
    Donato Ventricelli, Respondent, v. Morton Coal Co., Inc., Appellant.
   Appeal by defendant in an action for damages for personal injuries from a judgment for plaintiff, entered on a jury verdict, and from an order denying defendant’s motion to set aside the verdict and to dismiss the complaint. Judgment and order reversed on the law, with costs, and complaint dismissed, with costs. Plaintiff was guilty of contributory negligence as matter of law, as was obvious to the trial court from the trial justice’s remarks during the trial. Plaintiff also created the condition which caused the accident, and he assumed the risk on the theory expressed in the maxim volenti non fit injuria. (Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y. 324, 327. See, also, Weller v. Consolidated Gas Co., 198 id. 98, 101; Bernhardt v. American Railway Express Co., 218 App. Div. 195, 197.) Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.  