfectly familiar, it is error to charge in an action to recover damages for the injury, that the.-r'isks asáumed by the plaintiff were only those inherent in the nature of the business after the master had' exercised due care and complied with the laws effecting greater safety of employees..
    Such charge in effect states that as a matter of law the plaintiff did^not assume the risk aforesaid.
    Smith, J., dissented.
    Appeal- .by the defendant, The Ludlow Valve Manufacturing Company, from a judgment of -the Supreme Court in ;£ayor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the l'2th'day of October, 1905, upon the verdict of'a jury for $2,00.0, and also from an order entered in said clerk’s office on the 2d day'of Hovember, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    This is an action for negligence under the Employers’ Liability Act (Laws of 1902, .chap. 600). Defendant operates in the city of-Troy a machine shop about one hundred and fifty feet long and one hundred feet wide. A gallery-twenty-five or thirty feet in width extends around the interior of the building except one end thereof and about eighteen feet from the floor. In the gallery at the time of the accident there were different kinds of machinery at which about thirty men and boys, including, the plaintiff, were employed.. Through the center of the building, from one end to the'other, moved a large "crane - operated by electricity, and Used for carrying material and delivering it from one place to-another on the floor beneath. This crane reached across the building between the interior sides of the gallery. ■ It moved on wheels, two on each side, ■the wheels on each side being ten or fifteen feet apart. The wheels on either side of the-crane ran on; tracks erected along the interior edges of, the gallery on each side of the building.- The tracks lay on large timbers on the edges of the gallery and two and oneffialf or three feet above the gallery floor. '
    • Qn December 31, 1903, plaintiff was proceeding to drill- some valves with a drill press iii the gallery. In the performance of this work it. was necessary-.to use wooden boxes with which to hold' the valves in position-while being drilled. Hear .at hand, wás -a la-the about three feet from the track on which the crane moved backward and forward. In this space between the lathe and the track, and on the gallery floor, were the boxes-in question, of different sizes. Plaintiff, went into this space in search of a box about, a foot square, which would fit the valve he was about to drill. He tried one after another in an effort to find one of proper size. In his effort to find a suitable one he proceeded for a distance of about twelve feet along the passageway between the lathe and the track; 'picking up one box after another and not finding any which would fit the valve he carried in his hand, throwing down the boxes and trying others. In this way he proceeded to the end of the passage-? way, and was returning engaged in the same search for a suitable box. After picking up about 100 boxes without finding one which was suitable, plaintiff tripped or stumbled over one of the boxes, and' to save himself from falling, involuntarily threw out his left hand .upon the adjoining track just as the crane was passing, and the wheel ran over and crushed his hand.-
    
      J. Murray Downs, for the appellant.
    
      J. W. Atkinson, for the respondent.
   Cochrane, J.:

The theory of the plaintiff is that the 'defendant was negligent in not properly guarding, the tracks on which the crane moved. Plaintiff had been employed in this shop for seven months, and was fully conversant with the operations of the crane and the manner and purpose of its use and with the conditions which there existed. The learned trial justice, at the request of plaintiff’s counsel, charged the jury that “ the risks which the plaintiff assumed were those risks, and those only, inherent in the nature of the business of the defendant which remained after the defendant had exercised due care in providing for its employees, and had complied with the laws affecting or regulating the business for the greater safety of defendant’s employees.” This was error. The risks referred "to in the foregoing proposition are those which are described in section 3 of the Employers’ Liability Act (Laws -of 1902, chap. 600) as necessary risks,” and the same section of the statute declares that those are the only risks which' the employee is “ presumed to have assented to.” But the court told the jury, as a matter of law, that those were the only risks which the plaintiff assumed, thereby taking from the jury the question o.f the assumption by the plaintiff of all risks except those specified in the proposition which was charged. Ho where else in charging-the jury did the leárned-. trial. justice explain to them or make any allusion to the question of the assumption of. risk by the plain tiff except, to state -to- them the defendant’s claim in reference thereto. The effect of -this charge was practically .to eliminate from the case the^very important question of the assumption of the risk by the plaintiff in conjunction with the negligence of the defendant. Whatever danger existed was apparent and obvious to the plaintiff. He had worked there for seven months. He- knew as much about the situation and dangers arising therefrom as did the defendant. ■ Assuming, without deciding, that the defendant was negligent in not properly guarding the tracks on which the crane was propelled, there was nevertheless the important question whether the- plaintiff,, -with full knowledge of the situation, had not assumed the risk of the accident which befell him, and it is difficult to, see .how any jury with .-a full, and correct, understanding of the law could draw any-other inference-than that the plaintiff assumed such risk.- But. this question under the .charge of thé court was not passed on by the jury. In fact the court -in effect told the jury as'a matter of law that the plaintiff assumed no such risk. ,

The judgment' and order must he reversed and a new trial" granted, with costs to the appellant to abide the event.

All concurred, except Smith, J., dissenting..

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