The sole question presented by this appeal is whether or not the plaintiff, a workman in the defendant’s factory, assumed the risk of the unguarded knives in a machine known as a jointer, with which the plaintiff’s left hand came in contact and was injured.
The jury found, and the evidence warranted the finding, that it was practicable to guard the knives, which would have prevented the injury, and that the plaintiff himself was free from contributory negligence. The duty being imposed upon the defendant under such circumstances to guard the knives (Labor Law [Laws of 1897, chap. 415], § 81, as amd. by Laws of 1904, chap. 291), it follows that the .defendant is liable for the injuries received by the plaintiff, unless the plaintiff assumed the risk of the exposed and unguarded knives. As to that, the evidence showed and the learned trial court charged the jury that the plaintiff himself knew during the whole course of his employment that this machine was unguarded and that he realized the dangers arising from such a condition existing during that time, but refused to hold as a matter of law and charge as requested by the defendant that, knowing that fact and realizing the danger, the plaintiff assumed the risk, leaving it to the jury to say whether, under all the circumstances, there was an implied contract made between the parties by which the plaintiff assumed the risk. Counsel for the defendant excepted to the refusal to charge as requested upon the subject of assumed risk, and also to the charge as made. The question was also raised on the motion for a nonsuit.
I think it undoubtedly true that under the common-law rule the plaintiff would have assumed the risk, but the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600) modify the former rule as to the assumption of obvious risks by an employee. According to the provisions of that act (§ 3), the presumption now is that an employee, by entering upon or continuing in the service, assents to the necessary risks only of his occupation or employment, and those are defined to be such as remain after the employer has *134exercised due care and complied with the laws for the greater safety of the employee. The risk of the unguarded knives was not a necessary risk, since the defendant had not complied with the laws for protecting the employee by guarding the knives as it was required to do. While that was the presumption, it was not conclusive; the question still is, whether that presumption has been overcome.
The same section further provides that in an action such as this, “The fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employee to the existence or continuance of such risks of personal injury therefrom, or as negligence contributing to such injury. The question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same, place and course of employment with knowledge of the risk of injury, shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.”
The burden of showing that the plaintiff had waived the duty which the defendant owed him to thus protect him from injury, and that he himself had assumed the risk thereof, was upon the defendant. (Dowd v. N. Y, O. & W. R. Co., 170 N. Y. 459.) I think the learned trial judge was clearly right in refusing to hold as a matter of law that the plaintiff assumed the risk. I am also of the opinion that the verdict of the jury is not against the weight of the evidence upon that subject.
The circumstances which were submitted to the jury, from which they were permitted to determine whether or not the plaintiff assumed the risk, were, the fact that he knew the dangerous condition of the machinery and realized the risk arising therefrom; his intelligence, his age, the length of time during which he had remained in the defendant’s employment, his wages, the instructions given to him, and the intention of the master and the servant as' to the time during which he should remain in the master’s employment. It appeared that the plaintiff was forty-five years of age; he *135had worked at carpenter work and around machinery, including jointers (although not jointers precisely like the one in question). He was hurt the fourth day of his service. There is nothing to show that his wages were such as to suggest that he was taking an unusual risk; while he was shown how to operate the machine, nothing was said by himself or his employer that he should assume the risk. Having in mind the duty which the law imposed upon the-defendant and the rule as to assumption of risks by the employee under the Employers’ Liability Act, I think the conclusion entirely warranted from the evidence that the plaintiff did not assume the risk.
It does not seem profitable to discuss cases in other jurisdictions arising there under factory acts and labor laws; they are so unlike our own upon the question here as to afford little assistance in determining this question, and I am not aware of any decision in the appellate courts in our own State upon this precise question unless it be that of Neuweiler v. Central Brewing Co. (119 App. Div. 101), decided in the second department in April, 1907, and that, I think, is quite in line with the conclusions here reached.
It is further contended on behalf of the plaintiff that he could not assume the risk of the unguarded knives so as to relieve the defendant from liability to him for personal injuries resulting therefrom. The learned trial court held to the contrary and charged the jury, as requested by counsel for the defendant, that the failure to guard the machine, even though it was required by statute, is one of the risks which the servant can and may assume. Counsel for the plaintiff, to sustain his contention, cites the case of Johnston v. Fargo (184 N. Y. 379), while Knisley v. Pratt (148 id. 372) and similar cases are relied upon by counsel for the defendant to sustain his position to the contrary.
In the Knisley case it was held that an obvious risk from unguarded machinery may be assumed by an employee, and the employee’s right of recovery for injuries from unguarded cogs was defeated upon that ground, notwithstanding the provisions of the Factory Act* requiring the employer to guard the machinery. In *136the Johnston case it was held that an express contract between employer and employee, by which the latter assumed generally the risk of negligence, including that of the employer’s, is against public policy.
The doctrine of assumed risk in its application to this case must rest upon the principle of implied contract. (Dowd v. N. Y., O. & W.R. Co., 170 N. Y. 459.) Ordinarily an employer and his workmen m^.y make any contract regarding the work to be done and the manner of doing it which they see fit to make, and the employer may furnish such place and subh tools and appliances for carrying on the work as he chooses, provided the employee accepts the service under those conditions and assumes the risk thereof. This general rule, however, has its limitations and exceptions. Generally speaking, if the agreement is against public policy it will not be enforced by the courts. Such an agreement is regarded as illegal and void.
Since the Knisley case arose (in 1891), and the opinion in that case was written, the statutory law of our State for protecting the lives and health of employees engaged in hazardous employments, including workers in factories, has undergone a marked change for better safeguarding them from harm. In 1897 the Labor Law was passed, and in the same year,* and very likely in connection therewith, a new section was added to the Penal Code, known as section 3841, which provides, as amended in 1903 (Laws of 1903, chap. 380), that any person who violates or does not comply with certain provisions of the Labor Law, among others, article 6, relating to factories, is guilty of a misdemeanor. Article 6 includes section 81 of the Labor Law, which relates to the protection of employees operating machinery. It requires, among other things, that the machinery of every description shall be properly guarded.
Assuming that the failure of the defendant to properly guard this machinery is a misdemeanor, subjecting the defendant to criminal liability, the interesting question is presented whether any contract, express or implied, which attempts to relieve the employer from his failure to properly guard the machinery by having the employee waive the requirements of the statute and assume the risk thereof and relieve the employer from liability for personal injuries *137resulting to the workman from the failure to comply therewith, is of binding force and effect. The Appellate Division of the Supreme Court in the second department seems to have decided that such risk may be assumed (Travis v. Haan, 119 App. Div. 138), basing its decision upon the case of Knisley v. Pratt (supra). But, as has been seen, since the decision in the Knisley case the section of the Penal Code referred to has been enacted.
It has been suggested, however, that in view of the holding of the trial court that the plaintiff might assume the risk and the finding of the jury that he did not assume it, it has ceased to be a practical question. However that may be, since we have reached the conclusion that the case was properly submitted to the jury upon the first ground and the jury having found that the plaintiff did not assume the risk, it does not seem necessary to pass upon the other question.
The judgment and order should be affirmed, with costs.
All concurred, except McLennan, P. J., not voting.
Judgment and order affirmed, with costs.
See Laws oí 1886, chap. 409, § 12, added by Laws of 1887, chap. 462, § 4, and amd. by Laws of 1890, chap. 398, § 10. Renumbered § 8, and amd. by Laws of 1892, chap. 673, § 8, and revised in Labor Law, § 81.— [Rep.
See Laws of 1897, chap. 416.— [Rep.