Mary Garety, as Administratrix, etc., of Francis Garety, Deceased, Respondent, v. David H. King, Jr., Appellant

Mary Garety, as Administratrix, etc., of Francis Garety, Deceased, Respondent, v. David H. King, Jr., Appellant. Jiegligence— an employee hilled by falling through a skylight upon a snow-covered ■ roof—knowledge by the employee of its existence-—distinction between the risks of the employment and contributory negligence. Upon, the trial of an action brought by an administratrix of an employee to recover the damages resulting from the death of her intestate, who, after having been ordered by his employer to. go upon a snow-covered roof and clean it, fell through a skylight and was killed, it was considered hy McLaughlin and Patterson, JJ., that it was erroneous for the court to limit a request of the defendant that the jury be instructed that the defendant was. not liable if the employee “knew this place was there or should have known it,” by adding “and in any way through any negligence on his own part went through the skylight,” as, if the employee knew of the existence of the skylight and the danger of working on the roof by reason of it, he assumed the risk of falling through it. Semble, that there is no necessary connection between- the risks of the employment which an employee assumes and his contributory negligence. Van Brunt, P. J., dissented. Appeal by the defendant, David H. King, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 19th day of April, 1897, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 23d day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes. Julien T. Davies, for the appellant. Nelson Zabriskie, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: This action was brought to recover damages resulting from the death of plaintiff’s intestate, caused by the alleged negligence of the defendant. Upon the former- trial the plaintiff recovered a judgment, which was reversed by this court (9 App. Div. 448), and a new trial ordered, because the learned justice in his charge to the jury “ virtually eliminated from the case the entire question of the assumption of the risk, and made that issue identical with the one relating to contributory negligence.” Upon the second trial plaintiff again had a verdict, and, from the judgment entered thereon, ■defendant appealed. The facts presented are substantially the same as those presented on the former appeal, and it is, therefore, unnecessary to refer to them at great length. They are briefly these: The intestate lost his life by falling through a skylight in the roof of a building upon which he was at work. He had been at work for the defendant for some little time prior to the day of the accident, in a room which was lighted by the skylight in question. On the day preceding the accident there was a heavy fall of snow, and the morning following tké deceased, with others, was directed to go upon this roof and remove the snow that had fallen thereon, and while thus engaged he, in some Way which the evidence does not disclose, fell through the skylight and was killed. ■ The principle of law applicable to and controlling upon us in disposing of the question presented was declared by this court upon-the former appeal. It is now the laW of the case. We then held that, upon all the evidence, a proper-case was presented for the jury upon the question of the defendant’s negligence in failing to furnish a safe place for the. deceased to work, as well as upon the question of deceased’s contributory negligence. It is, therefore, unnecessary to consider,., at this time, either of these questions. They were properly submitted to the' jury, and the judgment would have to be affirmed, except for the fact that the learned justice inadvertently committed the same error that was committed at the first trial.. One of the vital facts to be .determined by the jury, and upon which the plaintiff’s right to recover depended, was whether the existence of this skylight and the danger of going upon the roof by reason of it, was known to the deceased. If it was, then the danger of falling through it was a risk which the deceased assumed,, and for the injury .sustained by plaintiff no liability attached to the defendant. There was conflicting evidence upon that subject which would have justified, the jury in finding either wav; The defendant’s counsel asked that the jury be instructed that “if Garety knew that this place was there or should have known it ” (referring to it as it existed), then the defendant was not liable. That was a proper request, and the jury should have been so instructed. The learned judge, however, instead of charging as requested) modified the request by adding; “ and in any way through any negligence On his own part went through the skylight.” And he so instructed the jury. We think tliis Was error. He might just as well have said to the. jury if the deceased was free from negligence,, then he did not. assume the risk of working at a place known to him to be dangerous. It is too well settled to require the citation of' authorities to sustain the proposition that a servant, when he enters the employment of the master,, assumes the apparent and obvious risks of the work in which he is engaged, , as .well as those risks which he may disc'over by ordinary care and observation. Thus Garety, when he accepted from or while he continued in the employment of the defendant, if he knew of the existence óf the skylight and the danger of working on the roof by reason of it, assumed the risk of. falling 'through it. This was the risk he assumed, nothing more and nothing less, and it in no way depended upon the question of whether he was negligent or not. His assumption of the risk existed, if at all, irrespective of the question of his own negligence. The risk assumed by, and the contributory negligence of an employee, are two separate and distinct subjects. They are not necessarily dependent upon or in any way connected with each other. The learned justice, therefore, in modifying the defendant’s request and instructing the jury as. he did, in effect withdrew from the jury the question of the assumption of risk by the deceased, by making that issue identical to the one relating to contributory negligence. It was an erroneous instruction as to the law, and that it influenced the jury sufficiently appears from the verdict rendered. The judgment and order appealed from . must be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, J., concurred; O’Brien and Ingraham, JJ., concurred in result; Van Brunt, P. J., dissented. Judgment and order reversed, new trial ordered, costs to appellant to abide event.