The complaint in this action appears to have been framed on the theory that the action was one falling within the purview of the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352), though upon the trial this view was abandoned, and the case proceeded as one at common law. The plaintiff, fifty-one years of age, had been in the employ of the defendant for thirty-three years in making glue, his occupation generally being the cutting up and preparing hides, sinews, etc., for the boiling process: Two weeks prior to the accident the plaintiff was taken from his accustomed work and placed under the direction of the foreman of the boiling house During the two weeks the plaintiff appears to have done various kinds of work, and on the day of the accident he tells the story as follows: '‘Then he [O’Neil, the foreman] said he would bring me upstairs to show me the material upstairs, how it was boiled and stirred up. I followed Jerry up the stairs. I found vats there; they were filling them up. There were fourteen vats on that floor. * * * On this morning when I came up there to work at about eleven o’clock they were filling the boilers. I believe it was six boilers they were filling, six out of fourteen. They were putting all sorts of different hides or skins, as comes in m the wagon, into the boilers. In these vats they were putting these skins in, the material was left from the run that we had previously took out. * * * The process of boiling those skins is by reason of introducing the five steam *754into the boilers. Introducing the live steam into the boilers or vats, and then he told me that when I should come hack from dinner that we would stir up those skins. I went out to dinner and got back about one o’clock. When I came hack I reported to Mr. O’Neil. Mr. O’Neil pointed to number four vat and told me I would find a pole in that and to stir them up.” While engaged in stirring up these skins the plaintiff in some manner lost his balance and 'fell into the boiling vat, sustaining injuries of a painful and more or less permanent character for which the jury has awarded him a verdict of $15,000. From the judgment entered upon this verdict and from the order denying defendant’s motion for a new trial on the minutes the latter appeals.
There was no evidence in this case of any failure on the part of the defendant to provide reasonably safe tools and appliances, no evidence of any failure on the part of the defendant to provide a reasonably safe place for the plaintiff to perform his work except as that may follow from the failure on the part of the defendant to guard the vats in violation of the provisions of section 81 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 106), which provides that “ all vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description shall he properly guarded.” Indeed, the respondent, after calling attention to the charge of the court, declares in his brief that “it appears that the case was not submitted to the jury upon the question as to whether or not the defendant had failed to give the plaintiff proper instructions, or whether or not the defendant was guilty of negligence in failing to provide the plaintiff with reasonably safe appliances.” As to these matters, then, the presumption that the master has discharged his duty is not overcome, and there can he no liability on the part of the defendant because of any alleged failure in respect to these common-law duties of the master. It affirmatively appears and without dispute that the defendant had supplied guards for these several vats; that such guards were in the room at the time the plaintiff went there, and that one guard at least was in place, and came to the notice of the plaintiff before he *755began the work, and at common law this would be a complete performance of the duty of the master to supply reasonably safe appliances. It appears, however, that in spite of the provisions of the statute that “Ho person shall remove or make ineffective any safeguard around or attached to machinery, vats or pans, while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced,” some one had taken the guard from around the particular vat where the plaintiff was put to work, and the case was submitted to the jury upon the theory that, this guard not being in place, the jury might find the master liable if such displacement of the guard was the cause of the accident.
There are two difficulties in sustaining this verdict. In the first place the plaintiff’s testimony, which is all there is as to the happening of the accident, is to the effect that he was drawn into the vat by the pole which he was using through some unexplained cause; through a cause which he appears to be wholly unable to suggest, and which, so far as the record goes, never occurred before or since the accident. There is not the slightest evidence that the absence of the guard rail had anything to do in producing the accident; the proximate cause of the accident was not that there was not a railing in front of this tank or vat, but that the pole which the plaintiff was using, and which appears to have been merely an ordinary stick eight to ten feet in length, for some unexplained reason exerted a drawing force upon the plaintiff sufficient to overbalance him and cause him to fall into the vat. There is no evidence to suggest how strong this drawing force may have been; no evidence to show that it was not strong enough to have produced the same result even had the barrier been properly placed, for in the practical work of stirring up a large vat filled with hides and scraps the guard rail could not have been very high, and the testimony is to the effect that it was about thirty-two inches, or rather below the middle of a man of ordinary height. The question of the duty of the defendant to give the plaintiff instructions being out of the case, it being assumed that the simple pole was a proper tool or appliance, for this question was not submitted to the jury, it is difficult to *756understand how a jury could properly find that the failure to have the guard rail in place was the proximate cause of the accident, when the only evidence in the case is that the accident was caused by some drawing power exerted upon this stick. Of course, if this drawing power was strong enough to overbalance the plaintiff, it might have overbalanced him if there had been a low railing intervening, in which event there could be no possible liability on the part of the defendant, unless the danger to be apprehended from the exertion of the drawing power was one which it was the master’s duty to apprehend and guard against, and this could only arise by showing that the danger was one inhering in the business or occupation, and which was known or should have been known to the defendant, while not obvious to the ordinary inspection of the employee. 1STo one attempts to say what this drawing force was, and as the evidence shows that this boiling house had been in operation for at least eighteen years, it is fair to presume that if this danger had been a recurring one, or one incident to the work, some evidence of the fact would have been produced. As it is, the court instructed the jury that the defendant owed the plaintiff no duty of instructing him as to the danger of falling into the vat, so that the case presents no element of a failure to disclose inherent dangers known to the master and unknown to the servant.
Assuming, however, that the absence of the guard rail was the proximate cause of the accident, the plaintiff, so far as appears, was a reasonably intelligent man. He knew as well as the defendant could possibly have known that to fall into a vat of boiling materials was dangerous; he knew that there was no guard rail; the fact was open and obvious, and his attention was called to the fact by his observation that there was such a railing around one of the fourteen tanks in the room at the very time that he went to work. He testifies to this, and he says he did not think a railing was necessary; that he did not ask for one because he did not think they had one for him, etc. The evidence shows that these guard rails were provided; that they were in the very room where the vat was located, and there is no suggestion that any one refused to permit of their use. The plaintiff knew all of the dangers of *757the situation which it was the master’s duty to know, so far as the record discloses. He must he presumed to have known that the law required these guard rails; that he had a right to have them for his own protection, yet with his attention called to the matter particularly, he elected to go to work without the railing, and by this he must be assumed to have waived the benefits of the statute and to have assumed the risks incident to the open and obvious dangers of the situation. That a party may waive a rule of law, or a statute, or even a constitutional provision, enacted for his benefit or protection, where it is exclusively a matter of private right and no considerations of public morals are involved, and having once done so he cannot subsequently invoke its protection, is too well established to be questioned. (Mayor, etc., v. Manhattan R. Co., 143 N. Y. 1, 26, and authorities there cited.) The requirement of this statute for a railing in position is in addition to the common-law duties of the master, hut the servant has a perfect right, in the full knowledge of the law and the facts, to waive this additional protection, and, under the circumstances disclosed by the evidence in this case, we are of the opinion that the statute was waived and that the plaintiff, having established no possible cause of action outside of the statute, is not entitled to recover.
The judgment and order appealed from should he reversed and a new trial granted, costs to abide the event.
Rich, J., concurred; Jenks, P. J., and Burr, J., concurred on the last ground stated in the opinion; Hirschberg, J., dissented.
Judgment and order, reversed and new trial granted, costs to abide the event.