
    Ignatz Rosenthal, Respondent, v. The United Dressed Beef Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Negligence — Acts or omissions constituting negligence — Dangerous machinery and substances — Injuries to licensees and trespassers.
    One who entered defendant’s premises, with whose use he was familiar, under a mere license, and is struck by a side of beef moving along a trolley built for the purpose which is in proper order, and has his jaw dislocated and his teeth knocked out, will be presumed to have assumed the ordinary risks of the place and to have been bound to use particular care to keep out of the way of the beef; and, where it appears that with such care he might have avoided the accident, a judgment in his favor will be reversed.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.
    Frank Vernor Johnson, for appellant.
    Samuel S. Koenig, for respondent.
   Fitzgerald, J.

Defendant is the owner of a building at the foot of East Forty-fourth street, part of which it occupies and part of which it lets to Meyer Meyer & Son. The regular entrance to the portion of the building in which the business of Meyer Meyer & Son is carried on is from the street; they are butchers and there are means of access to their slaughter-house from defendant’s icehouse. In this passageway is an overhead rail, used by defendant’s employees to shove along sides of beef. Plaintiff, in June, 1904, was a customer of Meyer Meyer & Son and entered this passageway for the purpose of reaching the slaughter-house. While there he was struck on the cheek by a side of beef which was being pushed along in the customary way, causing his injuries, dislocation of lower jaw and loss of two teeth. Under the authorities, the plaintiff, upon the testimony, was at most but a licensee; and the defendant owed him no duty of active care. McCann v. Theelman, 36 Misc. Rep. 145; Downs v. Elmira Bridge Co., 41 App. Div. 339; Baker v. Otis El. Co., 78 id. 513. The “ trolley ” appears to have been in good order, nothing out of the ordinary was being done, the plaintiff was familiar with the uses to which this passageway was put and, in entering upon it, even with the acquiescence of the defendant, he assumed at least the ordinary risks of the place and was bound to be particularly careful on that account. With such care he might have avoided the accident. “Acquiescence is not invitation.” Forbrick v. General Electric Co., 45 Misc. Rep. 452.

Gildebsleeve and Davis, JJ., concur.

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