Watson v. Brooklyn City R.

We think the judgments dismissing the complaint herein should be affirmed. Plaintiff sued for damages for injuries to himself and his horse, alleged to have been received while driving over a temporary switch, the rails of which were so laid, as he alleged in his complaint, that they “were hazardous and dangerous to drive a horse across.” As to the defendant the Brooklyn City Railroad Company, it was plain that it was simply the lessor to the Brooklyn Heights Railroad Company of the tracks in question, and had nothing to do with the repairing and relaying thereof. It appeared that the Brooklyn Heights Railroad Company was engaged in relaying the tracks on Flushing avenue where the accident occurred. A temporary switch had been laid from the north to the south track, and granite blocks were “thrown in loosely, on the flat, just to fill up the vacancy there.” Plaintiff started in broad daylight to drive over this switch. A portion of his evidence was as follows:

“Q. Were you looking down on the ground as you were driving along there? A. Well, I was looking out to see that my horse did not get catched. * * * Q. Were you looking ahead, or down on the ground, where your horse was stepping? A. Well, I was watching. I was sitting this way, and lo.oking that way, to see if I could get him over very careful.”

It appears from the evidence that, notwithstanding plaintiff’s alleged care, his horse “stepped on a stone, and the stone turned up, and the heel of his shoe caught in another one of the bars [of the switch], and he pitched headforemost in trying to pick up his feet, and I went up against the upright that holds the top in front, and struck my face,” etc. We think the evidence clearly shows that plaintiff deliberately attempted to drive over the track in question, with full knowledge of the danger. He voluntarily assumed the risk, and is himself alone responsible for the consequences.

Judgments appealed from affirmed, with costs.