° Plaintiff sued, under the “ Employers’ Liability” provisions .of the Labor Law (Laws of 1909, chap. 36, §§ 200-204), for personal injuries caused by the 'breaking of a tail-board on defendant’s wagon while plaintiff was employed thereon in defendant’s business. Defendant repaired the defect temporarily, had a heavy man jump on the tail-board, and, when it did not break, said to the plaintiff, “ see that is all right.”' Plaintiff then, though reluctantly, used the wagon during the greater part of a day; but finally brought it back and said, in substance, that defendant would have to have a new tail-board put on, as the repaired one was dangerous. Defendant replied that, as business was dull, he did not wish to go to the expense, at that time, but as soon as business picked up he would get a new one. Later on, during the same day, the accident occurred.
The learned trial judge set aside the verdict of. the jury in plaintiff’s favor as against the weight of evidence, basing his decision flatly on the theory expressed in these words of the opinion: “ The case in this aspect falls within the principle that, where a servant continues in the service of the employer with knowledge of existing conditions and whatever dangers. there may be involved therein, or where they are just as open and obvious to the servant as to the master, the servant assumes the risk of such service.”
There can be no doubt that, under the law as it existed prior to the Employers’ Liability Act (Laws of 1902, chap. 600), following the line of decisions which began in England with that of Lord Abinger in Priestly v. Fowler, 3 M. & W. 1 (1837), and, in this country, with Murray v. South Carolina R. R. Co., 1 McMull. *385 (1841), and Farwell v. Boston & Worcester R. R. Corporation, 4 Metc. 49 (Shaw, C. J., 1843), mere continuance by a servant, in his master’s employ, after knowledge of danger from a defect in machinery or ways, would inevitably have been held to imply assumption of risk of injury by him -as matter of law. This conclusion. in the early cases, dealing with the subject.as one of “-first impression,” was not arrived at as a necessarily logical deduction from contractual or other relations existing, but was derived largely from the argument *81ah incorwenienti. Indeed, even at the present time, the authorities are not a unit on the precise basis for the theory of the assumption of risk, i. e., whether it be founded on contract express or implied, waiver, or the maxim, volenti non fit injuria in the realm of torts. See Dowd v. N. Y O. & W. R. Co., 170 N. Y. 459, 472; Drake v. Auburn City R. Co., 173 id. 466, 473.
I am of the opinion, however, that section 202 of the Labor Law (Laws of 1909, chap. 36; originally the Employers’ Liability Act, Laws of 1902, chap. 600, § 3, in force and applicable to the present case) changed the previous rule of law; (1) not merely by requiring the question whether the employee under such circumstances has assumed the risk to be left to the jury as matter of fact; but (2) by enacting (through implication) that mere continuance in employment with knowledge and appreciation of the danger does not compel the inference as matter of fact that the servant has assumed the risk. Consequently, the finding of a jury, to the effect that a servant has not assumed the risk merely because he has continued in the employ with knowledge and appreciation of the danger, may not be set aside by the court as against the evidence, merely on the ground that these two elements were present.
(1) In the first place, it seems to me that it would nullify the effect of this piece of positive legislation (admittedly remedial) to hold that, as the question “whether the employee understood and assumed the risk of such injury shall be one of fact,” it must, therefore, be submitted to the jury; and yet to maintain that, because the statute further provides that “ a verdict rendered contrary to the evidence may in a proper case be set aside,” the court may set aside a verdict in favor of plaintiff merely because there were present the two elements, knowledge of risk and continuance in employment, which had just been submitted to the jury for the very purpose of determining whether or not under such circumstances the employee assumed the risk. Such an interpretation of the statute amounts to saying that, when these two elements are present, the question whether the employee .by reason thereof assumed the .risk shall be left to *82the jury to be determined as matter of fact, although the court has already determined that the servant has thereby assumed the risk, and that, if the jury should find that he has not, the verdict should be set aside, on that account alone, as “against the evidence.”
