This action is brought in pursuance of the Employers’ Liability Act to recover for damages claimed to have been sustained - by the plaintiff in falling through a hole in the floor of defendant’s manufactory where she was at work.
The defendant, a domestic corporation, owns and operates a kniting mill at Olayville, in this State; On July 20, 1908, the day of the accident, the plaintiff, then a woman some sixty-six years of age, was employed by the defendant in its said factory as a winder. She commenced, her employment, for the second time, on April 20,1908, and continued it to the time of receiving her injury, working on the same machine for some three months prior to the accident.
About three or four weeks preceding July 20, 1908, a brasher machine, located on the same floor and in the neighborhood of the machine on which the plaintiff was employed, had been removed, and its removal left exposed in the floor a hole some four or five inches wide and six or seven inches long, through which a belt, for power purposes, had been run from the floor below to the brasher machine. The plaintiff had occasion to go near the hole many times during the course of her employment, although she testified she was unaware of its existence. On the day in question she left her machine for the purpose of getting -some bobbins and a drink of water, and on her way stepped into this hole, receiving injuries to her leg.
The other witnesses on behalf of the plaintiff testified the hole was plainly visible. and that they observed it day by day as they passed it. The witness, Mary Fleming, testifying for the plaintiff, said that in a conversation between the plaintiff and herself shortly after the accident, the following occurred : “ I asked her if she had *385known that the hole was there and she said yes, she had, but didn’t think when she left her machine to go to get the drink of water; she didn’t think of it; but she had known the hole was there.”
The hole had been in existence for several weeks; the plaintiff passed it several times each day, and if the testimony of Mary Fleming is to be believed the plaintiff knew the hole was there, but did not have its presence in mind at the time she was injured.
The court, in submitting the question of assumption of- risk to the jury, made this statement: “ The servant, practically, agrees with the master while in the discharge of the duties that they are called upon to discharge, and in the performance of the labor and the work to assume those obvious risks and dangers that exist in the employment. The servant never assumes those risks of the service until the master has done its duty by the servant in seeing to it that a reasonably safe place is provided for the discharge of those duties and in seeing to it that it remains in a reasonable condition of safety. In other words, in this case the obligation rests upon the defendant before it can assert that as a defense to this action to see to it that it has discharged the duties and obligations to the plaintiff that rest upon it.”
I think this was not a correct statement of the law. If the risk is an obvious one, plain to be seen by the employee and due to the omission of the employer, the employee has no right to assume that his master has performed his duty and made the place safe. It is obvious that the master has not performed his obligation to the servant and the latter performs his work knowing of this delinquency. He cannot then, if injury results by reason of this apparent, plain omission of his employer, relieve himself from assuming the risks upon the ground that the master did not perform his duty. (Knisley v. Pratt, 148 N. Y. 372; Dowd v. N. Y., O. & W. R. Co., 170 id. 459 ; Hurley v. Olcott, 134 App. Div. 631, 637 et seq.)
In the former case the defendant had failed to protect the cogs of a machine on which the plaintiff was at work by suitable guards as required by the Factory Act. The absence of the guards was obvious, known to the plaintiff, and yet she continued working on the machine. The Court of Appeals held that the plaintiff assumed the obvious risks, although the defendant had violated the law in *386failing to guard properly the cogwheels and reversed a judgment for the plaintiff. The principle of that case has mot been disturbed by the Employers’ Liability Act. (Laws of 1902, chap. 600; since revised into Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.) The question of assumption of risks is for the jury (Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416); but if the jury find the servant is injured by reason of a defect or risk which he knows all about he cannot recover of his employer.
The principle, so often stated in general language that the risks a . servant assumes are only those occurring after, the master has already performed his duty has no application to obvious risks'—those the. servant knows all.about. (Rooney v. Brogan Const. Co., 194 N. Y. 32, Bria v. Westinghouse, Church, kerr & Co., 133 App. Div. 346.)
In the former case the defendant’s ¿ounsel asked the court to charge the jury: “ ‘ That if they find that' he (the deceased) knew the hole was there, and that he knew it was unguarded and knew the condition of the flooring around the hole, and exercised all'ordinary care to-have known it, then, if he knew thosé facts, as- matter of law, they must' find he assumed the risk and cannot recover.’ The court ruled: 11 charge that with the qualification, however, that he must have appreciated all the dangers incident to that condition; and if they find that lie did know those facts and appreciated all the dangers incident to" these facts, then, as matter .of law, he assumed the risk,’ ” to which exception ivas taken. The court held that the defendant was entitled to the charge as requested, and the qualification should not have been embodied in it. The court added: “ Precisely why it was necessary to show that the deceased, when knowing the dangerous conditions under which his work had to be perfonbed, must also have appreciated the danger incident thereto (which is only to say possible from such an occurrence) is difficult to understand. To appreciate the danger incident to a condition of things signifies that the danger is recognized and that possible'accidental, consequences are justly estimated. But knowledge of the unguarded opening and .of the condition of the flooring about it, necessarily involved recognition of the fact that tripping hear and falling into the opening might be attended by results of a more or less fatal nature.”
Exception was taken to the charge in the case we are- now' con*387sidering, as follows: “ The defendant excepts to that portion of your Honor’s charge in which you say to the jury, in substance, that the servant never assumes the obvious and apparent risks until the master has performed its duty.”. The court, in' response, stated: “ I will modify that charge, by saying .that the servant has a right to assume that the master has discharged its duty to the servant,” to which exception was taken. The modified instruction contains the same error as the original charge.
In this case the jury might have found that the plaintiff was aware of this hole and should have observed it and, hence, the rule laid down by the court was incorrect.
In the foregoing .observations we are only considering the erroneous statement of the. law made by the trial judge. We certainly are not holding that the case should have been taken from the jury.
Dr. Scully was sworn by the plaintiff and testified to the extent of the injury and the treatment he prescribed. The defendant thereupon caused Dr. Dewing to be called as a witness in its behalf and endeavored to show the examination he made of the plaintiff a considerable time after and not in connection at all with the visits, made by Dr. Scully. This evidence was objected to under section 834 of the Code of Civil Procedure, and was excluded, and I think properly so. (Hennessy. v. Kelley, 55 App. Div. 449.)
Furthermore, no proper exception' was taken to the exclusion of this testimony.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred (Kruse, J., in result, in separate memorandum), excépt McLennan, P. J., . and Hobson, J., who dissented in a memorandum by McLennan, P. J.