Opinion
Civ. No. 9177.
March 1, 1949.
Simone N. Gazan, New York City, by Blasi, New York City, for plaintiff, for motion.
Foley Martin, New York City, by L. Laurence, New York City, for defendant.
Motion to strike out affirmative defense of assumption of risk.
Movant contends that under the Jones Act, Title 46 U.S.C.A. § 688, by reference to the Federal Employers' Liability Act, Title 45 U.S.C.A. § 54 the defense of assumption of risk is not available to the defendant.
Defendant contends that the defense of assumption of risk is not pleaded as a complete defense, but is now regarded in the light of comparative negligence.
Motion should be granted. The defense of "Assumption of Risk" can no longer be made in an action controlled by the applicable provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 54, which provides that "such employee shall not be held to have assumed the risk of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier". The Arizona v. Anelich, 298 U.S. 110, at page 118, 56 S.Ct. 707, 80 L.Ed. 1075.
Settle order on notice.