Margaret Laffan, as Administratrix, etc., of William Laffan, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent

Margaret Laffan, as Administratrix, etc., of William Laffan, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent. Negligence — a foreman of a street railway company crushed., between a car and a partition in the car storage barn — assumption'of the risk. A man employed by a street railway company as a foreman in its car storage barn, and who was thoroughly familiar with the construction of the building, upon being notified that a car, which was being taken into the barn, had accidentally stopped within three or four feet of a partition or wall of the barn, directed that leaders be.attached to the car and that it be moved on. When, the car did not'move he walked forward in the space between the Car and the partition; as he did so, the car móved, crushing him to death. Held, that the railway company was not liable for the damages resulting from the foreman’s death, upon the theory that the car barn was of faulty construction and'that it did not furnish him with a safe place in which to work, as it was evident that the foreman knowingly assumed the risk which was involved in undertaking to go into the space between the car and the partition. Appeal by the plaintiff, Margaret Laffan, as administratrix, etc., of William Laffan, deceased, from an order of the Supreme Court, made a't the New York Trial Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1905, setting aside the verdict of a jury in favor of the plaintiff, and granting a new trial of the action. David Keane, for the appellant. Bayard H. Ames, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: This is an appeal from an order setting aside a verdict in favor of the plaintiff in an action brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused through the negligence'of the defendant..' The intestate was in the employ of the defendant, working .about a' barn in which cars were stored. The barn was situated on the east side of Amsterdam avenue, between One Hundred and Twenty-eighth and One Hundred and Twenty-ninth streets, and cars requiring repairs entered it over a track. On February 11, 1902, the intestate was, and for about two years before had been, a foreman at work at this barn. • A car was entering the barn when it lost its momentum and came to a full stop on the curve leading from Amsterdam avenue into the barn. The car was about forty feet long. When it came to' a stop it was three or four feet away from a partition or wall of -the barn. The plaintiff’s intestate was notified of this situation and he went out to direct the further movement of the car. He gave orders for leaders to be attached to the platform of the car and when they 'were adjusted he gave instructions to go ahead, but the car did not move. He then walked forward in the space between the car and the partition, and as he did so the car moved and he was crushed to death.- * ' The. only ground upon which the plaintiff insists that she is entitled to a recovery is that of faulty construction and of negligence of the defendant in not furnishing a safe place for the intestate to work in ; but it is quite apparent that he knew all about the situation and that he assumed the risk of his own action in undertaking to go into the space between the car and the partition. He undoubtedly did not suppose the car would move, but that was a risk he took upon himself. Cars requiring repairs were constantly run into this barn and the, plaintiff’s intestate must have known all about the condition and situation of such cars. I do not think it can be said to be negligence on the part of the defendant that it did not provide for such an extraordinary occurrence as that a car should stop on a curve and that one of its employees in the effort to move it into the barn should put himself in a condition in which he could be crushed between the' car and some part of the building. But be that as it may, it is obvious that this intestate knew everything about ,the situation, and that he acted in view of that knowledge and condition, taking the responsibility upon himself. I think' the order should be affirmed,, with costs. O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred. Order affirmed, with costs. ■