Obvious risk is such as is apparent, and it must be app'arent to the person who is claimed to have assumed the risk. Danger from heat *845generated upon the union of sulphuric acid and water might be perfectly apparent to one familiar with the inside of a chemical laboratory ; danger of the collapse from the overloading of a mechanical structure might be perfectly apparent to a mechanical engineer; and danger from the misuse of an electric current might be entirely apparent to an expert electrician; but these and similar dangers are hidden mysteries to many, and vaguely understood by others. On the other hand, it may well be that generally the danger from a revolving buzz saw is apparent to all who see it in operation. There is a sliding scale of character of dangers, and another of the ability of those who are in danger to understand them. It is fitting, therefore, that it should be left, as provided in .the statute, to a jury’s judgment, whether the danger is obvious.
Here a bank of earth was being removed by the plan of undermining it, and prying off the overhanging portion. The plaintiff was twenty-four years old and had never been engaged in any other work than at “ laboring work, working with a pick, working at excavations, general laboring work; ” he was unable to speak English and testified upon the trial through an interpreter. Whether it was known to him that danger was to be apprehended by undermining this bank, supposing that the defendant had exercised due care to protect its employees who were doing the work, was, it seems to me, a question of fact for the jury’s determination, and it should not be held as matter of law that this risk was obvious to this plaintiff. Under the circumstances of the plaintiff’s walk in life, the business that he was and had been engaging in, and his ignorance, even of the English language, the jury were justified in finding as a fact that he did not understand the danger, and hence that it was not apparent to him. 1 am, therefore, of the opinion that the plaintiff did not, as matter of law, assume the risk. (See Farrell v. City of Middletown, 172 N. Y. 666; Reilly v. Troy Brick Company, 184 id. 399.) This view leads me to dissent, and I vote that the judgment be affirmed.
Judgment and ordei reversed and new trial granted, costs to abide the event.