At the time of and for some time prior to the accident, the plaintiff, who had had many years’ experience in the erection of structural iron work and furnace building, was in defendant’s employ as foreman of a gang of riveters, engaged in erecting a steel tank about eighteen feet in diameter, and which was then about sixty feet in height. To enable the riveters and other employees to perform their work, a staging was extended up within the tank, section by section, to the height of the steel work. On the top of it there was erected a temporary scaffold five feet high, extending clear around the inside of the tank, composed of boards and timbers of suitable size, with which, among other things, several brackets of the ordinary pattern were constructed and fastened to uprights and upon such brackets boards were placed for the workmen to stand upon. When an additional tier of steel sheets was added to the tank such temporary scaffold was taken down, the timbers and boards composing it piled on the platform immediately below, another section was added to the staging, and the low, temporary scaffold was again erected on top of it as before, and so on, repeating the process every time a five-foot,tier of steel was put in place.
The staging and scaffold were erected by a gang of carpenters in defendant’s employ, of whom one Stoeckel was foreman. He selected the timbers to be used, of which, so far as appears, the defendant furnished sufficient of suitable quality. Late in the after* *335noon of the day previous to the accident the carpenters were engaged in taking down the temporary scaffold and were piling its parts on the platform below. The plaintiff testifies that while such timbers were lying upon the platform he observed that one end of a brace of one of the brackets was split and was unsuitable for use unless fixed; that he called Stoeckel’s attention to the fact; that he was told to mind his own business; that Stoeckel said he would fix it and look after his part of the work; that thereupon the plaintiff left the structure and soon thereafter the premises; that when he returned the following morning the erection of the temporary scaffold had been practically completed and he, with certain of his men, went upon it and commenced work without making any attempt to learn whether or not the defective piece of timber had been again used or fixed; although he says he had it in mind and that by a glance he could have ascertained the fact.
The evidence tends to show that soon after the plaintiff began work and while he was standing over the bracket of which the defective piece of timber formed a part, it settled from one and one-half to two inches, which caused him to lose his balance, slip and fall to the platform five feet below, and that he thus sustained the injuries of which he complains. Although the plaintiff’s version of the transaction was contradicted by the evidence introduced on behalf of the defendant, we must assume that the jury found the facts to be as testified to by him.
It is unnecessary to consider the weight of the evidence, because, as it seems to me, the judgment and order appealed from must be reversed on account of erroneous rulings, made by the learned trial court, which were prejudicial to the defendant and to which it duly excepted. After the court had finished his charge, the following took place: “Mr. Ward (Plaintiff’s counsel): I ask the Court to charge the jury that the moment the promise to repair was given them the assumption of the risk was removed for a reasonable time. The Court: That would depend upon the further question as to when the promise was given and whether it was given by a person having authority to bind the defendant. Mr. Ward: Do I understand your Honor to charge that if the jury find that the promise was given hy a person in authority then that the assumption of risk was removed for a reasonable time? The Court: Tes. Mr. Bab*336cock (Defendant’s counsel): 1 except to that, your Honor. The Court: That is the law. Mr. Wai’d : I mean in its application to this case. The Court: That is the law. I will not charge it in this case because it does not appear to have been given by any person whose duty it was to repair, or who had authority to direct. It was given by a mere — if it was given at all under the testimony here-—by a man who had charge of the riveters, as I understand the testimony. Mr. Ward: The plaintiff has sworn that Stoeckel said he would fix it, and it appeal’s here indisputable that that was Stoeckel’s business. The Court: Well, if that is true, then I will charge your request. The jury will recollect the testimony. Mr. Babcock: I except to that. The Court: I did not understand that it is claimed that Stoeckel so stated. Mr. Ward : That is all.”
It is undisputed that the plaintiff did testify as stated by his counsel, viz., that “ Stoeckel said he would fix it ” (the brace), and it also appeared, undisputed, that that was Stoeckel’s business. The court, therefore, charged expressly, and without qualification, that if Stoeckel promised to fix it (the brace), and it was Stoeckel’s business to do so, from the moment such promise was made the assumption of risk was removed for a reasonable time.
