
    John Miller, Respondent, v. Dietrich Grieme, Appellant.
    
      Negligence — injury, while driving out of a coal bin, the roof beam of which was so low as not to permit the passage of the driver’s body between it and the seat of the truck — coercion.
    
    Where the height of a beam supporting the roof of a coal bin is such that a person sitting upon the seat of a truck, such as was ordinarily loaded at the bin, could, by stooping, drive under the beam without coming in contact with it, an employee, entirely familiar with the situation, who has, without mounting to the seat, driven into the bin a new truck, the seat of which is about two feet higher than the seat of the truck in ordinary use, and when directed to drive out the truck mounts to the seat, the space between which and the beam is not sufficient to admit of the passage of his body, and is injured, cannot recover damages for the injuries thus sustained.
    The fact that he was directed to drive out the truck does not establish that he was coerced into mounting the seat, especially where it appears that he could have obeyed such direction without mounting to the seat.
    Appeal by the defendant, Dietrich Grieme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf Hew York on the 23d day of May, 1899, upon the verdict of a jury, for $2,500, and also from an order entered in said clerk’s office on the 22d day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      George W. Sehurman, for the appellant.
    
      Wales F. Severance, for the respondent.
   Hatch, J. :

The plaintiff was employed by the defendant, a coal dealer, as a driver of a track for the delivery of coal. The trucks were loaded at bins constructed in the defendant’s yard, the method being to drive 'che truck into the space constructed for that purpose, where it received its load and was driven out. The roof of the bin, or space into which the truck was driven, was supported by a crossbeam. After the truck was loaded it was driven out, passing under the beam which supported the roof; the space between the truck ordinarily used and this beam permitted the driver to occupy the seat upon the truck, and by stooping when passing under the driver could avoid contact with the beam, the intervening space permitting the truck and the person to pass under without contact.

The plaintiff had been at work for the defendant about a year; had loaded trucks at the bin arid driven them out during that time; he was entirely familiar with the method of loading the trucks, the construction of the bin and the existence of the beam which supported the roof. Upon these subjects his knowledge was fully equal to the defendant’s or that of any other person connected with the premises. Just prior to the happening of the accident which is the subject of this action, the defendant had purchased a new truck, the seat of which was from a foot and' a half to two feet higher than the seat upon the trucks which had been theretofore used. The foreman of the defendant directed the plaintiff to place this truck in the space to receive its load, and after the same ivas loaded he was directed to drive out, and the plaintiff mounted the seat for that purpose. The space between the seat and the beam was not sufficient to admit of the passage of the plaintiff’s person, and as he was driving out he came in contact with the beam and received the injuries of which he now makes complaint.

It is evident upon the proof that there can be no recovery in this action. The plaintiff was entirely familiar with the construction of the bin and the existence of the beam; he was fully informed of the method of doing the work; the increased height of the seat of the new truck was apparent to observation, so there was nothing, either in the construction of the bin, the existence of the beam, or the height of the seat of the truck, that was not as familiar to him as it was to the defendant or to any other person. Ho instruction which should have been imparted by the defendant could have added to the plaintiff’s knowledge of the surroundings, or of the danger to be apprehended from, attempting to drive the truck under the beam.

Under such circumstances, the plaintiff was chargeable with knowledge, and as he was fully informed, must be held to have assumed the risks incident to the situation and the method of performing the work, and no recovery of damages is authorized for injury received under such circumstances. (Gibson v. Erie Railway Co., 63 N. Y. 449; Williams v. D., L. & W. R. R. Co., 116 id. 628; Appel v. B., N. Y. & R. R. Co., 111 id. 550; Knisley v. Pratt, 148 id. 372.)

This condition was undoubtedly contemplated by the plaintiff-when he drew his complaint, for therein it is averred that he was coerced into getting upon the truck for the purpose of driving it out. Assuming that the averment is sufficient to raise such issue, the proof falls far short of establishing the averment; indeed, the testimony of the plaintiff establishes that there was no coercion in his taking his ¡dace upon the seat, as the only direction was to drive out the truck. This direction could not possibly be construed into a coercive act. (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520.) In addition, the proof shows that the plaintiff took the truck into the space, and that there was sufficient room io drive it out, without his mounting to the seat; so that his act of going upon the truck was purely voluntary and unnecessary, and being with full knowledge of the existing conditions, it excludes any theory of negligence upon the part of the defendant, and conclusively establishes that the plaintiff was guilty of negligence contributing to the injury.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brünt, P. J., Rumsey, Patterson and O’Brien, , JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  