McGovern v. Lehigh Valley Railroad

Headnote

McGovern v. Lehigh Valley JR. JR. Co., 164 App. Div-. 906 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 14, 1914, affirming a judgment in favor of

plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate ’ alleged to have been occasioned through the negligence of the defendant. The intestate while in the employ of defendant fell from a signal tower and received injuries resulting in his death. The complaint alleged, that defendant was negligent in failing to provide decedent with a reasonably safe place in which to work, viz., a reasonably safe signal tower for the performance of the duties required of him in and about said tower. The answer denied negligence and alleged as a first affirmative defense that whatever damage, or loss was received by the plaintiff was a result of the contributory negligence of plaintiff’s intestate and not of any negligence on the part of the defendant; and for a second defense that plaintiff’s intestate was at the times and place mentioned in the complaint in complete charge of the signal tower and, therefore, assumed the risk of his employment and that whatever damages were sustained resulted from the risks of the occupation or from the negligence of plaintiff’s intestate.