
    John I. Schermerhorn, Appellant, v. The Glens Falls Portland Cement Company, Respondent.
    
      Negligence—injury from the breaking of an iron band surrounding the kiln of a ■ cement mill—assumption of the risk by the employee—rule in respect thereto — question of negligence and contributory negligence for the jury.
    
    A complaint, in an action brought by an employee against his master to recover damages for personal injuries sustained by the servant in consequence of the alleged negligence of the master in failing to furnish him with a reasonably safe place in which to work, states a. good cause of action at common law and one which was' not created by the Employers’ Liability Act (Laws of 1902, chap. 600).
    It is, therefore, not necessary for the employee to allege in the complaint and to prove upon the trial that within 120 days he gave notice of the time, place and cause of the injury as required by the¡ provisions of that statute. . .
    In such an action it appeared that the defendant operated a cement mill, the kilns in which extended through the four stories of the building; that the plaintiff was employed on the second story tending a kiln; that at intervals between the floor and the ceiling of the second story there were four iron bands six inches in width and half an inch thick around the kiln at. which the pláintiff worked; that several months before the accident one of these bands.' broke because of the strain to which "it was subjected by the expansion of the kiln under the intense heat generated therein and in falling fractured an employee’s leg; that the plaintiff then told the defendant’s foreman that if the band.was not.loósened he would not work there, to which the foreman replied “ that he would see that it was attended to at once; ” that the matter was'also suggested to the defendant’s superintendent, who stated that he would have the hands loosened and also that he'would put up a guard; that thereafter four lateral iron guards running from the floor to- the ceiling outside and crossing the hands on four sides of the kiln were put up, for the purpose of preventing a hand from flying out from the kiln in case it should break. The bands were not, however, loosened. Subsequently one of the bands broke by reason of the expansion of the kiln and in falling struck and injured the plaintiff.. The band parted on the side of the kiln opposite the place at which the plaintiff was working and the plaintiff testified that he supposed that the -band had. been loosened.
    The court, at the close of the plaintiff’s case, dismissed the complaint on the ground that the plaintiff had assumed the risk of the accident.
    
      Reid, that if the plaintiff knew the cause of the danger equally with the defendant, or, in other words, if the risk was obvious, the ruling was correct;.
    That, upon the evidence, however, it could not be said, osa matter of law, that the risk was an obvious one, but that that question was one of fact for the jury to determine;
    That there was sufficient evidence to warrant the submission to the jury of the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence.
    While it is the rule that a servant assumes all' the risks usually incident, to his. employment, yet that rule is based on the supposition that the master has exercised reasonable care in providing the servant with a safe place in which to wprk, and it is those risks only which cannot be obviated by the exercise of such care by the master that the servant assumes. Known dangers which can be avoided by the exercise of reasonable care by the master are not such as are incident to the business. i
    Appeal by the plaintiff, John I. Schermerhorn, from a judgment of the Supreme Court in favor of the defendant, entered' in the office of the clerk of the county of Washington on the 26th day of September, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Washington- Trial Term.
    ' T. F. Hamilton, for the appellant.
    
      Edward M. Angelí, for the respondent.
   Chester, J.:

The learned trial justice put the dismissal of the complaint upon two grounds, first, that the plaintiff had not given the notice to his employer required by section 2 of chapter 600 of the Laws of 1902, within 120 days, stating the time, place and cause of the injuries he received, and, second, that under the facts as proven the plaintiff assumed the risks in doing, what he did at the tíme ¡hg was. injured. ' .

With respect to the first ground it may be said that since the trial the Court of Appeals has held that chapter 600 of the Laws of 1902 did not apply t,o a case where,, as here, the complaint does not charge any liability based upon the provisions of that statute, but only applies to any néw or extended liability created thereby. (Gmaehle v. Rosenberg, 178 N. Y. 147.) Here the negligence charged in the complaint is “that the defendant did not'furnish the plaintiff a reasonably safe place to work,” and the facts are alleged upon which that conclusion is predicated. As was said in the case cited: “ It was the' settled law of this Stat'e prior to the enactment of the statute that the master was bound to exercise reasonable care to provide the servant a safe placé to work and safe and suitable machinery and appliances with which to work, and that for a failure to' exercise such a degrée of care he was liable to the servant for any injury caused thereby, This is what our courts and the courts generally throughout the country have held to be the common-law liability of the master.”

