Opinion
December Term, 1902.
Order affirmed, with costs. Held, that under the circumstances of this case it was error in the trial court to submit to the jury the question of defendant's negligence, based upon its omission to formulate and promulgate a rule requiring the placing of lights upon the dead engine; also held, that even assuming that the question of the assumption of the risk of a collision with this engine should have been pleaded as a defense, evidence thereof was admitted without objection upon the part of the plaintiff, in consequence of which that question was properly in the case. Adams, P.J., McLennan, Spring and Williams, J., concurred; Hiscock, J., not sitting.