I cannot concur in this decision. In the case of Sweeney v. Berlin & Jones Envelope Co. (101 N. Y. 520) the rule as stated in the head note reads: “ A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements, used in the master’s business are of a certain kind or condition and the servant knows it, he voluntarily takes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” In the case of Hickey v. Taaffe (105 N. Y. 26) the head note reads: “An employee, in accepting service with a knowledge of the character and position of the machinery he is required to operate, takes the risk of such perils as are incident to the use of the machinery in its then condition, and are apparent, and he cannot call upon the employer to make alterations to secure greater safety.” It is idle-to cite further authority for a doctrine which is now firmly grounded in the law of negligence. I am unable to see why the case at bar does not come within the very letter of the rule stated in these cases. The warning signal upon this switch, indicating whether it was open or shut, could only be seen for sixty feet by reason of the obstruction of this water tank. This condition had existed since 1881, more than fourteen years. The danger was apparent and the risk perfectly obvious. The plaintiff’s intestate had been upon the road since 1881. He constantly passe'd and repassed this point. That he .was perfectly familiar with this situation and with such danger as it involved cannot be questioned, and it is not questioned in the prevailing opinion. Upon what principle or upon what authority is it sought to relieve him from the legal responsibility of having assumed the risk ?
In the prevailing opinion the general rule is recognized that the *304employee assumes apparent risks. The learned judge then proceeds to say that this rule has no application where the master has not fulfilled the obligation which rests upon him to exercise a reasonable degree of care in furnishing his servants safe places in which and suitable appliances and machinery with which to perform the services required of them. In this, to my mind, is found the fundamental error in this decision. If before an employee can be held to have assumed the apparent risks of the place provided for him in which to work, the master is bound to use reasonable care to make that place safe, the doctrine of the assumption of apparent risks is stripped of its vitality and means nothing. The jury may then say whether the master has the right to use machinery and appliances that are not of the latest pattern, and whether his failure to provide the best machinery and latest appliances is not a violation of his duty to use reasonable care But to provide for just this condition the doctrine of assumed risks has arisen and found its place in the law of negligence. The master may provide such place to work and such machinery as he shall choose. If the servant undertakes the employment and continues therein he assumes such risks as are incident to the situation and obvious. The master is not required to take better care of his servant than the servant would take of himself.
Nor is the position of the court sustained by authority. There are some cases in which it is said that the doctrine of assumed risks is subject to the qualifications. stated in the prevailing opinion. Those, however, are not cases where the assumed risk has been from permanent existing structures, and the danger involved is obvious. The distinction .is clearly pointed out in Davidson v. Cornell (132 N. Y. 234), in which Judge Bradley says: “It is, however, urged, by the defendants’ counsel that, although they may not have been as firmly supported as they should have been,' the plaintiff, having been engaged on the work for considerable time, knew the situation of the girders, that they were neither braced nor bolted at their ends to the brackets on the crossbeams, and assumed such hazards as were incident to the operation of the platform on which he was engaged in the service. It is, as a general rule, true that a servant entering into- employment which is hazardous assumes the usual xrisks of the service, and those which are apparent to ordinary obser*305vation, and when he accepts or continues in the service with the knowledge of the character of the structures from which injury may be apprehended, he also assumes the hazards incident to the situation. (Gibson v. Erie Ry. Co., 63 N. Y. 449; De Forest v. Jewett, 88 id. 264; Sweeney v. Berlin, etc., Envelope Co., 101 id. 520; Hickey v. Taaffe, 105 id. 26; Williams v. D., L. & W. R. R. Co., 116 id. 628.) Those not obvious, assumed by the employee, are such perils as exist after the master has used due care and precaution to guard the former against danger. And the defective condition of structures and appliances which, by the exercise of reasonable care of the master may be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter’s knowledge of the situation, is such as is apparent to his observation. (Kain v. Smith, 89 N. Y. 375; McGovern v. C. V. R. R. Co., 123 id. 280.) ”
The distinction is again referred to in the case of Knisley v. Pratt (148 N. Y. 378).
Again, in the prevailing opinion, it is said that the servant is not bound at all times and under all circumstances to be mindful of the •dangers that surround him while engaged in the performance of his ■duty, even though he may be well aware of their existence. If the •doctrine of the assumption of obvious risks has any vital force, how can it matter whether or not the servant has in mind, the danget. This fact, clearly, has significance if the question be one of contributory negligence. If it be one of the assumption of obvious risks, it is clearly immaterial. Under that doctrine, the master is absolutely relieved from liability resulting from that risk. There is no question of the care or the negligence of the employee. It is a contract •exemption absolute. This proposition hardly needs authority. In Louisville & Nashville R. Co. v. Orr (84 Ind. 50) the rule was stated that an assumption of the risk by the servant will exonerate the master from liability, although the servant was free from negligence. In Morris v. Gleason (1 Ill. App. 510) it was held that, although an explosion was not caused by the fault of the injured servant, yet, if he was aware that the boiler was defective, he cannot recover, whatever care he took to prevent the explosion or avoid -the effect thereof.
*306Some. confusion has arisen in the books by reason of the failure-to distinguish clearly between the defense of contributory negligence and that of an obvious risk assumed. The on.e maybe proven, in this State, under a general denial; the other is an affirmative defense,, which the defendant must plead. It is true there are casés where it is difficult to determine whether or not the risk is an obvious one. In such cases the defenses come very close to each other, and in. this, class of cases are found expressions which have caused the confusion. Such cases are the cases upon which the appellant here relies. In the case of Wallace v. C. V. R. Co. (138 N. Y. 302), where there was-a low bridge, there were also required to be tell-tales as a warning-before the bridge was reached. These were gone. The risk which a brakeman assumed was a risk of the low bridge when warned by these tell-tales, and not the risk of the bridge without the tell-tales. That risk was not necessarily, obvious. He may not have known that the tell-tales were gone. The plaintiff was allowed to recover upon the negligence of the defendant in not having the tell-tales, which the statute required. In the case of Benthim v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303) the risk was not an obvious, one. In that case the fireman, while looking back from his engine-in discharge of his duty, was'struck by a telegraph pole-that was. bent over to within four inches of the side of the locomotive upon which the deceased stood. Justice Follett, in writing the opinion, says : “ This pole was not like a bridge or a station house, a structure the location of which could not well be forgotten. The engineer of this train testified that, though he had passed this pole many times before, he had never observed how close it stood to the track, while another engineer, called by the defendant, testified that he had observed its proximity to the track.” It is evident that the situation-of that pole was not that of a settled structure by the side of the-road. The court could not say that its proximity was so obvious as tó make it an apparent risk! It, therefore, did not come within the doctrine of assumed risks. It presented a case of contributory negligence. In the case of Brown v. N. Y. C. & H. R. R. R. Co. (42 App. Div. 548) a mail crane was placed near to the track, and, as the jury has found, nearer than was necessary and nearer than reasonable care allowed. • When the mail bag was hung upon it, part of the crane extended so near to the track as to strike a. *307fireman and cause his death. It seems' that when the mail bag was not upon, the crane, the arm or bow fell back out of the reach of danger. It did not appear that this fireman had ever seen this crane in the condition in which it was at the time of the accident. It is, therefore, evident that the risk was not such an obvious one as the law holds to be assumed by a servant entering into the employ of his master.
These cases are clearly distinguishable from the case at bar. Here the structures were permanent. They had existed there in the same condition for many years. The intestate knew of their existence. To hold the defendant liable for an injury from a risk which the plaintiff himself has understandingly chanced, would, in my ’judgment, do violence to a well-settled principle of law.- I think the judgment was right and should be affirmed.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.