Watson v. Brooklyn City Railroad , 35 N.Y.S. 1039 ( 1895 )

Per' Ouriam.

Wé think the judgments dismissing the complaint herein should be affirmed. Plaintiff sued for damages -for injuries to himself and his horse, alleged to have been received while driving over a temporary switch, the rails of which were so laid, as he alleged in his complaint, that they “ were hazardous and dangerous to drive a horse across.” As to the defendant, the Brooklyn City Railroad Company, it was plain that- it was simply the lessor to the Brooklyn Heights Railroad Company of the tracks in question,, and had nothing to do with the repairing and relaying thereof. It appeared that the Brooklyn' Heights Railroad Company were engaged in relaying the tracks on Flushing avenue, where the accident occurred; a temporary switch had been laid from the north to the south track, and granite blocks were “thrown in loosely, on the flat, just to fill up 'the vacancy there.” Plaintiff started in broad daylight to drive over this switch. A portion of his evidence was as follows: “ Q. Were you looking down on the ground as you were driving along there ? A. Well, I was looking out to see that my horse did not get catched. * * * Q. Were you looking ahead or down on the ground where your horse was stepping ? A. Well, I was watching; -1 was sitting this way and looking that way to see ■ if I could get him over very careful.”

It appears from the evidence that, notwithstanding, plaintiff’s alleged care, his horse'“ stepped on a stone, and the stone turned up, and the /heel of his shoe caught in another one of the bars (of the switch) and he pitched headforemost in trying to pick up his feet, and I Went up against the upright that holds the top in the front, and struck my face,” etc. - . '

• We'think ‘the evidence clearly shows that plaintiff' deliber- ' ately attempted to drive over the track in- question,, with full knowledge of the danger. He voluntarily assumed the risk and is himself alone responsible for the consequences. Judgments appealed from affirmed, with costs.

' Present: Clement, Ch. J., and Osborne, J.

Judgments affirmed, with costs. . '