I think the order of the Appellate Division reversing the judgment of nonsuit at Trial Term and granting a new trial should be affirmed. It is conceded that the defendants violated the statute of this state which enacts that all setscrews shall be guarded and that as a result of that violation of law the plaintiff was injured. The defendants seek to be relieved from the consequences of their wrongdoing on the claim that the plaintiff assumed the risk of their illegal act because he saw and knew of the existence of the unguarded setscrew. My personal opinion on this subject is the same as that expressed by me in the former General Term of the Supreme Court (Simpson v. N YRubber Co., 80 Hun, 415), that public policy precludes an employee from assuming the risk created by a violation of the statute or waiving liability of the master for injuries caused thereby. In the case of Knisley v. Pratt (148 N.Y. 372) this court took a different view of the law and, if the authority of that case remained in full force, I should feel constrained to subordinate my own convictions to that decision, though I may say in passing that subsequent to the decision of the Simpson andKnisley cases, the Federal Circuit Court of Appeals in an elaborate opinion by the present president of the United States held the same doctrine as that of the Simpson case — that risks occasioned by the failure of the employer to supply statutory safeguards were not assumed by the employee though he had knowledge of such failure. (Narramore v. Cleveland, C., C. St. L. Ry. Co., 96 Fed. Rep. 298.) The decision in the Knisley case was a reversal of the judgment of the former General Term of the Supreme Court where, in an opinion written by Judge HAIGHT, now a judge of this court, it was said: "That the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon *Page 358 him." (75 Hun, 327.) Having sat below he did not participate in the decision of the Knisley case when it was before this court and Judge VANN dissented from the decision. The doctrine of theKnisley case has, however, been largely qualified, if not virtually overruled, by the subsequent decision of this court inJohnston v. Fargo (184 N.Y. 379), where we held that an agreement between the employee and employer relieving the employer from liability for all personal injuries to the employee that might result from the negligence of the employer was void as against public policy. If an express agreement could not relieve the master in the case cited, it does not seem clear how by a merely implied contract he can be relieved from the results of a direct violation of the statute.
Moreover, in this case the assumption of risk was a fair question of fact for the jury. The plaintiff knew that the setscrew was unguarded and that if his person or clothing came in contact with it he might be injured, but it does not follow that he necessarily knew of the probability of the sawdust or material in which he was standing yielding to such an extent as to bring his person or clothing into contact with the setscrew. To establish the defense of assumption of risk the burden of proof rests on the defendant (Dowd v. N.Y., Ontario W. Ry. Co.,170 N.Y. 459), and though the defect be apparent, if it may require judgment not possessed by the ordinary observer or servant to realize the hazard caused thereby, the risk is not assumed. (Davidson v. Cornell, 132 N.Y. 228; Welle v.Celluloid Co., 175 id. 401.) The plaintiff, without any previous experience in his work, was injured within four days after his employment. The statute which the defendants violated was enacted for the express purpose of safeguarding the persons of employees. Where an employer deliberately fails to comply with the statute the courts should be loath, except in a very clear case, to hold that the employee assumes the risk of his master's violation of the law. *Page 359 Otherwise the beneficent results sought to be attained by the statute will fail to be realized. There seems, at the present day, an effort by constitutional amendment to render a master liable to his employee for injury received in his employment, though the master has been guilty of no fault whatever, and I feel that such effort is in no small measure due to the tendency evinced at times by the courts to relieve the master, though concededly at fault, from liability to his employee on the theory that the latter assumed the risk of the master's fault.
The order of the Appellate Division should be affirmed and judgment absolute rendered for the plaintiff on the stipulation, with costs in all courts.