1919.] Dissenting opinion, per CHASE, J. [225 N. Y.] sufficient so that the truck instead of being along the curb as it was when the conversation mentioned took place was at or upon the defendant's track. The front part of the truck was at least sixteen feet from the curb. The horses were all in the center of the street along the defendant's car tracks. There is no claim that either of the parties hereto were unlawfully occupying the public street. Upon the facts disclosed neither had the right to use the street to the exclusion or injury of the other. The use of it by each was subject to reasonable use by the other. It is not necessary or desirable to discuss the rights of the parties in case either had attempted to assert and enforce its alleged rights as against the asserted and alleged rights of the other. Their apparent relation to each other on the day of the accident was one of mutual helpfulness. The purpose of the wrecking crew in accompanying the plaintiff's employees so far as appears was to protect the defendant's property from injury. So far as they were assisting the plaintiff their service was voluntary and gratuitous. There was no express contract between them. There was no implied contract except that reasonable care would be exercised in whatever was actually done or undertaken by either. The defendant's employees had lifted the wires to permit the plaintiff to pass under them when it first came upon Bay street without asserting any claim to be paid therefor and remained to perform gratuitously any service that became necessary for the care of the defendant's property and the convenience of the plaintiff. That there was no necessity for lifting the wires generally along the street is shown by the fact that the plaintiff continued along the curb line without meeting any obstruction for three or four hundred feet on Bay street to the height of ground near where the accident happened. The conversation that we have quoted consisted principally of expressions [225 N. Y.] Dissenting opinion, per CHASE, J. [Jan., of opinion. That the plaintiff's foreman did not wholly rely on the opinion of the defendant's foreman is apparent from the conversation as given by him. He consulted with his drivers and concluded to proceed. The statement of the defendant's foreman amounted to an expression of opinion that the plaintiff could proceed safely if he would keep to the right, and it was accompanied by a statement in substance that he would raise the wires if it at any time became necessary. The representative of each party was fully aware of the danger of coming into contact with a live wire. It cannot be assumed from the record that the members of the wrecking crew had a superior knowledge in regard to handling the truck with its heavy load to that of the plaintiff's foreman and his associates who had been engaged for years in the trucking business. It required from ten to fifteen minutes to raise the wires in one place. It could not be done from time to time as the truck was moving. The necessity, if any, for raising the wires had, therefore, to be determined in time to stop the truck and wait until the wires were raised before proceeding further. When the truck started it did not move rapidly. It seems to have been under full control. As it proceeded danger of contact with the live wire must have been apparent, but there does not appear to have been any effort to stop it before the accident to the horses which cut off the propelling power. It is quite evident from the testimony that if the movement of the truck had been closely watched and the plaintiff's drivers had proceeded very slowly around the curve and past the tree, the truck could have been stopped on signal from the foreman the instant danger was imminent. In that case the defendant's workmen were there to lift the wire at the place of immediate danger and permit the truck to continue as it did after the accident along the curb to the place of destination. 1919.] Statement of case. [225 N. Y.] I am of the opinion that there is no justification for the assumption by a majority of the court expressed in words as follows: "We think that there is a fair question of fact for the jury as to whether the defendant's servants were not negligent in stating that they could and would lift the wire if danger became imminent and in inviting the plaintiff to drive on when as they now say that was an impossible thing for them to do. Whether there was danger or not was a matter of which they had knowledge and of which the plaintiff's servants had no knowledge." The judgment of the Appellate Division should be affirmed, with costs. HISCOCK, Ch. J., CARDOZO and POUND, JJ., concur with ANDREWS, J.; COLLIN and CUDDEBACK, JJ., concur with CHASE, J. Judgment reversed, etc. FRANK GILHOOLEY, Appellant, v. HENRY P. BURGARD, Respondent. Master and servant negligence action under Employers' Liability Act erroneous reversal by Appellate Division of judgment for plaintiff on ground that defendant was not guilty of negligence as matter of law effect of reversal of decision of Appellate Division by Court of Appeals. 