The injury of which the plaintiff complains occurred at the yard of the Erie Railway Company, on Louisiana street, in the city of Buffalo. The deceased was in the employment of the defendant, and was engaged in coupling cars. One car had been *511run off upon a track and left standing. When the next car was “ kicked” off, it approached the standing car at the rate of from "three to four miles an hour. In order to couple the two cars, it was necessary that the coupler should step in between them while the moving car was advancing, and couple the two at the instant •of contact. This the deceased attempted to do. There was an •open ditch under the track, six or eight inches deep and about the same in width, the sides of which were perpendicular, and made by two ties laid six or eight inches apart. It happened that the point at which the two cars came in contact was directly over the ditch, and as the intestate advanced with the moving car and .stepped in between the two to put in the ’ coupling pin, his foot was caught in the ditch so that he could not extricate himself and he was run over and killed. The ditch was constructed some years before the injury, for tho purpose of draining the track. It was uncovered and plainly visible. There was a conflict of evidence as to whether it was practicable to construct a covered ditch at that point, owing to the lowness of the surface of the ground ; whether a covered ditch would have answered as well as an open one for the purpose of drainage ; and whether, if covered with wood, it would not have been more unsafe than an ■open drain, by reason of the liability of its covering to give way from decay or other causes and be broken in.
Of the exceptions argued by counsel, it will be -necessary to notice only some of those which relate to the char'ge.
The judge charged the jury that if they should find that the ditch was unsafe or dangerous, the negligence of the defendant was established. We think the exception to this was Well taken. ‘To establish negligence it was necessary to show that the ditch was an improper or unfit construction, as well as a dangerous one. It was not shown to be dangerous or unsafe except by reason of its being uncovered, and there was a- question upon the evidence whether it was not only prdp'er but necessary to keep the ditch open in order to drain the track. The true rule is that the master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master ; and this negligence may consist in the employment of unfit and incompetent servants and agents, or in the furnishing for the work to be doné, *512or for the use of the servant, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied. (Wright v. The New York Central R. R. Co., 25 N. Y., 562, per Allen, J., p. 565, and cases there cited by him; Laning v. N. Y. C. and H. R. R. R. Co., 49 id., 521, 528.) In these respects, the master is hold to the exercise of ordinary care only. (Leonard v. Collins, 70 N. Y., 90.) Yet the learned judge, .adhering to the position taken by him in the portion of his charge already referred to, subsequently declined to charge that the defendant was not guilty of negligence if, as a matter of judgment and with due care, he used an uncovered instead of a covered ditch, upon the theory, honestly entertained, that it was the best. And he further charged as follows : “If the defendant used care in the selection of the kind of ditch employed, and after duo inquiry employed an uncovered ditch because, after inquiry, ho had satisfied himself that it was safer and better than a covered ditch, yet if the jury should find that he was mistaken in this respect, and that, in fact, a covered ditch was safer than an uncovered one, the use of the uncovered ditch would be an act of negligence for which the defendant would be responsible.” Thus, the defendant was held liable for an error of judgment, although he exercised due care in determining the mode of constructing the ditch. The charge was a departure from the true rule.
But if the drain was so defective as to constitute negligence on the part of the defendant, the evidence is that the defect was patent and that it was known by the deceased, or he had ample opportunity to know it, he having been employed in the yard several months, and the open ditch having been there during the entire period of his employment. He is, therefore, to be regarded as having assumed the risks incident to his employment growing out of the existence of the ditch and the mode of its construction, so far as they were apparent. (Gibson v. Erie R. W. Co., 63 N. Y., 449; Mehan v. Syracuse R. R. Co., 73 id., 585; De Graff v. N. Y. C. and H. R. R. R. Co., 3 N. Y. S. C. R., 255.) The judge declined to charge that upon the evidence it is to be presumed that the deceased knew of the existence of the ditch, buf he left it as a question of fact to the jury. In these respects we think he erred. The plaintiff should have been nonsuited on this ground.
*513The judgment should be reversed and new trial ordered, costs to abide event.
Talcott, P. J. and Hardin, J. concurred.Judgment reversed aud a new trial ordered, costs to abide event.