
    Thomas Watson, App’lt, v. Brooklyn City Railroad Company et al., Resp’ts.
    
      (Brooklyn City Court, General Term,
    
    
      Filed November 25, 1895.)
    
    Negligence—Contributory.
    "A person, who undertakes in daylight to drive a horse over a temporary crossing, known by him to be dangerous, assumes the risk.
    Appeal from a judgment dismissing the complaint.
    
      Wood & Hill, for app’lt; Morris & Whitehouse, for resp’ts.
   Per Curiam.

We 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 was 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 ditch. 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 hoise was stepping? A. Well, I was watching. I was sitting this way, and looking that way, to see ií I could get him over very carefully.”

It appears from the evidence that, notwithstanding plaintiff’s alleged care, his horse “ stepped on a stone, and the stone turned np, 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 which holds the top in front, and struck my face,” etc. We think the evidence clearly shows that plaintiff deliberately 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.

Judgment appealed from affirmed, with costs.  