
    Florence M. Simpson, as Administratrix, etc., of John Simpson, Deceased, Appellant, v. Interborough Rapid Transit Company, Respondent.
    Second Department,
    November 23, 1910.
    Appeal from nonsuit —- presumption as to evidence — railroad — negligence death of lineman from high tension current — Labor Law1 — failure, to furnish proper “ways” — when ■ contributory negligence for jury. . .
    Where a-plaintiff is nonsuited at the close of his case,, he is entitled on appeal to-the most favorable construction which thé jury might properly have placed upon the evidence. ,
    The plaintiff’s intestate, employed as an electric wire man on an elevated railroad, while engaged in painting the structure after repairs had been made, and while disengaging himself from a safety belt attached to a girder, Came in contact with a .feed wire. Which conveyed a •high tension current: The wire, which was unprotected by any insulation at this point, was placed under a narrow walk beneath which the intestate was working in a very constrained, position, so that when he straightened up his forehead came in contact With ■ the naked wire.' On all' the evidence, held, that the j.ury were- entitled to find that there was a defeet.in the condition of the “ ways ” provided for the plaintiff within the -meaning of section 200 of the Labor Law.
    It is not-sufficient that the railroad at other points usód an insulated wire,,so that a reasonably safe place’was provided for other servants, for the duty of providing' a safe place extends to each and every servant employed;
    Where an action to recover for a death so- caused is brought under the Labor Law . ■ the court cannot determine the'assumption of risk or contributory negligence as a matter of law, as by virtue of section 202 of- the statute .these questions ■ must be-submitted to .a jury,' subject to the power of the court to set aside a verdict contrary to the evidence. ■
    JsNKs'and Burr, JJ., dissented.. ...
    Appeal by the plaintiff, Florence M.- Simpson,' as administratrix, etc., from a judgment of the Supreme Court in favor of the defend-" ant,, entered in the office of the clerk of. the county of Queens on ■ the 27th day of ¡November, 1909, upon the dismissal of the com plaint by direction of the court at the close" of plaintiff’s case on ■ a trial at the Queens County Trial Term.
    
      Rufus O. Gatlin, for the appellant.
    
      L. E. Quigg [Bayard E. Ames, John Montgomery and James L. QuaeJcenbush with him on the brief], for the respondent.
   Woodward, J.:

The complaint was dismissed on motion of the defendant at the close of plaintiff’s case, and under the well-established rule of this court she is entitled on appeal to the most favorable construction which the jury might properly have placed upon, the evidence, There appears to be no question here that the action was properly brought' under the provisions of chapter 600 of the Laws of 1902 (now a part of the Labor Law), which provides (Labor Law, § 200) that “ When personal in jury 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 owing to the negligence of the employer 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; * * * The employee, or in case the injury results in death, the executor or administrator of a deceased employee * * * shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.” This language is broad and comprehensive; “ways, works or machinery” is very inclusive, and the employer is made liable to an action as though the employee was not such employee, if there is “ any defect in the condition ” of such “ways, works or machinery.” . ".