In other words, the question of fact is left to the jury, although the court has already prejudged its determination to be necessarily against the plaintiff.
(2) But there is another decisive section in the statute which confirms this view. I refer to the last clause, which provides that an employee shall not be entitled under this statute to compensation in any case where he knew of the defect which caused the injury and failed to give notice thereof. If, nevertheless, under this provision, a verdict involving the jury’s determination that an employee has not assumed the risk by continuing in the employment with knowledge of the danger may be set aside because continuance in the employment with knowledge necessarily implies assumption of risk as matter of fact — then the last quoted section would be worse than meaningless. The law would then say, in substance, to the employee: “ If. you continue in your master’s employ with knowledge of a defect and do not notify him thereof, you cannot recover; but since, if you continue in his employ with' knowledge of the risk, you cannot recover anyhow,—even if you do notify him, you cannot recover either! ” Or, to reduce it to its real absurdity, it would say:' “ If under circumstances in which you cannot recover, you do not notify your master of the defect, you cannot recover.”
Indeed, the argument hereinabove pursued might be urged with still greater force, in view of the additional proviso in the last sentence of section 202 which absolves the servant from the necessity of giving notice, if it appears on the trial that the defect was known to the employer prior to the accident.
This interpretation is confirmed by the line of English decisions, beginning with Thomas v. Quatermaine, 18 Q. B. Div. 685 (1887), distinguished and explained by Lord Esher in Yarmouth v. France, 19 Q. B. Div. 647, 655, 656 *83(1887), and summed up in Smith v. Baker, App. Cas. 325, 356, 365 (1891). These cases hold in substance that, partly by reason of the provision in the English act (43, 44 Vict. 1880, chap. 42, § 2, subsec. 3), almost identical in terms with the last sentence of section 202 which I have just quoted, the theretofore existing substantive law had been changed; and that mere continuance in employment with knowledge of the risk can no longer be held as matter of law or matter of fact to involve necessarily the servant’s assumption of the risk,- and that a jury’s determination that, notwithstanding the presence of those elements, the servant had not assumed the risk, could not be set aside, in the absence of other persuasive or rather determinative circumstances proving that he had assumed the risk. They expressly say that the effect of the maxim volenti non fit injuria, as applied to this class of cases, has been limited, in fact destroyed, by the Employers’ Liability Act.
It may be noted, in passing, that the English law does not even contain the provision of our act declaring assumption of risk to be a question of fact.
As an illustration that the old rule of law enunciated in Priestly v. Fowler does not express the only and necessarily correct inference to be drawn from a servant’s continuance in employment with knowledge of the danger, I cite the language of Lord President Robertson, who, in Wallace v. Cutler Paper Mills Co., 19 R. 915 (Sc. 1892), says, at p. 918: “If ‘risk’ means simply ‘danger’ and ‘accepting the risk’ means ‘encountering the danger,’ then every workman who is sciens of a dangerous defect in machinery, and goes on working, accepts the risk in that sense, for he exposes his life and limbs to the danger of loss or injury. But about such a workman there remains over the question whether he ‘ accepts the risk ’ in this other sense, that he agrees to relieve his master of the consequences of any injury caused by what ex hypothesi is the master’s fault, and insures himself against the risk.” See also Osborne v. London & Northwestern Ry. Co., 21 Q. B. Div. 220, 225 (1880); Smith v. Baker, App. Cas. 325, 356 (1891).
The most direct expression in the English cases on the *84point involved is to be found in the language of A. L. Smith, L. J., in Williams v. Birmingham Battery Co., 2 Q. B. Div. 338, 344 (1899), who says: “ The sole question which was asked of the jury as to this was, had the deceased the same means of knowing that this was dangerous as the defendant had? A. Tes. Q. Did the deceased know it was dangerous? A. Tes. Sow does this prove that he either con-, traded or consented or undertook to accept the risk?” .
