
    Antonio Bria, Respondent, v. Westinghouse, Church, Kerr & Company, Appellant.
    Second Department,
    June 4, 1909.
    Master and servant — assumption of risk — safe place to work— charge.
    Where in an action by a servant to recover for personal injuries alleged to have been caused by the master’s negligence, it appears that the sei'vant was injured while carrying stones from a pile to a crtisher; that the stones were deposited on top of the pile by a derrick; thát as plaintiff, who had been carrying stone for about a week; was working at the foot of the pile, a large stone rolled down the pile and hit him, and that thé falling of stones in this manner was of occasional occurrence, it is error for the court to charge as to the assumption Of risks incident to the employment that “ the plaintiff * * * only assumed such risks that might,be incident to the nature of his employment after the defendant had fulfilled the duty imposed upon it by law to furnish him with a reasonably safe place in which to work,” and a judgment in plaintiff’s• favor will be reversed and a new trial granted.
    ■. Appeal by the defendant, Westinghouse, Church, Kerr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 12th day of May, 1908, upon'the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 14th day of May, 1908, denying the defendant’s motion to set aside, thewerdict and to dismiss the complaint upon the merits.
    . The defendant was engaged in blasting rock in a deep excavation, then hoisting the fragments by a derrick to a pile on the-ground above, from whence they were carried by hand and fed to a stonecrnsher set up about 50 feet away. Some of the stones hoisted up were too large for the crusher.. These .were deposited by the derrick on the part of the pile closest to the excavation and the small ones on the other side, and the small- ones being deposited on the pile kept rolling down to the base of the pile, which grew to be about-15 feet high. The small fragments were then carried from the base of the pile to the crusher. When the fragments were too large for the crusher they were broken up at or near the base before being carried to the crusher. The plaintiff was at work carrying fragments to -the crusher when a large stone, weighing several tons, rolled or slid down the side of the pile and hit him as he was at or near the base of the pile. • The falling of stones in this manner was of occasional occurrence. The plaintiff had been working there for 7 weeks, but not at carrying stone all the while, but only for about a week.
    
      Louis Cohn [Frank Verner Johnson with him on the brief], for the appellant. - .
    
      Sydney A. Syme, for the respondent.
   Gaynor, J.:

The only question submitted to the jury was whether the defendant had used due care to furnish the plaintiff a reasonably safe place to work. The learned trial Judge charged the jury, in substance, that if the plaintiff knew and understood the risk of danger of stones rolling or sliding down the pile he could take such risk, and it was for the jury to say whether he had done so by going at the work and continuing at it, and that if lie had he could nof recover; also that he assumed all risk of danger incident to his work, “ assuming that, the master exercised reasonable care in making the place reasonably safe”. Not satisfied with this' the learned counsel for the plaintiff induced the learned trial J udge to charge the' following request: “I ask your honor to charge,, in connection with the charge as to the assumption of the risks incident to the employment, that the plaintiff in this case only assumed such risks that might be incident to the nature of his employment after the defendant had' fulfilled the duty imposed upon it by law to furnish him with a reasonably safe place in which to work”. This was error. The very question was whether the plaintiff had assumed the risk of the danger of his place caused by the failure of the master to use reasonable care not to create such danger or permit it to continue. The very doctrine of assumption of risk by a servant has reference to risks which exist by the negligence of the master, i. e., by his failure to use reasonable care. 'It is out of such negligence of the master that the question of assumption of the risk by the servant arises. Except there be negligence of the master which makes him liable unless the servant assumed the risk arising from such negligence, the question of such assumption cannot arise — there is nothing for it tó rest on (Mansell v. Conrad, 125 App. Div. 634). ■There are certain risks inherent in' certain employments, and whicli cannot be lessened or removed by any care of the employer. It"is-■a common expression -to say that the servant “assumes” these-risks, by which is meant the strictly accurate, statement .that the ■law casts them upon him, and that the master is not responsible for them. It is risks arising out of the lack of care of the master towhicli the doctrine of assumption of risks by the- servant applies and unless the master, be found negligent, such doctrine has no application to the case. By charging that the plaintiff assumed no-risks until the master fulfilled his duty of furnishing :a sáfe place, the right of the jury to. find that the plaintiff assumed the risk caused by the failure of the master to dó so was taken away; and that is the -only question- there was in the case. .

If the danger was one incident to the details of the work as it progressed, the question wás not one of furnishing .a safe place, but of carrying on the work in a safe manner, or on a safe plan ; but. we have to take the case, on the basis on which it was tried and sent to the jury. '

The judgment should be reversed.

Rich, J.,. concurred; Woodward, T.,. concurred in separate memorandum; Tenes and Bure, TT., concurred in result.

Woodward, J.

(concurring):

I think there was error -in the charge. While it is true that the employee is "deemed to have accepted only the risks -of the employment which remain after the master has discharged his duty of furnishing a reasonably safe place to work and reasonably safe tools- and appliances, this rule relates only "to the incidental risks, and has-no relation to open and obvious risks which the servant may waive, whether such risks are due to the negligence of the master, or to the-■nature of the/.business. (Knisley v. Pratt, 148 N. Y. 372, 378, 879.) Blasting rock.is obviously dangerous; it is the master’s duty, no' doubt, to take reasonable pains, 'considering the: dangerous character of the work, to provide against accidents. But If the -servant, kno wing and appreciating that -the master has taken no precautions; knowing, for instance, that a drunken -and Irresponsible foreman is-in charge, goes into the -employment, he not only accepts the risks which the nature of the employment brings but lie waives the negligence of the master in failing to supply a competent foreman. If he does not know arid appreciate the character or condition of the foreman he does not waive this condition of the employment, and the master is liable for injuries due to the neglect of the master in furnishing such a foreman. The charge as given did not state the law correctly as applied to the facts in this case, and for this error the judgment should be reversed.

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