The plaintiff’s intestate was employed by the defendant as a telephone lineman or electric wireman; he was engaged in doing some painting at a point where,he and one of the witnesses had made certain repairs in the' telephone wires maintained by the defendant upon its elevated railroad structure, when his forehead came in contact with a high-voltage feed wire for its third-rail system, of elevated railway operation, and he dropped .to the gronhd below, and soon afterward died, of his injuries. The evidence shows that the accident, occurred near One Hundred and Fifty-sixth street, on Third avenue, and in close proximity to one of the defendant’s stations. The defendant had a double-track line at this point, with the station between the tracks, and a passageway was constructed under the tracks to reach the station. -The tracks were placed- upon steel girders, resting upon steel pillars. These girders were about four feet high, with flanges at the top and bottom, about six inches wide, and the defendant had placed a telephone cable just beneath the top flange on the outside of the girder, and it was necessary, as the evidence shows, to make repairs. upon this wire from time to time.- Plaintiff’s intestate, as was the practice, was called upon to make repairs and to paint over the place, and in doing. this he stood upon the outside flange' and held himself in position by a safety belt and life line attached to the girder: On the day of the accident he had been thus located, and after completing the painting which he was engaged in, he handed his paint pail to - his companion, and started to unfasten his safety belt. In some manner the belt did not "unfasten readily, and the deceased placed his arm over the messenger wire (a supporting wire to hold the cable), and proceeded to unfasten the", same. "While thus employed he appears to have raised his head- and thrown it backward somewhat, and his forehead came in contact with the naked high-voltage feed wire, shocking him and producing a'fall, and the accident resulted in his death. It appears that this feed wire extends for a long distance, and' is carried at the stations under a narrow walk provided for the use of employees; that the wire, where it is in the open, is- covered with an insulating substance of some kind, but where it is placed under these walks it is left naked. In so far. as this relates to those employees who use the walk it is entirely safe, but the case "is differently presented when it comes. to those who are called upon - to make repairs upon the telephone wires. This high-voltage feed wire, at the • point of the accident, was under this walk, which extended out over the girder on which-the plainti£E”s intestate was at work, and which compelled him to do his work in a stooping position. This naked wire, as to the plaintiff’s intestate, was only a few inches from his head while he was at work, and when he straightened up for the purpose of getting himself free from the safety belt ■ fastening, he came into contact with it, and I am of the opinion that the jury might have found that there was a defect in the “ ways ” provided for the plaintiff’s intestate; or, in the phraseology of the common law, there was a question whether the master had performed the duty of providing a reasonably'safe place in which to perform the service. It is not enough that the master shall provide a reasonably safe place for some of his laborers; that is a duty which he owes to each and every individual in liis- employ, and section 202 of the Labor Law especially provides that An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this article takes effect, be considered 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, and has complied with the laws -affecting or regulating such business or occupation for the greater safety of such employees.” Obviously the business or occupation of a telephone lineman does not require the presence of a high-voltage feed wire for an elevated railroad, nor is it reasonable to expect that an employee will be asked to work in the immediate presence of an exposed wire of this character. There is nothing in the evidence in this case which tends to show that it is not entirely practicable, to protect these high-voltage wires with an insulating substance; the evidence discloses that this is done where such wires are exposed, and a jury might very properly find that failure to thus cover them at the point where the intestate was called upon to perform lfis work, was a failure to discharge the duty of providing proper ways” for him. . Indeed, it is practically conceded by my learned associates who desire the affirmance of this judgment that there was a question for the jury in respect to the defendant’s negligence, but they urge that plaintiff’s intestate was guilty of contributory negligence as matter of law, in that he. knew of the presence of this high-voltage wire, and that he knew the danger to which he was exposed.

If this were strictly á common-law action for negligence, we might perhaps hold , that these circumstances precluded a, recovery, but section 202 of the Labor Law (former Employers’. Liability Act) provides that “ In an action maintained" for the recovery of damages, for personal-injuries, "'*•'* * the fact that'the employee continued in the ser vice, of the employer in the same place and course of employment after the discovery by. such employee, or after he had been informed of, the" danger of personal injury therefrom, shall .not, as a matter of law, be considered as an assent by such employee to the existence or Continuance -of such - risks of personal injury therefrom, or as negligence contributing to such injury. The question whether tlie employee understood and assumed the risk of such-injury, or was guilty "of contributory negligence, by his continuance in the same place and course of. employment with knowledge of "the risk of injury, shall be one of fact, "subject to" the - usual- powers of .the court in a proper case-to set aside a verdict rendered contrary to the evidence.” We" are riot to determine 'the question of assumption of" risks or contributory negligence as matter of. law in, this class of actions. The facts and circumstances must be submitted to the jury, and if the evidence is not such as to warrant file. verdict, .the trial court, or this-court'on appeal, may "set aside the verdict.' That is the ¿xtent of the.power'of the court upon this branch of the case as defined by the Employers’ Liability Act. If the defendant’s negligence is shown by the evidence, the case must gó to the jury on the questions of the-assumption of risks and contributory négligence, arid the court may.set the verdict aside if it is contrary to the evidence Or the law, as in other cases, and as it'is practically admitted that there was "a question for "the jury on defendant’s negligence, it follows that it was error for the learned court at Trial Term to dismiss- the complaint. ■ .

.The judgment appealed from should be reversed and a new trial granted, Costs to abide the event.

'Thomas and Cárr, JJ., concurred; Jenks and Burr, JJ., dissented.

Judgment reversed and new trial-granted, costs to-abide the event. • 
      
       See Consol. Laws, chap. 81 (Laws of 1909 chap. 30), § 200 et seg. Since amd. by Laws of 1910, chap. 352.— [Rep.
     