The plaintiff, an employee of the defendant, was driving piles with a piledriver, a hammer weighing about 3,500 pounds, moving through a framework forty feet in height, and raised by a rope attached to a drum operated by a steam engine. He signaled the engineer to stop the machine and while the hammer was suspended about fifteen. feet above the pile which he was driving, he undertook to put a rim upon it to keep it from splitting, when the rope broke and the hammer descended upon his hand crushing it. The plaintiff’s evidence tended to show that the rope was of poor quality, the fibers being too short; that the same kind of rope had been furnished by the defendant for a period of three or four months; that a new rope would only last three or four days, whereas, if .of good quality
Upon the evidence the defendant was liable only in case it was chargeable with knowledge that the -rope being furnished was insufficient for the use to which it was put. The plaintiff himself testified to the fact that the rope frequently broke and that he spliced them as long as it was possible to do so before getting a new one. It appears that there was. a device, called the “ toggle,” attached to the top and bottom of the framework, upon which the hammer could rest when not in use.
At the close of the evidence the court excluded the notice, claimed to have been served pursuant to the Employers’ Liability Law (Laws of 1902, chap. 600; now Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd.), and submitted the case to the jury as an action at common law. In the course of the charge the court said: “ So far as any risk is concerned which the plaintiff assumed in the premises, I charge you that such risk did not begin until the defendant had' discharged its duty of exercising reasonable care and prudence in furnishing to the plaintiff necessary safe and suitable rope.” To that charge an exception was taken. While expressions ffiay be found in the books to the effect that the servant assumes only such risks as arise after the master has discharged his duty (Benzing v. Steinway & Sons, 101 N. Y. 547; McGovern v. C. V. R. R. Co., 123 id. 280), that is but another way of saying that the master is not liable if he discharges his duty. It is necessary to observe the distinction between the inherent risks of the business; i. e., those arising after the master has discharged life duty, and the obvious risks; i. e., those resulting from the master’s negligence,
The judgment should be reversed, with costs to the appellant to abide the event-.