App. Div.] Second Department, November, 1911. office on the 11th day of February, 1911, denying the defendant's motion for a new trial made upon the minutes. I. R. Oeland [E. Sidney Berry with him on the brief], for the appellant. Gilbert D. Lamb, for the respondent. JENKS, P. J.: I think that the judgment must be reversed and a new trial must be granted, for the reason that the verdict was against the weight of the evidence. The action for negligence is brought to recover damages for the death of plaintiff's intestate, who was at work for the contractors for the plastering in the defendant's incompleted building. The building had been erected and it had been inclosed. For the purpose of lifting the materials to the ten floors a temporary opening had been left in every floor, extending from a wall towards the middle of the floor, about 25 feet in length and about 5 feet wide. A part of these openings was occupied by a hodhoist. At the time of the casualty the floors were unfinished and the spaces between the beams thereof were filled in by brick arches, on which were placed sleepers, to which the flooring was to be attached, and the spaces between the sleepers had been filled in with dark-colored cinders or ashes to within an inch or an inch and a half of the tops of these sleepers. The intestate was employed to keep up the fires in certain movable stoves placed on the various floors to prevent the plaster from freezing. About 6 P. M. of an evening in January he and a fellowworkman went about that work. The only artificial light was given by two gasoline torches carried by them respectively. When upon to the east side of the building and passed with his 'torchin hand within one and a half feet of this opening. He took up a stove and in attempting to carry it to the west side of the building he tripped or stumbled and fell down the opening to his death. the ninth floor the intestate crossed from the west The negligence assigned is non-compliance with section 20 of the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415), as amended by chapter 192 of the Laws of 1899, which in part Second Department, November, 1911. [Vol. 147. provides: "If elevating machines or hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in height." It appeared that none of these openings was protected. The learned court instructed the jury in part, without exception, as follows: "As I have stated, the flooring at this time was not covered with any boards. At some places the sleepers projected an inch or an inch and a half, or perhaps a half an inch, above the ashes, and Rooney had been about the building, in various parts of it, and upon this ninth floor, at least upon the night or day in question. The hole was unguarded. There was no eight-foot guard about it, there was no guard of any kind about it, and Rooney had been in the building and about these openings which projected up through all the floors. So that if you find that the evidence in this case, whether the evidence of the plaintiff or the evidence of the defendant, is of sufficient weight to convince you that Rooney himself knew that the opening was unguarded, that the Statute had not been complied with, and also that the floor was in the condition which I have indicated, and then continued working there at his post, he then assumed the risk of falling into the hole in passing by it or over it, even though he might have been at the time exercising all care and not have been guilty of any contributing negligence. So upon this point I shall leave it to you, as a question of fact, to determine simply his knowledge. Did he at the time know the hole was unguarded at a place where the floor was in the condition as it has been described by the witnesses, with the sleepers being some inches above the ashes, so that in passing over that the foot might trip and a person be caused to fall? If he knew the fact and the condition, and continued to work there, then the law says not only the law of this State but the law of every State that I have been able to look at since this case was started that he assumed the risk of the employment." The court, as requested by the learned counsel for the plaintiff, charged: “I might ask your Honor to charge that the burden of establishing assumption of risk is on the defendant. The Court: Yes, the App. Div.] Second Department, November, 1911. burden is on the defendant, which means that when the case is closed the evidence as introduced in the entire case must satisfy you by a fair preponderance of the evidence accordingly, as I have already stated." And the court, upon request of the learned counsel for the defendant, also charged: "That it is not for the Jury to determine whether or not he was assuming the risk at all, but it is the charge of your Honor that if they find and believe from the evidence that he knew of this condition then, as matter of law, he did assume the risk and he cannot recover in this case." This instruction was not excepted to. I think that the evidence did not justify the conclusion that the plaintiff did not assume the risk. To quote from the opinion of GRAY, J., writing for the Court of Appeals in this case (194 N. Y. 32): “If the deceased knew of the opening and of the imperfect flooring, he must have appreciated the risk of a mis-step, when passing too close to the former." The evidence is that the intestate had been engaged in this particular work about four or five days. Conroy, one of the witnesses for the plaintiff, testifies that