1. Upon examination of the evidence in an action for negligence brought by a servant against the master under the Employers' Liability Act, held, that a question of fact was presented for determination by a jury as to the actionable negligence of the defendant in the method adopted for doing the work in question; as to whether or not the plant was defective, in that there existed on the part of defendant a failure to supply proper apparatus and adopt such measures as would reasonably guard against an obvious danger which might arise from the method adopted, and that the Appellate Division was in error in determining as matter of law that the defendant was not guilty of negligence. 2. The Appellate Division having reversed the judgment of the Trial Term solely upon the ground that plaintiff had failed to estab [225 N. Y.] Points of counsel. [Feb., lish actionable negligence on the part of the defendant, the determination was equivalent to an express reversal on the law and affirmance on the facts. The conclusion of this court that the reversal upon the law was error leaves the facts found by the jury favorable to plaintiff, unaffected by the order of reversal. Gilhooley v. Burgard, 175 App. Div. 911, reversed. (Argued January 9, 1919; decided February 4, 1919.) APPEAL from a judgment, entered October 24, 1916, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint on the ground that the plaintiff failed to show actionable negligence in an action to recover for personal injuries. The facts, so far as material, are stated in the opinion. Thomas Woods for appellant. The defendant was guilty of negligence causing plaintiff's injuries. (Donohue v. East River M. & L. Co., 224 N. Y. 149; Maloney v. Cunard Steamship Co., Ltd., 217 N. Y. 278; Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; 185 N. Y. 556; Connolly v. Hall & Grant Const. Co., 192 N. Y. 182; English v. Milliken Bros., Inc., 132 App. Div. 501; McGlynn v. Pennsylvania Steel Co., 144 App. Div. 343; Tamaseric v. Beckwith, 145 App. Div. 78; Baccelli v. New England Brick Co., 138 App. Div. 656; Palin v. Cary Brick Co., 133 App. Div. 483; Finklestein v. Kramer, 133 App. Div. 565; 197 N. Y. 594; Pepe v. Utica Pipe Foundry Co., 132 App. Div. 458; O'Brien v. Buffalo Furnace Co., 183 N. Y. 317; Doing v. N. Y., O. & W. Ry. Co., 151 N. Y. 579; Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459; Guilfoyle v. McDermott, 146 App. Div. 900; 205 N. Y. 557; Moon v. Coon Const. Co., 216 N. Y. 178.) The plaintiff was not guilty of contributory negligence and did not assume the risk. (Donohue v. E. R. M. & L. Co., 224 N. Y. 149; Maloney 1919.] Opinion, per HOGAN, J. [225 N. Y.] v. Cunard S. S. Co., 217 N. Y. 278; Seyford v. Southern Pacific Co., 216 N. Y. 613; Robinson v. Ocean S. S. Co., 162 App. Div. 169; Boyle v. Degnon-McLean Const. Co., 47 App. Div. 311; Tully v. N. Y. & T. S. S. Co., 10 App. Div. 463; 162 N. Y. 614; Caboni v. Gott, 149 App. Div. 440; Thompson v. Levering & Garrigues, 155 App. Div. 554; Graves v. Stickley Co., 125 App. Div. 132; 195 N. Y. 584.) H. D. Bailey for respondent. It appears from the evidence in this case that the plaintiff was a man of vast experience in the operation of the dredge, including the work of removing the crane; that his injuries were sustained because he did not take ordinary precautions for his own safety, and that he assumed the risk. (Duke v. American Museum, 157 App. Div. 640; Hammond v. Union Bag & Paper Company, 151 App. Div. 776; 3 LaBatt on Master & Servant, § 925; Earl v. Clyde S. S. Co., 103 App. Div. 21; Watts v. Beard, 18 App. Div. 243; Bagley v. Consolidated Gas Co., 5 App. Div. 432; 160 N. Y. 695; Ludlow v. Groton Bridge Company, 11 App. Div. 452; Ozogar v. Pierce, 134 App. Div. 800; Brust v. Perkins Co., 113 App. Div. 633.) There was no defect in the condition of the ways, machinery or plant, and no negligence of a superintendent or person intrusted with authority over the plaintiff. (Gmaehle v. Rosenberg, 178 N. Y. 147; Simpson v. Foundation Company, 132 App. Div. 375; Vogel v. American Bridge Co., 180 N. Y. 373; Quinlan v. Lackawanna Steel Co., 107 App. Div. 176; Hope v. Scranton, 120 App. Div. 595.) HOGAN, J. The defendant was engaged as a contractor on barge canal work in the erection of a dam and locks on the Oswego river at or near Minetto, Oswego county, some few miles south of the point where the river empties into Lake Ontario at the city of Oswego, |