1 A.D.2d 875 | N.Y. App. Div. | 1956
Judgment, so far as appealed from, unanimously affirmed, with costs. In doing so, however, we cannot approve that portion of the opinion of the learned court below which may be interpreted as requiring absence of contributory neligence for plaintiff’s recovery. The action was for damages under the “Jones Act” (U. S. Code, tit. 46, § 688). In Socony-Vacuum Co. v. Smith (305 U. S. 424, 429) it was stated, “ Contributory negligence, then as now, was not a defense in suits brought by seaman to recover for injuries attributable to defective equipment, but was ground only for mitigation of damages. * • '* And no American ease appears to have recognized assumption of risk as a defense to such a suit.” Here the court properly determined that there was no negligence attributable to the defendant and that the vessel was not unseaworthy. The record justifies such findings on the facts and the law. Concur — Breitel, J. P., Rabin, Cox, Frank and Bergan, JJ.
