
    (108 App. Div. 288.)
    LAFFAN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    November 10, 1905.)
    Master and Servant—Death oe Employé—Assumption oe Risk.
    An employé was killed while attempting to move a street car into a car barn. The car came to a stop on the curve leading into the barn, and the employé directed that leaders should be attached to the car platform and gave instructions to go ahead. The car did not move. He then walked into the space between the car and the wall of the barn, when the car moved and crushed him. He knew the situation and acted in view of that knowledge. Held, that he assumed the risk as a matter of law, precluding a recovery for his death.
    
      Appeal from Trial Term, New York County.
    Action by Margaret Laffan, as administratrix of William Laffan, deceased, against the Metropolitan Street Railway Company. From an order setting aside a verdict for plaintiff, she appeals.
    Affirmed.
    Argued before O’BRIEN, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
    D. Keane, for appellant.
    B. H. Ames, for respondent.
   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 128th and 129th 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 40 feet long. When it came to a stop it was 3 or 4 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 defendantin 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 employes, 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. All concur.  