the Appellate Division, First Department, at the November Term. The following summary of the decision is given by the official reporter (54 App. Div., 284):

In an action to recover damages for personal injuries it appeared that the plaintiff was an experienced brakeman employed upon the defendant's railroad. There was evidence to the effect that on the occasion in question he was standing at the end of a stationary car waiting to couple it to a car which was moving slowly toward him; that the moving car held the link, and that just as he was about to insert the coupling pin in the drawhead of the stationary car he noticed that its drawhead was about four inches higher than the drawhead of the approaching car; that thinking he could effect the coupling with safety he placed his arm underneath the deadwoods of the moving car and lifted the link in order that it might enter the drawhead of the stationary car; in doing which he observed that the drawhead of the approaching car was loose and had a lateral movement of about a foot; that his fingers were caught between the under side of the link and the flange of the opening of the stationary car and his arm was drawn out and caught between the deadwoods and mutilated.

Evidence was also given that when there is a difference in the height of the drawheads the custom is to put the link in the higher drawhead. Held, That the plaintiff's complaint was properly dismissed;

That the lateral movement of the drawhead on the moving car had, so far as appeared, no connection with the accident, which was caused by the plaintiff's attempt to raise the link after he had seen the danger and had an opportunity to avoid it; in doing which he was not free from contributory negligence.

That, as the plaintiff did not, at the trial, refer to, or rely upon, the statutes requiring the equipment of freight cars with automatic couplers, he could not invoke their aid for the first time upon an appeal from the judgment dismissing the complaint.

NEGLIGENCE-DUTY OF MASTER, ETC.-The case of Eastland vs. Clarke, decided by the Court of Appeals in January, 1901 (165 N. Y. Rep. 420) gave rise to several points, as shown below. The court reversed the judgment of the Appellate Division in favor of the Defendant and ordered a new trial.

1. One, not in the regular employment of the master, who has been referred by him to his butler for instructions, and who has been directed by the latter to place wood in a cellar in which he had been but once before, which contained a depressed opening, of the existence of which he was ignorant, of which he was not warned and into which he fell, is not guilty of contributory negligence as a matter of law, but it is a question for the jury whether he acted with ordinary care under the circumstances where the cellar was so dark that he could not readily have seen the opening if he could have seen it at all, and an armful of wood which he carried obstructed his view of his footsteps.

2. In the absence of knowledge on the part of such servant that the place to which he was directed was dangerous, he had the right to believe it to be reasonably safe and he does not assume the risk of falling into an unprotected opening therein.

2. The master cannot escape liability upon the ground that if the accident were the result of any negligence it was that of the butler in leaving the well uncovered, and, therefore, that of a co-servant for which he was not responsible, since the butler was the alter ego of the master whose duty it was to have notified the servant of the existence of the opening.

4. Where the evidence is conflicting, the question whether the cellar was a safe place to work in, is for the jury. (Eastland vs. Clarke, 28 App. Div. 621, reversed.)

NEGLIGENCE ASSUMPTION OF RISK BY EMPLOYEE.-The case of Murray vs. N. Y. C. & H. R. R. R. Co. was decided adversely to the plaintiff.

In an action brought to recover damages resulting from the death of an engineer on the defendant's railroad, who, while leaning out of the side of his engine for the purpose of examining the machinery, was struck by a water plug standing about midway between the two main tracks, it appeared that the tracks were eight feet ten and a quarter inches apart and that the water plug, allowing for the swing of the engine, was within eighteen or nineteen inches of the side of the gangway of the engine.

The tracks at the place where the accident occurred might have been placed further apart, but there was no evidence that the water plug in question was not located in accordance with the best and most approved methods of railroading or that it was located in precisely the same place at which all other railroad companies placed similar appliances. Held, That the defendant was not negligent.

Semble. That as it appeared that the deceased had passed this water plug almost daily for twenty years, and that the accident occurred in broad daylight, when the deceased had full opportunity to see the water plug the view of which was unobstructed, it might properly be held as a matter of law that he assumed the risk. (55 App. Div. 344.)

NEGLIGENCE.—In the case of an injury to an employee from the breaking of a dozy and rotten mast of a derrick, it was held that the ignorance of the master is not an excuse to him, and that there is no assumption of such risk by the employee, thus:

In an action brought to recover damages resulting from the death of the plaintiff's intestate while in the employ of the defendant, in consequence of the breaking and falling of a derrick, it appeared that the mast of the derrick was broken in three or four pieces; that the exterior was apparently sound, but that the interior was powder posted and dry rotted to such an extent that a knife blade could be driven into it to the handle; that the derrick had been in use three and one-half years and that the mast was made of spruce timber which had been painted when green,

such treatment having a tendency to shorten its life and make it dozy and rotten within.

The derrick had remained in the place of the accident about four months; at the time it was placed in position the defendant's superintendent, who apparently regarded the duty of inspection as incumbent upon him, made an examination of the mast, stabbing it with a knife from the bottom to the top, and cutting out shavings, but did not bore into it or take any measures to ascertain whether it was dry rotted in the interior. This was the last time the derrick was inspected.

Held, That it was error to nonsuit the plaintiff;

That the defendant's ignorance of the defective condition of the interior of the mast did not relieve it from liability if such condition could have been discovered by a proper inspection.

That the plaintiff's intestate, who was employed about the derrick, did not assume the risk of the accident, as it did not appear that he had any knowledge of the defective condition of the mast or that it was discoverable by ordinary observation, or that it was his duty to make that inspection which alone would reveal its defective condition. (Jarvis vs. Northern New York Marble Co., 55 App. Div. 272.)

