Upon the former appeal (107 App. Div. 258) we held that the question of assumption of risk by plaintiff’s ■ intestate was one of fact for the jury. The rule of the assumption of obvious risks docs not rest wholly-upon the implied agreement of an employee, bnt on *814an independent act of waiver evidenced by liis continuing in the employment -with a full knowledge of all the facts.(Drake v. Auburn City Railway Co., 173 N. Y. 166.) The evidence established that when the deceased first went to work upon the building being erected by defendant he was an employee of Conroy Brothers, an independent contractor, and while working for them he was employed in making mortar in the cellar. As the building progressed it became necessary to keep fires in portable stoves upon the different floors to prevent the newly-put-on plaster from freezing.. This work Conroy Brothers had nothing to do with ;• it was not included in their contract, and they had ho duty to perform in any manner connected with it. A foreman of the defendant and a con pie of Italian laborers in its employ performed this labor for the defendant until a few days before- the accident, resulting in the death of plaintiff’s intestate, when a labor union', delegate refused to permit these non-union workmen to longer continue the work, and upon protest to the Conroy Brothers’ firm,' was referred, to the defendant as the employer of the men and owner of the building. Thereupon Charles Brogan, defendant’s president, requested said firm to put one of their men upon the work and the defendant would pay for his services. ' Upon this request and under this agreement, Conroy Brothers directed the plaintiff’s intestate to thereafter do the work. He was engaged in doing the defendant’s work at the request of the defendant, who paid for it. His entire time Was occupied in doing this work,, and he did no work for Conroy Brothers aftér he commenced attending to the stoves. There can be no doubt but that his relations with the defendant were such that the doctrine of assumption of risk may properly be invoked by the latter, and was,a question of fact for the jury, as was held when this case was before us on the former appeal.
Upon the second trial the learned trial justice charged the jury that the plaintiff was entitled to recover unless they found, first, that her intestate assumed the risk; or, second, that his death was the result of or contributed to by his own negligence. Upon the first proposition the jury were instructed: “Did the deceased know that these barriers were not there? If he did, then the law is that he accepted the risk of their absence, and there can be no recovery in this case. * * * But if workmen, knowing that these bar-. *815riers are not there, go to work' around these shafts on -the floors, then the law is that they assume the risk of 'the absence of the barriers, and there can be no recovery. * * * So-1 put to you the question, did this defendant* know, have knowledge and see that this barrier eight feet high around this shaft was not there? -s * he that night, when walking along within two feet .of it, as the proof is, in passing along the whole length of this shaft, see that there was a shaft there and that there was no barrier? If he did, and went so close to it, he took the risk of slipping and falling into it, and he cannot recover. If he saw it and knew it was there, and chose to be there, the law is that he should have kept far enough away not to take the risk of slipping and falling into ik * * * j c¡iarge you that, if he knew that open shaft was there, the law required him to go farther away and keep in a place of safety, and that if he * * * did know it, and that still he went along by it and took the risk of falling into it, then you must find a verdict for the defendant. * * * - The defendant is liable unless the deceased assumed the risk,, unless the deceased saw that it was not there either that day or the day before, or that night, and knowing it not to be there nevertheless, wbnt so close to this opening that he would go into it if he made a slip. * * * If you find that he did know of the absence of a barrier, and knew of the shaft, then you find for the defendant. * * * Of course, if the deceased knew the shaft was there, he must necessarily have known that this guard eight feet high was not there, because he could not look at the shaft without seeing whether the guard was there. If you find that his employment around there was such that he did not know, then you cannot impute to him that he assumed the risk of this employment. But if he did know it, then you must impute to him the assumed risk. That is the law, and you are to take the law from me, and find what is the fact under the law and render your verdict accordingly.”
