(dissenting). The evidence in this case discloses facts which, prior to the enactment of the Labor Law, would, under controlling authorities, show an assumption of risk as a matter of law. The learned trial justice seems to have set the verdict of the jury aside upon this ground. The question of assumption of risk is, however, no longer a question of law, but is to be determined as a question of fact “ subject,” as the statute declares, “ to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.” Such being the provision of the statute, it seems to me that the court below had power to entertain a motion to set ¿side the verdict rendered in favor of the plaintiff on the ground that it was contrary to the evidence.
If this court is satisfied, from a review of the evidence, that the verdict of the jury was contrary to the evidence, it is required to affirm the order appealed from, regardless of the ground upon which the order was made in the court below. Under section 202 of the Employers’ Liability Law *88(Laws of 1909, chap. 36; Laws of 1902, chap. 600, § 3), the employee no longer assumes the risk as a matter of law; but he may assume it as a matter of fact and, therefore, the question should be submitted to the jury for determination. Where a verdict in such a case is contrary to the evidence, it may be set aside, as in any other case. Baker v. Empire Wire Co., 102 App. Div. 125, 129; Vaughn v. Glens Falls Portland Cement Co., 105 id. 136, 139; Kellogg v. New York Edison Co., 120 id. 410; Galle v. Dunn, 127 N. Y. Supp. 1089; Gombert v. McKay, 201. N. Y. 27.
These cases clearly show that, where the evidence establishes that an .employee continues in the service of his employer after knowledge of the danger, a verdict for the employee will 'be set aside as contrary to the evidence. These authorities I regard as controlling upon us. Nor is the question clarified by declaring that continuing in employment with knowledge of the danger does not constitute assumption of risk as a matter of fact. If it is to be held that the doctrine of assumption of risk under this statute does not exist, then the cases cited above have all been incorrectly decided and the use of the expression “ assumption of risk ” in the statute is inexplicable. I do not think that _ these cases can be satisfactorily disposed of by the assumption, contained in the controlling opinion, that “ it may be * * * 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 would follow that, as matter of fact, he must have assumed the risk.” If it is not to be held that assumption of risk under this statute has been abolished, then the doctrine should be at least capable of definition. If continuance in employment after knowledge of the danger does not constitute an assumption of the'risk, then what else is necessary in order to prove that an employee assumed the risk? It is a simple matter to dispose of the whole question by saying that it is to bé “ determined by the jury from the facts and circumstances of the case and there must 'be something more shown affirmatively than that the plaintiff remained in the employment with knowledge of the defect.” *89This, however, seems to me to avoid rather than answer the question. What “ facts and circumstances ” in addition to proof of continuance of employment with knowledge of the danger must be sho'wn in order to constitute assumption of risk as a matter of fact? If the courts adopt the view that an employee may assume the risk under this statute, but that the elements which constitute assumption of risk are incapable of statement or definition, they in effect hold that, regardless of the evidence, the verdict of the jury upon this issue is final. The adoption of this view renders meaningless that provision of the statute which provides that the verdict of the jury upon this issue shall be subject to the usual power of the court to set aside the verdict as contrary to the evidence.
The evidence in the case established, without contradiction, that the plaintiff continued in the employment of the defendant, with full knowledge of' the danger incident to the work, and that the employer not only did not promise to repair the defect or remove the danger, but distinctly let him understand that he would not do so.
Under these circumstances, the verdict of the jury was contrary to the evidence and was, therefore, properly set aside by the court below.
Order setting aside verdict reversed, and judgment entered in favor of plaintiff.