The master owes to his servant the exercise of reasonable care and prudence'in providing for him a safe place in which to work arid reasonably fit. and safe machinery and ápjiiiances; ■ - (Harley v. B. C. M. Co., 142 N. Y. 31 ; Sisco v. L. & H. R. R. Co., 145 id. 296.) Whether he was negligent in this case depended upon, the manner in which . he conducted his work and how such work is usually conducted by quarrynlen, the dangers apparent and reasonably to he apprehended, and' all the various circumstances of the case ; his negligence was, therefore, a proper question to submit to the jury.
■ - . .-. ■ , . The question of assumption of risk is -not án element of the plain? tiff’s cause of action, -but is an affirmative defense, to be presented •and established as such. (Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459.) Formerly," whether the defendant established that defense was to he ■ determined - by_ the court or. jury, as required by the ordinary rules of practice. Many times it was established, or appeared so clearly that it was determined by the court; other times, Where different inferences might be drawn from' the facts, appearing ,as to the servant’s knowledge of the defect* his intelligence, Itis appreciation of the danger, and the. circumstances of the situation, it was left to the jury' to determine. The question always *577was, the same as now, did the servant know the defect, appreciate the danger, and then by accepting or continuing the employment _ thereby assume the risk % If so, the defense, was established. The want of harmony in the decisions upon this subject arose from different views as to where the burden of proof lay, but in 1902 the Dowd case decided .that the assumption of risk was an affirmative defense and no part of the plaintiff’s case; this statute, passed the same year, attempted to make a uniform practice upon this subject, and by section 3 directed that in all future cases this defense should be passed upon by the jury. It provides that “ in all cases arising after this act takes effect,” and “ for personal injuries to an employee received after this act takes effect,” where the employee knew the defect, the question whether he understood and assumed the risk should be determined in the first instance by the jury .and not by the court. Section 2 of the act requires a notice in _an action to recover “under this act,” and in Gmaehle v. Rosenberg (178 N. Y. 147) the Court of Appeals , has held that the act creates a new cause of action, making the employer responsible for the carelessness of the superintendent, or oüe acting as such, and perhaps for a defect of ways, etc., and that no notice is required except to recover for those new causes of action. There is no claim that a notice must be served to'affect or operate upon a mere affirmative defense. Every word in the statute should be given its reasonable: and fair interpretation, and should not be construed as meaningless, or be given a forced construction unless necessary to carry out the intent of the act. The title of the act is : “ An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees.” We would infer that the act had two objects: First, to extend, and, second, to regulate, and so we assume that the regulation was to refer to other matters than the liability extended. Otherwise the use of the word “ regulate ” would be surplusage, because the act creating.the ne.w liability would naturally define its, terms and conditions. By giving the words used their ordinary and reasonable meaning, we see the liability is extended by creating one and perhaps two new causes of action and i"s regulated in all future cases by providing that where the. servant knew of the defect the auéstion whether he understood and assumed the risk was to be *578determined by the jury and not by the court. Section 3, iii substance, provides that in all futufe cases, between master and servant, .the necessary risks of the employment, where the master is not negligent, are assumed by the servant as matter of law; but where the master is negligent and the servant knew of the negligence, that the question whether he understood and assumed the risk shall be determined as a matter of fact and not of law. 'It does not relate . at all to the cause of action, and does not add any new liability so far as this case is concerned. It relates solely to the remedy, the question of practice by the court on the trial, and prescribes the manner in which the defense of the defendant upon that subject shall be decided. The language of section 3 is in terms extended to all cases thereafter arising, except the last sentence- which provides that the employee “shall not be entitled under this act to. any right of compensation or remedy against the employer ” ,if he knew of the defect and failed to communicate it. to the master or superintendent when the defect was unknown to them. That provision does not qualify or destroy the previous general language of the section; it simply prohibits a servant who has secreted such a defect from.gaining any benefits under the act. By the use of the disjunctive “ or ” in the sentence it appears that, such a servant may lose either of the two benefits given by the statute,, which are (1) the right of action given by sections 1 and 2, or (2) the rights pertaining to the remedy given by section 3 itself. The act is intended to benefit the employee; but this section provides that if he secretes the defect from the master or superintendent he shall gain no benefit whatever under the act. The language used is appropriate, and should have just the effect intended, but does not qualify or destroy what precedes it. In my judgment section 3 of the act applies to all actions of negligence brought by the servant against the master, and this case was, therefore, properly submitted to the. jury. The action against an employer for his personal negligence, is at common law and not under the act. The new cause of action is- for the negligence of a person acting as superintendent. .If the construction here contended for is not right, then where. the employer is personally guilty section 3 does not apply; where he is blameless, it does apply. He may have a nonsuit in case he is personally at fault; otherwise not. This result does not seem reasonable. A *579construction should be adopted which gives the section a uniform application and simplifies the practice.
While the effect of this section was not necessarily decided in Ward v. Manhattan R. Co. (95 App. Div. 437), it was properly and deliberately passed upon iii that case, and has an important bearing here. '
It is unnecessary to consider whether the verdict is sustained by the evidence or not, as the question now being determined is the propriety of the submission of the case to the jury.
Chester, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.