#### Robert Jenkins, Respondent, *v.*Phœnix Construction Company, Appellant.

First Department,

June 2, 1911.

Blaster and servant — negligence—assumption of risk — defective rope on piledriver.

A charge in a negligence action which limits the risks assumed by a servant to those which inhere, in the service after the master has discharged his duty is erroneous, for the servant may assume risks arising from the master’s negligence, even from his failure to discharge a statutory duty.. . '

*184W here in an action at common law by a servant against his master to recover for personal injuries received While operating a piledriver, it appears that while the hammer of the piledriver was only fifteen feet above, plaintiff endeavored to put a rim on a pile, that the rope holding the hammer broke and it descended, crushing his hand, and the plaintiff’s evidence tends to show that the rope furnished was of poor quality, and had been so for three or four months; that a new rope would last only three or four days; .that the attention of the superintendent had been called to the fact, and that-when a rope broke the plaintiff spliced it if possible, and if not procured a new one from the storehouse, but it is not claimed that the quality of the rope could be discovered from its outward appearance, and the master gave evidence that he purchased it for best quality rope from a reputable firm, it is error to charge the jury that the risks which'the plaintiff assumed did not begin until the defendant had discharged its duty of exercising reasonable care and prudence in furnishing plaintiff with safe and- suitable rope. The jury might have found that the plaintiff knew as much about the danger as the master, and with knowledge that the rope was defective placed his hand where it could be injured if the rope broke.

Appeal by the defendant, the Phoenix Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of October, 1910, upon the verdict of a jury for $5,000.

*E. Clyde Sherwood,*for the appellant.

*Mitchell Wetherhorn,*for the respondent.

Miller, J.:

The plaintiff, an employee of the defendant, was driving piles with a piledriver, a hammer weighing about 3,500 pounds, moving through a framework forty feet in height, and raised by a rope attached to a drum operated by a steam engine. He signaled the engineer to stop the machine and while the hammer was suspended about fifteen. feet above the pile which he was driving, he undertook to put a rim upon it to keep it from splitting, when the rope broke and the hammer descended upon his hand crushing it. The plaintiff’s evidence tended to show that the rope was of poor quality, the fibers being too short; that the same kind of rope had been furnished by the defendant for a period of three or four months; that a new rope would only last three or four days, whereas, if .of good quality *185it ought to last fifteen days; that the attention of the defendant’s superintendent was called to the quality of the rope; that when a rope broke it was spliced, if possible, otherwise a new rope was obtained from the' storehouse or from some other machine not in use. It is not claimed that it was possible to discover the quality of the rope from its outward appearance and the evidence of the defendant tends to show that it was purchased as of the best quality from reputable dealers. The particular rope that broke had only been in use about a day.

Upon the evidence the defendant was liable only in case it was chargeable with knowledge that the -rope being furnished was insufficient for the use to which it was put. The plaintiff himself testified to the fact that the rope frequently broke and that he spliced them as long as it was possible to do so before getting a new one. It appears that there was. a device, called the “ toggle,” attached to the top and bottom of the framework, upon which the hammer could rest when not in use.

At the close of the evidence the court excluded the notice, claimed to have been served pursuant to the Employers’ Liability Law (Laws of 1902, chap. 600; now Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd.), and submitted the case to the jury as an action at common law. In the course of the charge the court said: *“*So far as any risk is concerned which the plaintiff assumed in the premises, I charge you that such risk did not begin until the defendant had' discharged its duty of exercising reasonable care and prudence in furnishing to the plaintiff necessary safe and suitable rope.” To that charge an exception was taken. While expressions ffiay be found in the books to the effect that the servant assumes only such risks as arise after the master has discharged his duty *(Benzing*v. *Steinway & Sons,*101 N. Y. 547; *McGovern*v. *C. V. R. R. Co.,*123 id. 280), that is but another way of saying that the master is not liable if he discharges his duty. It is necessary to observe the distinction between the inherent risks of the business; *i. e.,*those arising after the master has discharged life duty, and the obvious risks; *i. e.,*those resulting from the master’s negligence, *186which the servant assumes by voluntarily continuing' in. a position of danger with full knowledge of it. A charge which limits the risks assumed by the servant to those which inhere in the service after the master has discharged his duty is manifestly erroneous,.because it is well settled that the servant may assume risks arising from the master’s negligence, even from the failure to discharge a statutory duty. *(Crown*v. *Orr,*140 N. Y. 450; *Knisley*v. *Pratt,*148 id. 372; *Rooney*v. *Brogan Construction Co.,*194 id. 32; *Milligan*v. *Clayville Knitting Co.,*137 App. Div. 383.) In this case the jury might have found that the plaintiff knew as much about the danger as the master did, and that he voluntarily put his hand on the pile knowing that the- hammer was suspended above with nothing but a defective rope to hold it. The charge, excepted to, took that question from thé jury, .and the error was, therefore, prejudicial.

The judgment should be reversed, with costs to the appellant to abide the event-.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Ingraham, P. J.

(concurring):

I concur with Mr. Justice Miller. I am also of the opinion that the verdict that the defendant was negligent was not sustained by the evidence. It is not claimed that the Employers’ Liability Act applied, and the liability of the defendant must be measured by its obligation to the plaintiff under the rules-of the common law. - *'*

One of the duties imposed upon the defendant was that of supplying its employees with safe and proper machines and materials to perform their work. A violation of this duty or negligence in its performance-imposed a liability upon the employer for any .injuries sustained in consequence, of the, machinery or materials furnished failing to do the work or bear the strain required of them. It is, however, a question of negligence, not an absolute liability, and if an employer does all that a reasonably prudent man would do to supply his employees with safe machinery and materials to do the work there is no negligence upon which a recovery for injuries sus*187tained can be predicated. The rope in question had been in use four hours on the day before the accident on another pile-driver. When the plaintiff required a rope on the piledriver that he was operating he went to the storehouse to get such a rope. For some reason he could not find a new rope at the storehouse, but there was another piledriver idle, so he took a rope from that piledriver and put it on the one he was. operating. When he took the rope off this piledriver he looked at it to see if it was all right, but there were no flaws apparent and the rope did not show any signs that it was rotten or not a safe rope to use. The plaintiff then put this rope on the piledriver that he was operating and used it that night and the next day until a quarter to four in the afternoon, when the rope broke and the plaintiff was injured. There was some evidence to show that these ropes were expected to last for fifteen days, although some of the ropes that were used had broken after four or more days’ use. This rope had been in use not more than a day. It was as plaintiff testified apparently in good order and a safe and proper rope for the purpose for which it was used. Plaintiff, himself selected this rope as a safe rope to use after examining it to see if there was any indication that it was not in good condition. It had been purchased from a reputable manufacturer, was the same kind of rope that had been used on the work, and had been purchased as the best quality of rope made from the best materials. The evidence is that this plaintiff knew as much about this rope as the defendant, and certainly if it appeared to him in good condition and safe for use no inspection that the defendant could have made would have disclosed the defect which caused the accident. There is nothing in the evidence that I can see that even tended to show that the defendant was negligent, and, therefore, I do not think that the plaintiff can recover.

I, therefore, concur in the reversal of this judgment.

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