the work required the intestate to go upon every floor the laborers were working on, and they had worked upon this ninth floor; that the duty of the intestate required him to look after the stoves every day; that he would start in the morning at 8 o'clock and quit work generally at 5 o'clock; that such work would require him to be on the various floors at least twice a day in the forenoon and in the afternoon; that the work would have required him to be on this ninth floor each day while they were working there. Carlough, a witness for the plaintiff, testifies that the intestate was working there all that day from 8 until 6; that sometimes there were 6 to 10 stoves on each floor according to the plastering done; that he saw the intestate on some of the floors that day in the daytime and that the witness could see the slit in the floor every time he was on the floor; that the intestate would go around to all of the stoves on the floors, and that the witness could not help seeing the opening that day on every floor. He further testifies that the intestate would go around to all of the stoves on the floors; that if the stoves were on one side of the building and then on the other, the intestate would have to cross over the building Second Department, November, 1911. [Vol. 147. to go to them. He also testifies that he, with the intestate, was going up and down the floors working on the day of the casualty; that they were engaged all day in looking after the stoves; that they would go on various floors, whichever they thought there was a stove on that "would be needed to be fixed;" that he went all over the building, and that the intestate was with him at some time, and that the plaster was on each floor a day's supply on each of the ten floors. It would seem to me that the duty of the intestate to visit these various floors from time to time in order to keep alive the fires in these stoves "necessarily, required him to know the conditions of each floor," to quote the language of GRAY, J., in the opinion of the Court of Appeals. And it must be remembered that the evidence is not that the intestate stepped into this opening as if it was a pitfall unseen, but that he stumbled or tripped and then fell into the opening - an occurrence consistent with his knowledge of the existence thereof. The judgment and order must be reversed and a new trial must be granted, costs to abide the event. THOMAS, CARR and WOODWARD, JJ., concurred; RICH, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event. MICHAEL PRATT, Respondent, v. HENRY D. MCKEE and WILLIAM W. BEERS, Doing Business under the Name of EASTERN CONSTRUCTION COMPANY, Appellants. Second Department, November 17, 1911. Master and servant Employers' Liability Act - defective noticeinjury by fall of derrick - fellow-servant acts not involving superintendence. A notice under the Employers' Liability Act which merely states that the plaintiff while employed by the defendant on a certain day was directed to go to the top of the mast of a derrick then being used by your company on a job at or near the corner of Flushing and Kent avenues, Brooklyn, for the purpose of assisting in moving the steel boom of said App. Div.] Second Department, November, 1911. derrick from one side of a guy rope supporting said derrick to the other side of said guy rope; that while engaged in this work said derrick fell over" and injured the plaintiff, is insufficient in that it does not properly state the physical cause of the injury. Where the fall of the derrick was caused by the failure of an employee to fasten down the boom of the derrick after having been told to do so by the superintendent, the omission was a mere detail of the work and not a failure in an act of superintendence if the employee was given no discretion to determine whether or not the boom should be fastened. Even if it be assumed that a direction to the plaintiff to go the top of the derrick given by the person who had failed to secure the boom as ordered by the superintendent was an act of superintendence on his partwhich, it seems, it was not under the circumstances the direction was improper only because of the previous negligence of the plaintiff's fellowservant in disobeying the instruction to fasten the boom and for that failure the master is not liable. HIRSCHBERG, J., dissented. APPEAL by the defendants, Henry D. McKee and another, doing business under the name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of October, 1910, upon the verdict of a jury for $7,100, and also from an order entered in said clerk's office on the 10th day of October, 1910, denying the defendants' motion for a new trial made upon the minutes. E. Clyde Sherwood [Joseph F. Murray and Frank V. Johnson with him on the brief], for the appellants. Frederick N. Van Zandt, for the respondent. BURR, J.: This case has been twice tried and has once before been under consideration by this court (Pratt v. McKee, 135 App. Div. 752). The circumstances attending the accident from which plaintiff's injury resulted were stated in the opinion then delivered. The evidence upon the second trial showed no material difference therein, and it is unnecessary to restate them. Upon the first trial the notice which was served in attempted compliance with the provisions of the Employers' Liability Act was excluded for insufficiency in stating the cause of the injury. Although we reversed the judgment of nonsuit which was then under review, we did not base our reversal upon error in this |