NEGLIGENCE IN THE USE OF AN ELEVATOR.-The Appellate Division, Second Department, at the November Term, rendered the following judgment:

In an action brought to recover damages for personal injuries, it appears that a building in process of construction for the defendants by independent contractors had almost reached completion; that the defendants, by their tenants, had taken possession of a portion of the building, and that two elevators, designated as No. 1 and No. 2, were operated under the control of the defendants' superintendent; that the plaintiff was a painter in the employ of an independent contractor, and that the defendants' engineer agreed with the plaintiff's foreman that the plaintiff should do some painting on the ninth floor of the elevator shaft; that it was arranged that the plaintiff should stand on a plank reaching from the floor entrance of the elevator on the ninth floor to the window sill in the space through which elevator No. 1 ran; that that elevator would not be operated, and that elevator No. 2 would be operated as little as possible; that one Cody, who was employed by the defendants to run the elevator, should shout a warning to the plaintiff before moving elevator No. 2, so that the plaintff would have an opportunity to avoid being struck by the counterweight which was at the tenth floor when the elevator was at rest on the ground floor; that on the occasion of the accident, Cody, without any warning, or without a timely warning, to the plaintiff, started the elevator for the purpose of carrying some men who came to see the defendants' engineer and superintendent, and that the descending counterweight struck and injured the plaintiff,-it was held that a verdict in favor of the plaintiff should not be disturbed, that it could not be said, as matter of law, that it was negligence for the plaintiff to place some reliance upon the arrangement made with Cody, and to assume that he would be informed in some way before the menacing counterweight would

be set in motion; that evidence that Cody had never operated an elevator before might be considered in determining whether he was negligent on the occasion in question, although negligence could not be predicated upon that fact of itself. (Bower vs. Cushman, 55 App. Div. 45.)

DUTY OF OWNER OF A BUILDING TO INDEPENDENT CONTRACTOR.— An owner of a building owes to an employee of an independent contractor doing work upon the building the duty to commit no act of affirmative negligence. He is not liable for any passive negligence, such as a failure to provide the employee of the independent contractor with a safe place in which to work. (Callan vs. Pugh, 54 App. Div., 545.)

NEGLIGENCE LIABILITY OF MASTER FOR INJURY RESULTING TO SERVANT FROM LATENT DEFECT IN APPLIANCE.-A master is not liable to a servant for an injury to the latter in consequence of a latent defect in an appliance, where the evidence shows that the material furnished by the master for the manufacture of the appliance, and out of which it was made, was proper; that there was nothing in its appearance to indicate inefficiency, and that it was made by competent and skilled workmen and was subjected to frequent and thorough inspection of such a character as to reveal any flaw or defect that could be discovered in that way. (Smith vs. N. Y. C. & H. R. R. R. Co., 164 N. Y., 491.)

NEGLIGENCE-FALL OF SCAFFOLD-LABOR LAW CONSTRUED.— Where a scaffold provided by the master for a servant's use falls, and no other cause of the fall is ascertained except as inferred from the fall itself, the fall is prima facie evidence of the negli gence of the master in an action by the servant to recover damages received in consequence thereof. Further, where the cause of the fall is otherwise ascertained, sections 18 and 19 of the Labor Law (Laws of 1897, chapter 415) enlarge the duty of the master, and extend it to responsibility for the safety of the scaffold itself, and thus far the want of care in the details of its construction. (Stewart vs. Ferguson, 164 N. Y., 553.)

NEGLIGENCE-FELLOW SERVANT-RISK OF EMPLOYMENT.--In an action to recover damages for personal injuries, where it ap pears that the plaintiff had been in defendants' employment for several months and had been directed by their foreman to remove loose pieces of rock that should be found along a bank so as to render a continuance of blasting safe, and while engaged in so

doing, a large stone, which had been thrown on top of the bank by a previous blast in the prosecution of the general work and had rested there until the accident, and which defendants had directed the foreman to remove, fell and striking the plaintiff caused the injuries complained of, a recovery cannot be sustained, since they were the result of a risk which plaintiff assumed as an incident to the employment in which he was engaged, and if the result of any negligence it was that of the foreman, a fellow-servant, for which the defendants would not be responsible. The cases of Perry vs. Rogers (157 N. Y. 251), and Capasso vs. Woolfolk (163 N. Y. 472), followed. Where the evidence in such an action tends to show that the path where plaintiff stood was about two feet wide and safe except from objects falling from above, whether he was guilty of contributory negligence in not having a rope tied about him, as it was claimed he was directed to do by defendants' foreman, in order to prevent his falling, is a question for the jury where he denies that any such direction was given. (Di Vito vs. Crage, 35 App. Div. 155, reversed; Di Vito vs. Crage, 165, N. Y. 378.)

NEGLIGENCE -SAFETY OF WORKING PLACE, CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK, WHEN QUESTIONS FOR THE JURY.-Where in an action for negligence it appears that a wide trench, thirty-one feet deep, had been excavated and thoroughly supported by timbers, one side of which for a distance of some. twenty feet ran along a chimney stack foundation which was twenty feet deep; that the trench had been carried down at an angle, leaving a "batter wall" to support the stack, and, in order to support it more thoroughly, narrow cuts three or four feet wide were made, starting from the bottom of the trench, running at right angles through the wall and extending upwards to within about a foot of the foundation and three feet under it, which cuts were filled in with piers of masonry as soon as made; that the earth between the tops of the cuts and the bottom of the foundation was hardpan and had become insecure from the action of water; that neither the sides nor top of the cuts were shored up or supported in any way; that the plaintiff, an employee of the defendant, was ordered by them to go down into a cut made the night before in which to place one of the masonry piers under the foundation, and level off the bottom, and while so doing the