The instructions thus given did not state the correct, rule of law applicable to the facts of the case. It is the rule that when a master installs a machine and permits it to become so out of repair as to make it dangerous for an employee to operate 'the same, if the master promises to repair and remedy it, such employee may continue to operate the machine, although informed as to its defective condition and fully appreciating the dangers incident thereto, and if injured because of such defects, he may recover the damages resulting therefrom. In such case the assumption of risk by the employee, although obvious and fully understood, is removed. (Rice v. Eureka Paper Co., 174 N. Y. 385.)
Such rule, however, does not apply where, as in the case at bar, the promise to repair relied upon was made by a foreman of one of many gangs of men, all engaged in the prosecution of one enterprise for a common master, to a foreman of another one of such gangs; otherwise, by an interchange of such promises by the several foremen, all would be relieved from the assumption of risk without the knowledge of the master. Stoeckel, the foreman of *337the carpenters, represented the defendant in building the scaffold in question, and it was bound by his acts in its construction, but he was not authorized to make a contract with a fellow-foreman which would either increase or decrease the liability of his employer. The assumption of risk by an employee rests upon contract, express or implied {Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459), and it can only be removed or eliminated by like contract. But Stoeckel had no authority to make a contract of any kind, either express or implied, for or in behalf of the defendant. How or when was Stoeckel authorized to agree with the plaintiff, a fellow-foreman, in effect that he would properly perform his work and that the plaintiff might use any structures erected by him, with his eyes shut and rely solely on such agreement ? The general rule is well settled that a servant assumes all risks incident to his employment and all dangers which are obvious and apparent. (Crown v. Orr, 140 N. Y. 450; Knisley v. Pratt, 148 id. 372.)
Again, we think the rule laid down in the Rice Case (supra) does not apply where the promise relied upon relates to the selection of material with which to erect a structure of the kind in question. In that case the master had installed the machine, knew that it was defective, and knew that its operation was thereby made dangerous, and it made the promise to repair. In the case at bar the master furnished ample, suitable material for the proper construction of the scaffold, and the foreman made use of a bracket which was defective, but before doing so he assumed to agree with the plaintiff that he would not use such defective bracket; in other words, that he would erect the scaffold in a proper manner. Suppose Stoeckel had promised all of defendant’s employees working in or about the steel tank in question that he was going to use only new and perfect timbers in the construction of any scaffolds erected by him. Would such employees, one or all of them, because of such promise, if they went upon a scaffold which they knew to be defective and unsafe, be entitled to recover in case of injury ? This precise proposition must follow if the correct rule was stated by the trial court.
As we have seen, Stoeckel, in erecting the scaffold, represented, was the alter ego of, the defendant. It was liable for any negli*338gence on his part which resulted in injury to another, provided such other was not gnilty of contributory negligence or did not use it when the danger incident to such use was known and obvious and fully understood.
We conclude that the promise of Stoeckel, which is relied upon, did not remove the assumption of risk by the plaintiff for the reason that he had no authority to make such jiromise. It was, therefore, a question for the jury to determine upon all the evidence whether or not the plaintiff knew or ought to have known of the defective condition of the scaffold and whether or not he assumed the risk of an accident when he went upon it.
The question of plaintiff’s contributory negligence was also for the jury. The defendant claimed that the plaintiff was negligent because he knew that the bracket in question was to be used by Stoeckel, and that, from what he states Stoeckel said to him, he had no right to assume that it would be fixed, but that in any event, in the exercise of reasonable care and prudence, he ought to have ascertained whether it had been fixed before going upon it, which he could have done “ at a glance.” That question, however, was taken from the consideration of the jury by the court by charging as requested by the plaintiff’s counsel. They w'ere told, in substance, that if the promise adverted to was made by Stoeckel, then plaintiff’s knowledge as to the condition of the scaffold was immaterial.
It is concluded that for the reasons above stated the judgment and order appealed from should be reversed and anew trial granted, with costs to the appellant to abide the event.
Williams, J., concurred; Spring and Stover, JJ., dissented.