I concur upon the ground that the charge was erroneous upon the question of assumption of risk, in the respect pointed out in the opinion of Mr. Justice Spring. I think, however, that even if the plaintiff knew of the opening in the floor it does not necessarily follow that she cannot recover. The action is brought under the Employers’ Liability Act. (Laws of 1902, chap. 600 ; since revised into Labor Law [Consol. Laws, cliap. 31; Laws of 1909, chap. 36],
*388' § 200 et seq.) Under the provisions of that act, although the risk was obvious, it still a question of fact whether she assumed it. I think the Employers’Liability Act: has changed the rule of the common law in that regard, and that the change is not merely in procedure, (namely, in requiring the assumption of the risk to be submitted to the jury as a question of fact), but that the- substantive law itself lias' been changed.