The views entertained by the general term were that the intestate himself was not so proven to have been chargeable with negligence as to-permit the court to withdraw that inquiry from the consideration of the jury, • nor to have taken upon himself his exposure to this risk as one of those attendant upon his employment. The case as then presented was considered,, therefore, to be clearly distinguishable from Kennedy v. Railway Co., 33 Hun, 457, where all the risks of the employment were open to observation. The open hatchway below, where the intestate herein was proved to have been working, was not within his immediate view, and could be discovered only by accident or special effort. The second trial was conducted with refence to these principles, modified in some respects, it may be, by the charge of the learned judge presiding. The defense consisted of different elements, one-of which was that the defendants were under no obligation to see that the space mentioned in the statement of fact was covered; that this was the usual way in which the decks were prepared for such work as was to be done; and that the deceased was guilty of negligence, and could not recover. These subjects were fairly and distinctly discussed in the charge, and the defendants accorded, by the rules declared, all that they were entitled to. The-learned justice said that it was the duty of the defendants, as had been previously decided by the general term, to provide a reasonably safe place upon which the deceased could work, from which the defendants could not be relieved unless the deceased himself was one of the persons who constructed the stool upon which he was standing, when he would probably be guilty of negligence in regard to its construction. He then discussed the evidence on the-subject, showing that the space through which the deceased fell was not covered, although it was customary to cover it; and he made the suggestion then, which was proper, that the deceased had a right when he went there to. suppose that it was covered. The question whether it was customary or not to cover the space as indicated was submitted to the jury, and also whether it. was made reasonably safe as a working place, with instructions that, if they found that it was reasonably safe, the defendants were entitled to a verdict, and if it was not safe, then it would be the duty of the jury to consider whether the defendants were guilty of negligence in regard to the accident.
The important question suggested by the defendants’ counsel, as to whether the deceased assisted in the construction of the stool, was also submitted to the jury, and they were instructed that, if he did, plaintiff could not recover. The defendants further claim that the deceased took the risk of the danger of his-employment. Upon that subject the general term bad expressed its opinion, as we have stated; and the learned judge said in his charge that, even though the deceased had not anything to do with the construction of the stool, if when he began his employment he saw that the space was open, and continued voluntarily in the employment, he undoubtedly- took the risk of that danger, and the plaintiff could not recover; and if he did not know it, then the question, would arise whether, under all the circumstances, he ought to have known it. It thus appears that the case was fairly and fully submitted to the jury upon *885the various questions necessarily involved, and, as already stated, with such proper instructions as was necessary. Defendants’ counsel, however, requested the court to instruct the jury that if the deceased was unable to see the open ■space into which he fell, he was guilty of contributory negligence in undertaking to work in such a position. It may be said that this proposition must be attributed to exaggerated zeal. It cannot be entertained for a moment. The defendants’ counsel also excepted to the instruction that it was the duty of the ■defendants to provide a reasonably safe place upon which the deceased could work. As we have already seen, that view of the law was declared by the .general term, and the exception is of no value. The defendants’ counsel excepts to so much of the charge as stated that it was no defense that any other longshore-men were guilty of negligence in the construction of the platform or otherwise. This exception is of no value, for the reason that it omits the qualification made by the learned judge by adding, “unless it can be shown that they were fellow-servants at the time of the construction.” The defendants’ counsel excepted to the qualification, and to the charge as given. Defendants’ counsel also excepted to so much of the charge as states, in substance, that if the deceased took no part in the construction of the platform or ■stool, that then tie could not be guilty of negligence in its construction, or chargeable with the negligence of any of the servants of the defendants; also that he could not be guilty of negligence in such construction, or chargeable with the negligence of any of the servants of the defendants, if he entered the ■employment after the platform was constructed. From the statements herein made of the chief features of the charge, it will at once suggest itself that these instructions as to the construction of the stool were not left unqualified for the consideration of the jury, for it was stated to them that if the deceased knew of the open space, or if under all the circumstances he was guilty of a want of reasonable care in not discovering the open space, or was chargeable with notice thereof, the plaintiff could not recover.
The learned counsel for the defendants has labored assiduously to bring the facts of this case within the adjudications to which he refers, declaratory of principles which, if applied, would absolve his clients; notably the cases of Stringham v. Hilton, 111 N. Y. 188, 18 N. E. Rep. 870; Webber v. Piper, 109 N. Y. 496, 17 N. E. Rep. 216; Hussey v. Coger, 112 N. Y. 614, 20 N. E. Rep. 556; Byrnes v. Railroad Co., 113 N. Y. 251, 21 N. E. Rep. 50,—the doctrines ■of which cases are that “ the master is not an insurer that all his servants shall perform their duty, and he performs his duty to the servant in this regard in providing a system of inspection, and in trusting its performance to competent hands. If, thereafter, such servants are guilty of negligence, the master is not responsible therefor to a co-servant. ” And, further, that “it would be •extending the liability of the master beyond any established rule to require him to oversee and supervise the executive detail of mechanical work carried on under his employment, and there is no rule of law which authorizes it. The risks arising to employes from the negligence and carelessness of fellow-workmen are incident to the service in all mechanical employments, and must be borne by the servant, and even with this limitation the field of the master’s liability is sufficiently broad to impose upon him most onerous obligations in the conduct of industrial enterprises.’! These cases, however, recognize the proposition that an employer must perform the duties which the law enjoins upon him before he becomes exempt from liability for injuries sustained in the ordinary and usual mode of prosecuting the work in hand. Here the question whether the defendants had discharged their duty was one which, under the evidence, w'as submitted to the jury. There was a question whether the stool was constructed in the ordinary mode, evidence having been given by one longshore-man that the space left uncovered it was usual to cover, the place itself in which the men were called upon to work being per se unsafe, and so much so as to cast upon the employer the burden of great vigilance. It must *886be said, also, that in this ease it did not appear conclusively that the rule of law could be applied which exempts employers from liability who had employed competent and skillful persons to make the necessary arrangements to carry on the work in contemplation. It is a fair inference that, the space having been improperly left open, it must be regarded as having been found by the jury as evidence of their incompetency. The error in the attitude of defendants’ counsel arises from his assumption, apparently, that whether the employer has provided a safe and proper place for the workmen or not, occasions no liability if he has employed competent men to do the work, provided the person injured has participated in the construction of any apparatus for the purpose of prosecuting the work, or have used it. These propositions go on pari passu together. This view, as we have seen, is erroneous. On the subject of the master’s liability in the respect suggested, see, also, Benzing v. Steinway, 101 N. Y. 552, 5 N. E. Rep. 449; Bushby v. Railroad Co., 107 N.Y. 379, 14 N. E. Rep. 407; Cullen v. Norton, 4 N. Y. Supp. 774; and Tendrup v. Stephenson, 3 N. Y. Supp, 882; and the general term opinion in this case. The preservation of the rule imposing the obligation of providing safe places for the workmen may be regarded as a sacred duty by the courts, and should prevail in every case where it can be applied. Indeed, it would seem to be just to require the employer, in all cases of dangerous employment, to prove that the person working was advised of the fact, and thus took upon himself the responsibility of safety. It is not intended, however, to apply such a rule in this case, but the seemingly reckless disregard of human safety making the business elements of life, and which require workmanship in dangerous places and under circumstances of great peril, calls for the intervention of more exacting obligations, with a view to better results in all respects. In this case we see no reason, however, why the judgment should be interfered with, and it should therefore be affirmed.
Van Brunt, P. J., and Daniels, J., concur in the result.