I concur in the conclusion that this judgment must be reversed, but not for the reasons stated in the opinion of Mr. Justice Ingraham. There was sufficient to go to the jury on the subject of negligence of the defendant in failing to furnish a safe place for men to work who were sent up to remove snow from the temporary roof, and that was the specification of the negligence attributed to the defendant. The roof was put up over a hallway. It was erected in December, at a time of the year and in a season when heavy snow storms were to be expected. It was very slight, made of boards covered with a coat of pitch. A flat skylight, consisting of a frame with thin plates of ordinary window glass, was inserted in the roof to afford light to stone masons in the hall below. Ho guard rail or barrier was put around that skylight, and it was left entirely unprotected. Its upper surface was but a few inches above the level of the roof, and under a heavy fall of snow lying evenly on the roof the skylight might (and did) become entirely concealed. As an independent issue in the case, these facts were sufficient to show negligence; the time of year, the necessity for removing snow when it accumulated on the frail. structure, the *448absence of any protection or of anything to give notice to- those on the roof of the danger they would encounter there, were -enough to show that the defendant had not discharged his duty in making reasonably safe a place at which it would become, in all probability, necessary for his employees to Work. There was enough also in the" circumstances shown to keep the case before the jury on the question of contributory negligence. No one saw the plaintiffs intestate fall through the skylight, but there was evidence to show that when' he fell, a witness (Kane) was working within a few feet of him, but-with his face averted, and that Garety was shoveling- snow. It was for the jury to say on all the proof whether the plaintiffs intestate was free from- contributory negligence, and there is no error in the' record calling for a reversal of the judgment on either- the issue of negligence or "of contributory negligence, and the damages, are not' excessive.
Btit there was a fatal error in the charge of the learned judge to the jury on another and vital question in the case. The defendant contended that the plaintiffs intestate assumed, as incident to his employment, the risk of falling through this skylight oi: off the roof-when he went-up to remove snow. The rule of law that a servant assumes the apparent and obvious risks of his employment,- as well as those he may ascertain by ordinary observation, is too well settled and understood to require the citation of authorities to. support it. It was a crucial- question of fact whether, in this case, the existence' of the skylight and the danger of going upon the roof were known to, or might have been known to, the plaintiffs intestate, and there' was conflicting evidence upon that subject on which the jury might have found either way.. The point was raised very clearly and sharply by the - defendant’s counsel, and the learned judge in his main charge instructed the jury “ that if the deceased did know of the existence of that window, and nevertheless undertook to work there,, he assumed the risk of the apparent danger,” and “ it is for you, therefore, to say whether the decedent did know of the existence of that peril.” That instruction was correct. If Garety knew of the existence of the skylight and of the peril referred to, he assumed the risk of going to Work upon that roof. But at a subsequent stage of the trial the learned judge expressly retracted that proper instruction, and specifically charged the jury that it' was an errone*449ous statement of the law; and that even if the decedent did know of the existence of the skylight, but exercised due care to avoid accident, the plaintiff might recover. That instruction was tantamount to saying that if the decedent were free from negligence he did not assume the risk of working at a dangerous place, known to him to be dangerous, and it put the subject definitely before the jury in such a way as to authorize them to ignore altogether (if they found on the other issues in favor of the plaintiff) the question of the assumption' by the decedent of the risks attendant upon his working in a known place of danger. The learned judge virtually eliminated from the case the entire question of the assumption of the risk and made that issue identical with the one relating to contributory negligence, and thus inadvertently the jury were misled on that subject, and that it must have been influential with them sufficiently appears in the record.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and O’Brien, J., concurred in the opinion of Patterson, J.; Williams, J., concurred in result.
Judgment reversed, new trial ordered, costs to appellant to abide event.