This judgment should be affirmed. The facts are stated in the opinion of Mr. Justice Hatch. The court charged the jury that “the plaintiff and the defendant together erected the appliance; each knew there were no nails in it; each knew there were no ropes tied there, and it is. for you to say whether or not, under those circumstances, it was not one of the obvious risks of the employment, which was part of the contract of hiring which the plaintiff assumed, because if the plaintiff did not assume the obvious risks of hiring, then an employer would be an insurer. * * * The plaintiff must look out for himself; he must not go into a business with obvious risks if he does not want to assume them * * *. It is for you to consider whether whatever risks there were, he did not see them.”
I think this was correct. Assuming that there was a violation by the defendant of the duty to furnish to his employee a safe scaffold upon which to do his work, a failure.to furnish such a scaffold would justify the jury in finding the defendant negligent. The *363ordinary rule, however, that, as between employer and employee, an employee assumes an obvious risk in doing the work which he is employed to do, applies. The plaintiff testified that he helped to erect this scaffold; that he knew as much about it as the defendant; that he expressed doubt about its safety and only used it when assured by the defendant that it was safe. The defendant denied that he gave such assurance, and the question whether such assurance was given was submitted to the jury, who have found a verdict for the defendant. While this was a question for the jury, I think it was left to them by a charge that was free from error, and that their verdict should not be disturbed. The plaintiff had assisted in the construction of this scaffold; was familiar with the details of its construction, and if he used it with full knowledge of its condition without any assurance from the defendant that it was safe or a proper one under the circumstances, the jury were justified in finding that the plaintiff had assumed the risk in the use of the appliance as it existed when he used it. I do not find that the court charged that whatever defects existed in this appliance were perfectly obvious, but that question was, I think, fairly left to the jni7-
The judgment and order should be affirmed, with costs.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Hatch, J., dissented.