The uncontroverted evidence established that the deceased knew of the existence of the shaft, extending from the basement to the top floor of the building. The court charged that, having this knowledge, the deceased necessarily knew that the guard was not there, and “ if you find that he did know of the absence of a bar*816rier- and Mfew^'éf•'Aé>shaf4Ftliéniyó’üi;fihd fof’ítK6<dé$eiiáaai$.'’.’'- ■ -Thé : - j ury- f Otind for-the déf eiídátó'j ‘-but-cétfsufe tbé;defébdáél-for-failure- - to ér'eéb sá-féguárds i'ñ cónipiianee^witbTliédá^F"’^':1
W.e*: think* that0 this- Instruction to 8k-fr©mP the - j ü¥y the1 Question' which it w-ás íliéirsdle píoviáCe'^tó dWtérmih'é, ■toVwitl’the-apprécia- ■ tión-hy the-déééásdd^df tlíe'^dhhgéf'ííe -whS dtidtifringiwhich iñ-ust • liáve e-xistéd-'hfeíoídhedduid ;hé'<héldít'óSáye-hssúmed>‘-Se--TÍsk' df-lnsemployment to süeh »á# éMEérifc'=W t& ¿pte'elfldB á íeCóvery -by-.the ‘ plaintiSv - ‘k'-w wíí "•.y>¡x< ai ,:U -v ec-v-iorpsw t-u: u ' i :
• To bring aháfséWitBih the'''6peíhtidn:df5-thé'-ma*ithíoíf"^'v'oVéfúiA-" non fit iriy 'itáiaV* there Ffn'nst be-dotind'to1- eSist"- dií' thhphr-t bf •'the ' petoótiTñjttféd/ tile f áét'h’itókiñ’g "his %'dlk-'dangér- ■ -
oüs; - or' ah- ópp'órtuhity fd -hh'quife snob fcno wlédge'ífey -the' éxelciséi of-* ord-ihaiy cáre. -and -prudién'cé ;hpp£éciá,tiohófJitíié''dangeF.hndwiohtn- ’"¡ ta-ry ácfcidh-'tl-iefé'óhy hnd'íth’é existence óf- éacbdf tbéseifell'i-ñentS -ihüst in this actidii-he ddtéf-ítiinéShá' áh^üestiotí-'o-f^facf 'hy -th'e jury.-;''The-deceaééd'iíád' béén efhplby édirí-attending''.tó','the stovésahotit*1 a Weékpfhei^ls-iío* direct?OríCoñCÍusiW evidence thátsifehhd evér” beeú lipen- %h'éhihthflddrióf" the ¡hhild-ing-hffeiy it 'had h*éáched the - coñd-iíiehnti wMcMt%hB bt'"thé'4i-Wé3df ■■the accident f-ífktívé w-erg-'-nb-- '•' floot bóáfdsdkid on 'that story-; tlíésleepérá'Which -would fOfm- the-foundation $ óf' "flíe* fiddrmg -wdré -i-h place i ‘afid'í the space dbebw'eén'•'■ them liád-be'éh'-Tlíéd with dark'-cold'réd' ashé's p'dlie'-illing #asir£'eguy & la-i1, thé ásl-iéS-iriipKdés'dWmihgtohhév-top:o'f thé?slé&p6r6 and'-in'Othei'® ■ not,- "añd'it whs m^áspláceiwhére-thei'fi'llihg-btasTy'efó^thet'Opíñf''the-'sleéper:tháÉ plainfiS’S'Toet'-cSñghthipbñithati.'.pOrtion^bf'the*sléépfei’-v pioject-mg’-abovié' the'fiililgf'^iísíüg'himi to • f ají in te: lité shaf topen- -. ing; ’T-t'-ddes ñetbppéaf-wheh the ¿sleepers were ¡laid o'r'fiMng done"-on thlS:fiod’rFi:iH -ffightdiavie"béenFdOtie'that very day :and-th©= jury1 - mightháv-é1fóu>ndThátifhh:eMs'tMgiñiégMhiVconditió'n.i''ó"fi'the'wálk-: ? ing' Surfá'ce%as?the--chus"e;df-'M'sTalling¿.‘:'-'ThisicO'ñditidii: constituted' ’ ^one-of the elements of danger to a person attempting’td-walk -«upon.1 .its sm-fáde
edgé. y-It ddes'ifót á'ljpéai»WhetHer¿bhé: fld'OTihoards "hadibéen laid intheother stories1 *df -th#>:bnMtag.--‘‘ There :wete guards- to-the-shaft ' on' soiné- ofKithe;fiodrs:hf«hhe:>huildingi;a&ytesti?S®d'tb hy Berzohefa-; wi-fctiesS called 'by1 the-lde'fenda'nti MEt Was :dark-ait -¡the place-of the; ', injury. From the'evidence" the jury would have' been justified m *817finding that although the deceased knew of the existence of the shaft and the absence of barriers on some of the floors of the building, he did not appreciate the danger to the work he was engaged in at the time and place of the injury, viz., that, of crossing the uneven floor with the stove and tripping upon one of the sleepers projecting above its surface, and for that reason did hot assume the risk, and -that plaintiff was not under the rules of law governing the case precluded from recovering. The determination of this element of the question of the assumption of risk by'the deceased, as matter of law, and its consequent withdrawal from the consideration of the jury by the trial court, constitute reversible error.-
The plaintiff is. entitled to have the question of the existence of all of the essential elements necessary to establish the assumption of risk by her intestate submitted to a jury as a question of fact and determined by them.
■ The judgment and order must be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Woodward and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.' '