
    John Knezevich, Appellant, v. Bush Terminal Company, Respondent.
    Second Department,
    June 12, 1908.
    Master and servant — Employers’ Liability Act — injury on runway — assumption of risk — contributory negligence — appeal from nonsuit.
    Where, in an action under the Employers’ Liability Act, the plaintiffs evidence shows that a runway was defective,'and that while wheeling a heavy load he stepped into a depression, slipped on an imbedded nail, fell and was injured, the questions of. assumption of risk and of contributory negligence are for the jury even though the runway were sufficiently lighted, and it is error to dismiss the complaint.
    On appeal from a nonsuit at'the close of the plaintifi’s case he has a right to the most favorable view of the evidence that the jury could have taken had the case been submitted.
    Appeal by the plaintiff, John Knezevieh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of December, 1907, upon the dismissal of the complaint by direction of the court at the close of the' plaintiff’s case upon a trial at? the Kings County Trial Term-. '
    
      
      John H. Regan [Samuel I. Frankenstein with him on the brief]; for the appellant.
    
      Carlisle J. Gleason [Abram I. Elkus with him on the brief], for the respondent.
   Woodward, J.:

The complaint was dismissed at the close of plaintiff’s evidence, and under well-established rules the latter, on appeal, has a right to have the most favorable view of the evidence which a jury might have found if the case had been submitted to their consideration. Tried by this test, we are of opinion, that this judgment must be reversed. The action was brought under the Employers’ Liability Act, alleging negligence on the part of a superintendent in not providing suitable appliances or ways. The immediate cause of the accident; according to the plaintiff’s evidence, was a depression in a runway used in removing copper from a cellar to a platform some twenty inches above the cellar floor. This runway appears to have been constructed of planks one and one-lialf inches in thickness, one laid above the other, and the 'two fastened together, giving a thickness of three inches. It was five or six feet wide, and twelve to sixteen feet in length, and at the upper end of- the runway the constant use had worn a depression, which at the lowest point appears to have passed through the upper plank. This depression seems to have been about twelve or fifteen inches in diameter, saucer-shaped, as it is described by some of the witnesses, and near the deepest point a wire nail, said to be as ■ thick as a pencil, was pounded down even with the wood, leaving a shining, smooth spot in this basin. It is claimed that the plaintiff, in coming out of the cellar with a load of copper on an ordinary hand truck, exerting himself up to his capacity, stepped into this depression, his foot slipped on the imbedded nail and he fell, the truck coming down upon him, inflicting serious injuries. At the close of plaintiff’s case the court granted a motion for a nonsuit upon the ground that the plaintiff had been guilty of contributory negligence or had accepted the obvious risk, by reason of the fact that the runway wus sufficiently lighted so that the plaintiff might have seen the defect if he had been in the exercise of reasonable care. The plaintiff appeals from the judgment.

We are of the opinion that, the court erred in dismissing the complaint. Under the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600, § 1), where the injury results from 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 ór remedied.owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition; * * * the employee * * *. shall have the-same right of compensation and remedies agkinst the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.” Arid it is further provided (§ 3) that in actions under this statute the “ fact that the employee continued in the service 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 the 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.” In the case at bar the plaintiff wás-qmt to work upon this defective runway and was passing over it for the fourth time when the accident , occurred. The evidence showed that he was hauling a hand truck,, laden with copper, some 600 or 800 pounds in weight; that as he approached the runway an assistant came up behind apd pushed the load, it being necessary to overcome the grade to get' under rapid motion, and when near the top of the runway this accident occurred by reason of the plaintiff stepping in this depression. We are unable to understand, under the provisions of the statute, how this case could be disposed of as a matter of law. The power is reserved to the court to set the verdict aside, but it would seem to be the purpose of the Legislature' to permit the jury to take into consideration all of the' facts and circumstances, and to say whether these were such as to entitle the plaintiff to recover,- leaving it for the court to set the verdict aside if the evidence did not justify the verdict. In this cáse, however, if we regard it merely as an action at common law, there was a question for the jury. This runway was an appliance ; it was the duty of the master to’ furnish a reasonably safe appliance, and it might be fairly questioned whether this defect was so obvious, under the circumstances disclosed by the evidence, as to warrant the court in holding that the master had performed, his duty,.Or that the plaintiff had accepted the risks, or was guilty of negligence contributing to the accident. The evidence was that the copper was taken from a dark cellar, dimly lighted; that the light upon this runway came from an open hatchway, the light growing clear as the "top of the runway was approached, but it is a well-known fact that under such conditions the eyes are often not able to adjust themselves readily to changing degrees of light, and it was also in evidence that the day Was dark and that the place Was generally in the shadow, and this plaintiff, an ordinary workingman, might, in the exercise of reasonable care, have passed over this place three or four times without observing that it was calculated to expose him to danger. However this may be,.it is quite clear that the plaintiff in this action, under the Employers’ -Liability Act, had a right to go to the jury on the questions of acceptance of the risk and of contributory negligence, and it was error to dismiss the complaint. (Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416.)

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

J enks, G-aynoe, Rich- and Miller, J J., concurred.

Judgment reversed, and new trial granted, costs to abide the event.  