App. Div.] First Department, February, 1906. his power to do so by serving a copy of his complaint upon the corespondent in the first instance as permitted by the section. This he did not do, so he is equally responsible with the corespondent for the present situation. A case may arise wherein a corespondent named in a divorce action may be outside the State and may be ignorant of its pendency until the issues involving his good name have been disposed of by the jury. Under such circumstances it would be unjust and contrary to the statute to deprive him of the opportunity to be heard in the action or to present evidence upon the issues so far as they affect him; yet such a result would follow under the view taken by Mr. Justice INGRAHAM that a corespondent only has the right to defend such issues as may be undisposed of at the time he comes into the litigation. The statute is salutary and remedial and the reason for its enactment apparent. It was designed to prevent innocent parties from being charged with immorality and convicted without an opportunity of defending themselves. If it is to effect this purpose, as expressed by its language, which is clear and certain, it should be construed so as to extend to a corespondent the rights of a party to the action in so far as the issues affect him, and if everything that has taken place prior to his coming into the action is a sealed book which he is forbidden to open, the end sought by the statute cannot be accomplished. I think, therefore, the court erred in refusing to the appellant the right to litigate the issues raised by his answer and in entering judgment while such issues were undisposed of. The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant Lawton to abide the event. Judgment affirmed, with costs. Order filed.. First Department, February, 1906. [Vol. 111. CATHARINE MCLAUGHLIN, as Administratrix, etc., of JOHN MCLAUGH_ LIN, Deceased, Respondent, v. MANHATTAN RAILWAY COMPANY, Appellant. First Department, February 23, 1906. Negligence - employee killed by passing train on elevated track assumed risk — contributory negligence - evidence - opinions of one not expert, inadmissible. The plaintiff's intestate, who had been for two months in the defendant's employ in repairing elevated tracks - one month on the particular line in questionwhile walking on a footway between two tracks, in recoiling from a train passing on one of them was struck and killed by a train passing on the other. The intestate was familiar with the locality. There was a normal clearance of twenty-nine and one-half inches between passing trains, and it was shown that the place was safe for those accustomed to it. There was an outside footpath five feet three inches wide which the intestate could have taken in going to his work, and in that case he would have been entirely out of danger. Of his own volition he took the center walk knowing that trains were liable to pass, and there was no evidence that he looked to see whether trains were approaching or took any precaution to protect himself when they were passing. Held, that a verdict for the plaintiff should be set aside; That the risk was apparent and assumed; That the intestate was guilty of contributory negligence; That the defendant's foreman superintending the work was not an expert competent to give an opinion as to whether placing red flags at either end of gangs at work on such tracks would make the place a safe place in which to work. The admission of such opinion is reversible error. O'BRIEN, P. J., and CLARKE, J., dissented. APPEAL by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of May, 1905, upon the verdict of a jury for $4,000, and also from an order entered in said clerk's office on the 15th day of May, 1905, denying the defendant's motion for a new trial made upon the minutes. J. Osgood Nichols, for the appellant. J. Noble Hayes, for the respondent. App. Div.] MCLAUGHLIN, J.: First Department, February, 1906. On the 28th of November, 1902, the plaintiff's intestate was struck and killed by one of the defendant's trains, and she brings this action to recover the damages alleged to have been sustained upon the ground that his death was caused by defendant's negligence. The accident occurred about eight o'clock in the morning, at a point a little south of the intersection of Seventy-sixth street and Columbus avenue, at which place the defendant maintains an ele vated railroad structure, on which trains are operated. The intestate for about two months preceding the accident had been employed by the defendant in making certain repairs upon the structureone month on this particular line, Sixth avenue. For two days immediately preceding the twenty-eighth he did not work, and this seems to have been taken by him as a sufficient ground for discharge, for on the morning of the accident he applied to the foreman in charge of the work (one Murphy) for reinstatement. Murphy at the time was upon the elevated structure, and he told the intestate he could go to work at any of the places south of there which had been designated by chalk marks as needing repairs. The repairs which were being made under Murphy's supervision extended from Seventy-sixth to Fifty-ninth streets. Between these points there are three tracks upon the structure. The north and south-bound local tracks are located respectively on the east and west side of the structure, and the express track is in the center. The distance between the nearest rails of the express and local tracks is six feet three inches. In the center of this space on either cide is a board walk constructed of four