Appellants’ "counsel rests his claim for reversal of this judgment upon the ground that plaintiff’s intestate was guilty of negligence which contributed to produce his death, and also upon the ground that he, with full knowledge of the danger of the situation, continued in defendants’ employ, thereby assuming such risk as was incidental to the unguarded trench. ‘That the jury was authorized to find the defendants guilty of negligence jn not protecting the plaintiff’s intestate is not questioned in the appellants’ brief. Nor is any question made as to any ruling by the learned trial judge during the progress of the trial.
As we view this case it will not be necessary here to determine whether the assumption of risk is an affirmative defense which must be pleaded, or whether the 3d section of the Employers’ Liability Act (Laws of 1902, chap. 600) applies to cases brought upon .the commón-law liability without service of the notice, prescribed in section '2 of the act. Granting for the argument the appellants’ contention upon both these questions, we still think the judgment was right and must be affirmed. -
The plaintiff’s intestate was a young man twenty-six years of age. It appears from the evidence of his wife that he had never before been engaged in ditching. He had worked as a truckman, upon a steamboat and upon a farm. /The work óf ditching was, however, new to him. While there had been a cave-in of which he must have been aware, the extent to which the ditch was filled thereby does not appear. The trench was filled to the depth of a foot only as it appeared to him on the morning he went to work. While dirt was falling continually while he was there at work, it- was only in *285small quantities. There was nothing'in anything that happened to give him notice as matter of law that the dirt might fall into the trench in such large quantities as to -.bury him and take his life. Whether or not he was guilty of contributory negligence in working there was in our judgment properly submitted to the jury, and we cannot say that the verdict which they found was not justified by the evidence.
Nor had the plaintiff’s intestate knowledge equal to that of the defendants of the dangers of the situation. The defendants were experienced contractors. They had dug ditches before. With 200 men in their employ in digging ditches, some of them nine feet deep, it was their business to know the danger of a cave-in and to protect the trenches in order that the place in which their men were compelled to work might be made safe. The doctrine of assumption of risk by an employee is based upon his knowledge equal to that of the master of the dangers inherent in the situation. The jury might well have found in the case at bar that the plaintiff’s intestate had no such equal knowledge, ahd, therefore, that he did not assume the risk of the accident for which his administratrix has recovered this verdict.
The judgment should, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.