(concurring):
I think there was error -in the charge. While it is true that the employee is "deemed to have accepted only the risks -of the employment which remain after the master has discharged his duty of furnishing a reasonably safe place to work and reasonably safe tools- and appliances, this rule relates only "to the incidental risks, and has-no relation to open and obvious risks which the servant may waive, whether such risks are due to the negligence of the master, or to the-■nature of the/.business. (Knisley v. Pratt, 148 N. Y. 372, 378, 879.) Blasting rock.is obviously dangerous; it is the master’s duty, no' doubt, to take reasonable pains, 'considering the: dangerous character of the work, to provide against accidents. But If the -servant, kno wing and appreciating that -the master has taken no precautions; knowing, for instance, that a drunken -and Irresponsible foreman is-in charge, goes into the -employment, he not only accepts the risks which the nature of the employment brings but lie waives the negli*349gence of the master in failing to supply a competent foreman. If he does not know arid appreciate the character or condition of the foreman he does not waive this condition of the employment, and the master is liable for injuries due to the neglect of the master in furnishing such a foreman. The charge as given did not state the law correctly as applied to the facts in this case, and for this error the judgment should be reversed.
Judgment and order reversed and new trial granted, costs to ¡abide the event.