Benda v. Keil — 63 N.Y.S. 971

Majority

p. 971

BENDA v. KEIL et al.

(City Court of New York, General Term.

April 5, 1900.)

Headnote

Master and Servant — Knowledge of Danger — Assumption of Risk.

Where the testimony shows that a servant was acquainted with the exact condition of his surroundings, and knew of any danger existing in his occupation, he assumed the risk of injury that was apparent, and cannot recover for such injuries.

Appeal from trial term.

Action by one Benda against one Keil and others to recover for injuries. From a judgment for plaintiff, and from an order denying a motion for new trial, defendants appeal.

Reversed.

Argued before McCARTHY and HASCALL, JJ.

Edward E. McCall, for appellants.

F. W. Catlin, for respondent.

It seems to me that the verdict was clearly against the weight of evidence in this case, and that the jury arrived at its conclusion on the theory that there was some evidence to support the claim of plaintiff, and it would, therefore, be justified in expressing a sympathetic feeling for him. This, of course, could not uphold such a determination. Baulec v. Railroad Co., 59 N. Y. 366 . If any danger existed in the occupation of the injured person, he knew of it, and assumed the risk that was apparent. The testimony shows that he, best of all, was acquainted with the exact condition of his surroundings, and, if the conditions were as plaintiff contends, was certainly careless in his operations. Crown v. Orr, 140 N. Y. 452 , 35 N. E. 648 .

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

McCARTHY, J., concurs.