#### WILLDIGG v. KNOX.

(Supreme Court, Appellate Division, Second Department.

March 13, 1903.)

1. Master -and Servant — Death on Servant — Assumption op Risk.

Defendant employed deceased as a foreman to clean out a cistern at night, furnishing him with others to assist in the work. The mouth of the cistern was unprotected, and descent into It was obtained by an iron ladder fastened to one of its walls, the first rung of which was between 18 and 24 inches from the mouth. During the day deceased examined its condition, and obtained lanterns with which to do the work; and in the evening, as he started to descend with a lantern, he slipped from the ladder, receiving injuries from which he died. *Held,*that deceased assumed the risks of descending into the cistern, and defendant was not liable for his death.

Appeal from Trial Term, Kings County.

Action by .Arthur S. Willdigg, as administrator of the estate of Edward Mooring, deceased, against Edward M. Knox. From a *1019judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before BARTLETT, WOODWARD, HIRSCHBERG, JENKS, and HOOKER, JJ.

Perry D. Trafford, for appellant.

Robert B. Austin, for respondent.

HOOKER, J.

The plaintiff had a recovery at the Trial Term for damages on account of the death of his intestate, brought about by the negligence of the defendant. The judgment must, however, be reversed, for the reason that the intestate assumed the risk of the employment in which he was engaged at the time he met his death.

The Court of Appeals has laid down the rule as follows:

> “A servant who enters upon an employment, from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or which he must have known, had he exercised ordinary care and observation.” Williams v. D., L. & W. E. E. Co., 116 N. Y. 628, 22 N. E. 1117; Appel v. B„ N. Y. & P. E. Co., Ill N. Y. 550, 19 N. E. 93.

This language must be considered applicable to the facts in this case. The complaint alleged that the defendant required the deceased, Edward Mooring, to leave his regular employment and to clean out a cistern, and failed to provide a guard or hand rail around the mouth of the cistern, and neglected to furnish or provide sufficient lights for the performance of this work, which was undertaken in the nighttime. The evidence shows that the mouth of the cistern was between 2^i and 3 feet in diameter; that, securely fastened to one of its walls, was an iron ladder, a few inches out from the wall, and extending from the bottom of the cistern to a point within 18 to 24 inches from the mouth. The cistern needed cleaning, and the deceased was instructed about noon to get lanterns and be prepared to clean the cistern out in the evening. He was to receive extra pay for this work, and was at liberty to engage in it or not, as he wished. During the course of the afternoon it is undisputed that he descended into the cistern at least twice for the purpose of making observations as to the depth of the water then being pumped out, and as to other details, that in the evening he might accomplish his work properly. During the afternoon he procured two or three lanterns from a neighboring establishment to use in connection with the rather meager supply upon the premises of the defendant. Three or four men were assigned to help him in the work of cleaning out the cistern, and he was their foreman or boss, and had complete charge of the undertaking.

About 7 o’clock in the evening of November 20, 1899, in company with two Italian laborers, who had been provided for him, he approached the mouth of the cistern. No railing of any sort was provided at the opening, and the only light shed upon the scene was that from the lanterns he had secured. The evidence is somewhat conflicting as to the number of lanterns which shed their light upon this opening. One of the Italians, sworn for the plaintiff, says that the only light around the cistern was the lantern carried by the deceased *1020when he met with the accident; and one of the witnesses for the defendant, who was not present at the time the accident occurred, but who ran up within a moment or two, says that another lantern stood near the mouth, so that its rays were shining into the cistern. The only eyewitness who was sworn describes the occurrence in this manner:

> “He (the deceased) tried to get down, put one foot down the cistern, and fell down. There was one light in the cistern. The Englishman (deceased) had that. There was only one around the cistern. He was holding the lantern himself. That was all there was. I presume he did not put his foot on the ladder right, and he fell down. The lantern did not go out before he fell. As he fell down, he fell with the lantern, and went down that way. I know the condition of the ladder; it was not slippery. * * * He put one foot down and fell down. * * * He put his foot down and fell in. That is all I know.”

