Fussey v. Diesel Tanker Ellen Bushey, Inc.

E.D. New York

Fussey v. Diesel Tanker Ellen Bushey, Inc.

85 F. Supp. 902, 1949 U.S. Dist. LEXIS 2567

CourtDistrict Court, E.D. New York

DecidedMarch 1, 1949

DocketCiv. No. 9177

StatusPublished

This text of 85 F. Supp. 902 (Fussey v. Diesel Tanker Ellen Bushey, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fussey v. Diesel Tanker Ellen Bushey, Inc., 85 F. Supp. 902, 1949 U.S. Dist. LEXIS 2567 (E.D.N.Y. 1949).

Pincite

Opinion

RAYFIEL, District Judge.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

RAYFIEL, District Judge.

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.

Cite This Page — Counsel Stack

Bluebook (online)

85 F. Supp. 902, 1949 U.S. Dist. LEXIS 2567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fussey-v-diesel-tanker-ellen-bushey-inc-nyed-1949.

Opinion

Related

Cite This Page — Counsel Stack