The complaint here having alleged a good cause of action under the common law and one, therefore^ not created by the act of 1902 the complaint should not have been dismissed for failure to allege and prove that the notice required by section 2 of that act was given.

We think also the court was in error in dismissing the complaint on the other ground mentioned.

The plaintiff was employed as á cement burner by the defendant. In its mill where he worked there were ten kilns for burning cement. These were built of brick and were each about sixty-five feet in circumference and about ninety feet high running through four stories of the mill. The method of burning was as follows: The material from which the cément was made was put in the kilns near the top on the fourth floor. The coal was fed into the kilns on the third floor. On the second floor there were four doors on opposite sides of the kilns through which, when opened, long rods were inserted to poke the cement down. On the first floor the burned product was drawn from the kilns. The plaintiff’s work was in poking down the cement with a long rod at one of the kilns on the second floor. On that floor there were four iron bands around the kiln at which plaintiff worked, each being six inches in width and one-half inch thick, one being near the floor, one near the ceiling and two others between. The ends of these bands were butted and riveted together. The heat was intense about the kilns and the men had. to strip and wash frequently to keep their flesh from becoming sore and chafed. Pails were. provided by the defendant for this purpose at each of the kilns. The kiln at which plaintiff worked had just been drawn, plaintiff had washed himself and was in the act of setting his pail down near the kiln, in its customary place, when one' of the bands, which was about eight or ten feet high and which weighed about 400 pounds, broke by the sheering off of the rivets that fastened it together and fell striking the plaintiff upon his head as he was in a stooping.position and severely injuring him. The break was caused by the expansion of the kiln under the- intense heat to which it was subjected.

Another of these bands had broken several months before and in falling broke an employee’s leg. After this the plaintiff told the foreman of the burners that the band was wrong and if it was not loosened he would not work there and the foreman replied “ that he would see that it was attended to at once.” The matter was also called to the attention of the superintendent by a committee of the men and he suggested that it could be made safer by loosening the bands, and said that he would have them loosened, and as soon as they got material he would have something put up as a guard. After this and before plaintiff was injured four lateral iron guards, running from the floor to the ceiling outside and crossing the bands on four sides of the kiln, were put up. 1 These were intended to prevent a band from flying out from the kiln in case it should break.

While it is the rule that a servant assumes all the risks usually incident to his employment, yet that rule is based on the supposition that the master has exercised reasonable care in providing the servant a safe place in which to work, and it is those risks only which cannot be obviated by the exercise of such care by the master that the servant assumes. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368.) Known dangers which can be avoided by the exercise of reasonable care by the master are not such as are incident to the business. (McGovern v. Central Vermont R. R. Co., 123 N. Y. 280, 287.)

The court, in holding that the plaintiff assumed the risks, put its ruling in this respect on the ground that the plaintiff knew the cause of the danger equally with the defendant, or, in other words, that it was an obvious risk. If that was so, the ruling was undoubtedly right, but the plaintiff was entitled on a motion to dismiss the complaint at the close of his Case to the most favorable view of the evidence that could be taken, and we must apply that principle in reviewing the ruling. When the danger was pointed out to the foreman and the superintendent.the plaintiff was assured that the bands would be loosenéd at once. While the lateral guards were put on after that these would not prevent ,the bands from breaking by the expansion of the kilns, but the loosening of the bands would. It is a fair inference from the evidence that the plaintiff assumed that the foreman or superintendent had loosened them as they said they would, and if they had done so the accident would not have happened. More than this, the rivets sheered off and the band parted on the opposite side of the kiln from where the plaintiff was standing. He testified: “ I did not know that the band had not been loosened; I supposed that when he said that he would do a thing he done it; I could not see from where I stood and worked whether it had been loosened or not; no maní could, because the dust was so settled around there between draws that it would cover everything up; there was much dust; at the time of the draws there was dust, smoke and gas.” With this evidence in the case we think the court should not have held as a matter of law that the risk was an obvious one, but that a question of fact was presented which should have been submitted to the jury. We think also that there was enough evidence to require the submission of the questions of defendant’s negligence and of plaintiff’s freedom from contributory negligence to the jury, and, therefore, that the complaint should not have been dismissed.

All concurred.

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