Assistance was summoned immediately after the deceased fell, and another witness, descending, found the intestate dead on the bottom of the cistern. It seems from the evidence that the top of the ladder in question was directly under one point of the circumference of the circular mouth of the hole, and the usual manner of descending is described in this way:

> “They had to get over this way, put the foot out that way, and hold on to the top of the sides of the cistern till they got down low enough — till they caught hold of the rung of the ladder.”

The questions of negligence of the defendant in not providing a railing or some other appliance to which the intestate might have clung until he was safely upon the ladder, and in failing to provide sufficient light, together with the question of the intestate’s contributory negligence, were submitted by the court to the jury, and they rendered a verdict in favor of the plaintiff. At the close of plaintiff’s case, and again at the close of the evidence, the defendant moved for the dismissal of the complaint, on the ground, among others, “that the proof shows that the risks, if any, were known to, and were directly assumed by, the deceased.” The motion was denied, and the defendant’s exception presents that question to this court. We think that the learned trial judge erred in his refusal to grant this motion. To descend into this cistern, even in the daytime, was a hazardous undertaking, and its danger was enhanced, if the effort was made at night, unless the place was brightly lighted. The top of the ladder was between 18 inches and 2 feet from the surface of the ground, and the only possible way for a person to descend was to kneel down on the edge of the mouth of the cistern upon one knee and extend the foot of the other leg toward the first rung of the ladder, and proceed in this manner. One descending in this position could not see the ladder, and must feel with his foot to ascertain its location. A false step upon the ladder, a slipping of the knee, or a loss of balance when accommodating one’s self to his new footing on the rung, would each produce disastrous results, and commqn reason, would dictate that the undertaking was dangerous. The intestate must have had a full and complete understanding in relation to all the dangers surrounding the undertaking, for he descended into the cistern twice during *1021the course of the afternoon for the purpose of preparing for cleaning out the cistern in the evening, and, it is fair to assume, for the purpose of acquainting himself with the physical conditions. On account of his descents in daylight it must have been clear to him that in attempting to go upon the ladder the chief danger was in properly locating it, and light was essential here. Disregarding, however, the clear necessity of the case after dark, he sent two lanterns out to the sidewalk, many yards away, and, according to the evidence of the plaintiff, attempted to descend the ladder assisted by the light from but one lantern, and the evidence shows without dispute that he himself held the lantern. We think that the language of Judge Earl in Kaare v. T. S. & I. Co., 139 N. Y. 369, 377, 34 N. E. 901, may be adopted with unusual force in this case. There an employé, engaged in the nighttime in wheeling a load upon a wheelbarrow up an elevated platform two feet wide, unlighted and without guards, fell therefrom and was injured. The court said:

> “A careful scrutiny of this record satisfies us that the plaintiff, as matter of law, upon the undisputed evidence, ought not to have recovered, and should have been nonsuited. If we asstime that this platform was only two feet wide, the plaintiff knew it. He had used the platform for two weeks, night and day, and wheeled his barrow up and down it many times. If it was dangerous for use on that account, he knew it as well as any one; probably better than any of the defendant’s officers. He did not ask that it should be made wider, nor did he complain of the manner of its construction to any one. Knowing exactly the condition of the platform and the risk of its use, and fully able to appreciate that risk, he voluntarily took the risk upon himself and exposed himself to the danger, and he cannot, therefore, maintain his recovery on the ground that the platform was not wide enough. De Forest v. Jewett, 88 N. Y. 264; Powers v. X. Y., L. E. & W. R. R. Co., 98 N. Y. 274; White v. Wittemann Eith. Co., 131 X. Y. 631, 30 N. B. 236.”

We believe that the rule adopted by the Court of Appeals in that case is applicable to the facts disclosed by the record here. The intestate knew the physical condition and the relation between the ladder and the mouth of the cistern. He had used the ladder on at least two occasions during the afternoon. If it was dangerous for use on account of the absence of a guard or hand rail, or on account of darkness, he knew those conditions as well as any one. He did not ask that any appliance be attached which he could clutch in descending ; nor did he complain of the paucity of light. He appreciated the risk, and voluntarily exposed himself to the danger, and should not have prevailed upon defendant’s motion to dismiss.

The judgment and order appealed from should be reversed, and new trial granted; costs to abide the event. All concur.