
    George F. Long, Respondent, v. Fulton Contracting Company, Appellant.
    Fourth Department,
    November 15, 1910.
    Trial — evidence—judgment on former trial — master and servant — charge — assumption of risk after master has agreed to'repair machine ■ — assumption of risk under Employers’ Liability Act.
    A judgment in an action to recover for personal injuries will not be set aside because the court allowed the plaintiff to read to the jury an order and judgment of the Appellate Division reversing a judgment iu his favor on a former trial upon questions relating to damages, where it is not claimed that the verdict on the second trial is excessive and the evidence establishes the defendant’s liability beyond question.
    Where a servant who was injured by the breaking of a derrick boom had called the attention of the master’s superintendent to the decajmd condition of the boom and had refused to work until assured that the derrick was safe and would be repaired the next day, but before that time arrived the accident happened, it is proper to charge that plaintiff did not assume the risk.
    Under the Employers’ Liability Act it is presumed that the employee by entering upon or continuing in service only assents to the necessary risks of his occupation; and these are such as remain after the employer has exercised due care and complied with the laws for the greater safety of employees.
    Williams and Robson, J.J., dissented.
    Appeal by the defendant, the Fulton Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the lltli day of January, 1910, upon the verdict of a jury for §5,000, and also from an order entered in said clerk’s office on the 22d day of January, 1910, denying the defendant’s motion for a new .trial made upon the minutes.
    
      A. H. Cowie, for the appellant.
    
      O. M. Reilly, for the respondent.
   Kruse, J.:

The action is for negligence. The plaintiff was employed as a signalman on the derrick used for lifting and moving heavy material in the defendant’s work. The boom of the derrick broke and struck the plaintiff, fracturing his skull so that the brain exuded, and otherwise injuring him. The verdict is for $5,000. It is not claimed to he excessive. The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600; revised into Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 11.) The case has been here once before and reversed, but only upon questions relating to damages. (133 App. Div. 812.) .

No evidence was introduced on behalf of the defendant, save the testimony of one physician, relating to the plaintiff’s injuries. The testimony shows that the boom was punky, soft and rotten; that the attention of the superintendent was called to it; that the plaintiff and others refused to go to work unless it was fixed ; that they said it was not safe; that the superintendent told them to go to work — that he would guarantee the boom and would have it fixed the next day. But before the next day came the accident had happened. Quite a number of witnesses testified substantially to these facts, and they are not disputed. The superintendent was not sworn upon the trial.

Two points are urged for reversal: (1) That the trial court erred in allowing the order and judgment of reversal of the Appellate Division in the former case to be read to the jury. It was done over the general objection and exception of the defendant, but the point which the appellant now makes was not specifically raised on the trial, namely, that it was improper to state the result of the first trial. But assuming that the general objection was sufficient, I think no harm was done. While it appeared that the plaintiff recovered a verdict on the former trial, it also appeared that the judgment entered thereon had been reversed. The evidence, if not conclusive as a matter of law, establishes beyond question the defendant’s liability; and, as lias been stated, the verdict is not claimed to be excessive.

(2) The only other ground urged for reversal is in the charge relating to assumed risk. The trial court charged that every employee is deemed to assume the necessary risks of that employment, but those risks are not assumed which with ordinary and reasonable prudence the master could have avoided. The defendant excepted to the part stating what risks were not assumed. I think the exception not well taken. The undisputed evidence shows that the plaintiff refused to work because the derrick was unsafe. He was assured by the superintendent that it was safe and would be repaired the next day. Belying upon that assurance the plaintiff remained at work. Before the time for making the repair the accident happened. Under such circumstances, the plaintiff did not assume the risk. (Rice v. Eureka Paper Co., 174 N. Y. 385 ; Swarts v. Wilson Mfg. Co., 115 App. Div. 739; affd., 193 N. Y. 623.)

Furthermore, under the Employers’ Liability Act, under which the action is brought, the presumption now is that an employee, by entering upon or continuing in the service, assents to the necessary risks only of his occupation or employment, and those are such as remain after the employer has exercised due care and complied with the laws for the greater saféty of the employee.

I think the verdict is right and that the judgment and order should be affirmed, with costs.

All concurred, except Williams and Bobson, JJ., who dissented on the ground of errors in the reception of evidence and in the charge.

Judgment and order affirmed, with costs.  