six-inch boards, the width of which is sufficient to give a clear space of twenty-nine and onehalf inches between parallel cars passing on both tracks, except under certain conditions, when the space might be narrowed three or four inches by the swaying of passing cars. Beyond the local tracks, on either side of the structure, there are also two board walks, each of the width of five feet three inches. Between the outside walk and the track extend handrails. These outside walks are used by workmen in going to and from their work, and there was some evidence that the walk between the tracks is also used for that purpose, as well as for workmen while at work, to escape from passing trains. First Department, February, 1906. [Vol. 111. The intestate, after Murphy told him he could go to work, proceeded southerly on the walk between the express and the southbound local tracks. There was a chalk mark indicating repairs were needed only a few feet from where Murphy stood (which was on this same walk), but he passed this and after going between 150 and 200 feet a local train overtook him and a little later an express. As the express train passed Murphy he called to the intestate to look out for it, and as he did so, to use Murphy's own language, the intestate "shied from the local and then came in contact with the step of the express." He was knocked down and instantly killed. The plaintiff contended at the trial, and this contention seems to have been adopted by the trial court, that upon the facts a question was presented for the jury to say whether the defendant had performed the duty which it owed to the intestate, by furnishing him a reasonably safe and secure place to walk or stand upon between its tracks while the trains were passing and in notifying him of the approach of the trains and promulgating and enforcing reasonable rules and regulations with reference to the use of the walk and the operation of the trains. The jury found in favor of the plaintiff and defendant appeals. I am of the opinion that the judgment is erroneous and should be reversed. The proof showed that upon the tracks at this point trains were passing and repassing every few minutes, indeed, at some hours of the day nearly every minute; that the intestate was familiar with this fact because he had been engaged upon the tracks at this point for nearly a month, during which time trains had passed hundreds of times. Indeed, the testimony of plaintiff's witness Murphy, who was not at the time of the trial in the employ of the defendant and had not been for upwards of two years, was to the effect that he had been caught between these trains as the intestate was at the time of the accident "lots of times, hundreds of times, every day," and that it was a safe place if the person knew what to do, that is, braced himself and stood sideways. The intestate in going to the place where he desired to work could have taken the walk on the outside of the tracks and in that case he would have been entirely out of danger from passing trains. He, however, of his own volition, took the center walk and when he did so he must have known that while upon that walk both the First Department, February, 1906. App. Div.] express and local trains were liable to pass. He was, therefore obligated to look out for approaching trains, and there is not the slightest evidence in the record that after he started on this walk he looked to see whether a train were approaching or that he took any precautions to protect himself when the trains were passing; on the contrary, the only evidence is that when Murphy called to him, instead of turning sideways and allowing the trains to pass, he threw his body away from the local train and in doing so it came in contact with the express. Not only this, but when the intestate selected the center walk instead of the outside one, the risk of using the one selected was open and obvious to him, and, therefore, he assumed whatever danger there was in using it. This is but applying the general rule, which is that a servant when he accepts the service, does so subject to the risks incidental to it, and where the machinery, implements or structures of the employer's business are at that time of a certain kind or condition and a servant knows it he can make no claim upon the master to furnish different safeguards or appliances (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520); that he assumed not only the risks incident to the employment but obvious dangers, and if he voluntarily enters into or continues in the service having knowledge or means of knowing the dangers involved he assumes the risk. (Crown v. Orr, 140 N. Y. 450; De Graff v. N. Y. C. & H. R. R. R. Co., 76 id. 125; Ryan v. Third Avenue R. R. Co., 92 App. Div. 306.) No rule which could have been adopted by the defendantunless it had stopped running its trains while the intestate was on his way to work would have protected him. He knew what the situation was and he knew the danger which he was liable, to encounter if the express and local passed him at the same time while he was upon this walk. The real cause of the accident was the failure of the intestate to notice the approach of the express train and probably when Murphy called to him he thought he was warning him of the local and for that reason he swerved in the opposite direction, and in doing so was struck by the express. This being the condition of the evidence at the conclusion of the trial, it seems to me the court erred in denying defendant's motion to direct a verdict in its behalf, certainly in denying its motion to APP, DIV.-VOL, CXI, 17 |