My conclusion, therefore, is that expressed by Kruse, J., concurring in Milligan v. Clayville Knitting Co., 137 App. Div. 383: “ The action is brought under the Employers’ Liability Act. Under the provisions of that act, although the risk was obvious, it is 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, has been changed.” See also Reynolds' v. Seneca Falls Mfg. Co., 137 App. Div. 446; Ovelsen v. Howes Transp. & Contg. Co., 139 id. 158, and Persons v. Bush Terminal Co., 68 Misc. Rep. 173.
In Graves v. Stickley Co., 125 App. Div. 132; affd., 195 N. Y. 584, the same judge, writing for the court, says: “ 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 (due to the master’s negligence) 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 had ".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 *85taking 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.”
I think, moreover, that the provision that the verdict of a jury on the question of assumption of risk may be set aside as contrary to the evidence “ in a proper case ” was merely a restatement of the rule applicable to all verdicts of a jury in civil cases, properly restated in this particular act, which expressly required what had previously been regarded as a question of law to be submitted to the jury as á question of fact. This, in effect, amounts to no more than the iteration of the necessary rule that a verdict of a jury which has been arrived at by passion, prejudice or mistake may be set aside to avoid injustice. That rule, however, should not be construed, in the face of the other language of the act and of its manifest intent, to mean that the jury’s determination as matter of fact that a servant had not assumed the risk, although he was aware of the danger and continued in the employment, must be set aside by the court as contrary to the evidence, merely because, previous to the act, the court would have held as matter of law that the verdict was against the law.
I am aware that the decisions in Baker v. Empire Wire Co., 102 App. Div. 125; Vaughn v. Glens Falls Portland Cement Co., 105 id. 136; Roche v. India Rubber Co., 115 id. 582; Carey v. Manhattan R. Co., 116 id. 247, 249, and Kellogg v. New York Edison Co., 120 id. 410, may readily be interpreted as sustaining views contrary to those hereinabove expressed. It may be, however, that in those cases the actual record disclosed circumstances, in addition to the servant’s mere continuance in employment after knowledge of the risk, from which it should follow that, as matter of fact, he must be held to have assumed the risk. It certainly is apparent from a reading of the opinions in those cases that the points *86discussed by me were not raised at the bar, nor urged upon the attention of the court.
On the other hand, in the cases cited by me, namely, Milligan v. Clayville Knitting Co., Ovelson v. Howes Transp. & Contg. Co., Graves v. Stickley Co., and Persons v. Bush Terminal Co., supra, the court seems to have considered the Very question whether mere continuance in employment with knowledge of the danger necessarily compels a finding of fact that the employee has assumed the risk; and the court' reached the conclusion that the verdict of the jury in favor of the plaintiff cannot be set aside, unless there are other and further elements present which ' the jury should not have disregarded. These cases constitute, so far as I can find, the latest decisions in point. The precise question has never reached our Court of Appeals; but in Rice v. Eureka Paper Co., 174 N. Y. 385, 397; Guilmartin v. Solvay Process Co., 189 id. 490, 495, 496, and Clark v. N. Y. C. & H. R. R. R. Co., 191 id. 416, 420, there are expressions which tend to confirm the view which I have taken.
In the case at bar I find not only an absence of other circumstances leading to the conclusion that the jury should have found that the plaintiff assumed the risk as a matter of fact; but, on the contrary, it is shown, without contradiction, that there was an element present, namely, the master’s assurance that the appliance was “ all right ” after he had repaired it, by which it has been held that a possible inference that the servant had assumed the risk may be regarded as expressly negatived. See De Stefano v. Peekskill Lighting & R. Co., 107 App. Div. 293, 296.
Finally, when it is remembered that assumption of risk is an affirmative defense, the burden of proving which rests upon the defendant (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459, 472; Jenks v. Thompson, 179 id. 20; 25, 26), I cannot find that the verdict of the jury was contrary to the evidence.
I think, therefore, that the order setting it aside should be reversed, with costs, and the verdict reinstated and judgment entered thereon in favor of the plaintiff.