The theory of the plaintiff is that the 'defendant was negligent in not properly guarding, the tracks on which the crane moved. Plaintiff had been employed in this shop for seven months, and was fully conversant with the operations of the crane and the manner and purpose of its use and with the conditions which there existed. The learned trial justice, at the request of plaintiff’s counsel, charged the jury that “ the risks which the plaintiff assumed were those risks, and those only, inherent in the nature of the business of the defendant which remained after the defendant had exercised due care in providing for its employees, and had complied with the laws affecting or regulating the business for the greater safety of defendant’s employees.” This was error. The risks referred "to in the foregoing proposition are those which are described in section 3 of the Employers’ Liability Act (Laws -of 1902, chap. 600) as “ necessary risks,” and the same section of the statute declares that those are the only risks which' the employee is “ presumed to have assented to.” But the court told the jury, as a matter of law, that those were the only risks which the plaintiff assumed, thereby taking from the jury the question o.f the assumption by the plaintiff of all risks except those specified in the proposition which was *732charged. Ho where else in charging-the jury did the leárned-. trial. justice explain to them or make any allusion to the question of the assumption of. risk by the plain tiff except, to state -to- them the defendant’s claim in reference thereto. The effect of -this charge was practically .to eliminate from the case the^very important question of the assumption of the risk by the plaintiff in conjunction with the negligence of the defendant. Whatever danger existed was apparent and obvious to the plaintiff. He had worked there for seven months. He- knew as much about the situation and dangers arising therefrom as did the defendant. ■ Assuming, without deciding, that the defendant was negligent in not properly guarding the tracks on which the crane was propelled, there was nevertheless the important question whether the- plaintiff,, -with full knowledge of the situation, had not assumed the risk of the accident which befell him, and it is difficult to, see .how any jury with .-a full, and correct, understanding of the law could draw any-other inference-than that the plaintiff assumed such risk.- But. this question under the .charge of thé court was not passed on by the jury. In fact the court -in effect told the jury as'a matter of law that the plaintiff assumed no such risk. ,
The judgment' and order must he reversed and a new trial" granted, with costs to the appellant to abide the event.
All concurred, except Smith, J., dissenting..
Judgment and order reversed and new trial granted, with costs to appellant to abide event. u •