
    David Gilbert, Plaintiff, v. International Mercantile Marine Company, Defendant.
    Supreme Court, New York County,
    January 3, 1928.
    Ships and shipping — stevedore — action for injuries — defense of assumption of risk is good under Jones Act (41 U. S. Stat. at Large, 988) — contributory negligence is partial defense only.
    Plaintiff, a stevedore, was injured while in the defendant’s employ, and in this action to recover damages the defendant has interposed the defense of assumption of risk and contributory negligence. Plaintiff’s motion to strike out the defense of assumption of risk must be denied, for the Jones Act (41 U. S. Stat. at Large, 988, chap. 250) does not deprive the defendant of the defense of assumption of risk in an action by a stevedore.
    However, contributory negligence is only a partial defense in diminution of damages, but since the defendant has pleaded the two defenses as one, and since the defense of assumption of risk is sufficient, the motion to strike out the entire defense must be denied, but the defendant will be limited with respect to contributory negligence by the rule of comparative negligence.
    Motion to strike out defense as insufficient in law under subdivision 6 of rule 109 of the Rules of Civil Practice.
    
      Cohen & Sleppin, for the plaintiff.
    
      Burlingham, Veeder, Masten & Fearey, for the defendant.
   Frankenthaler, J.

In this action by a stevedore, who claims to have suffered personal injuries while in the defendant’s employ, the defendant has interposed as a separate defense assumption of risk and contributory negligence by the plaintiff.

The plaintiff moves to strike out this defense as insufficient in law, calling attention to the provisions of the Jones Act (41 U. S. Stat. at Large, chap. 250, p. 988). In the recent case of Yaconi v. Brady & Gioe, Inc. (246 N. Y. 300), Chief Judge Cardozo points out that the defense of assumption of risk is available against a stevedore under general maritime law and that the Jones Act has not deprived the employer of the right to rely upon it. The decisions and dicta of lower courts to the contrary must be deemed overruled so far as such decisions and dicta relate to actions by stevedores as distinguished from seamen in the narrower sense. Contributory negligence, however, is now only a defense in diminution of damages in actions brought by injured stevedores or seamen under the Jones Act. If pleaded alone it is insufficient as a separate defense unless the defense is labeled as a partial defense only.

Since, however, the defendant has seen fit to blend into one defense the two matters of assumption of risk and contributory negligence and since this defense, so far as assumption of risk is concerned, is sufficient in law the motion to strike out the entire defense must be denied, but with respect to the allegations of contributory negligence the defendant will be limited on the trial by the admiralty rule of comparative negligence. Order signed.  