I concur in the conclusion of Mr. Justice Laughlin upon the ground that in this case there was no question for the jury. Whether the action was under the Employers’ Liability Act, being article 14 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), or at common law, I do' not think that the finding that defendant was negligent was sustained by the evidence. It does not appear that the tailboard of this wagon was provided for the purpose for which it was used. It was a simple appliance and a part of the wagon in common use. The plaintiff knew that this tailboard had been broken and repaired. He thought a new tailboard should be supplied, and so apparently did the president of the defendant. So far as appears, the *774tailboard was entirely safe if used as a tailboard. All the plaintiff had to do to avoid injury was not to step upon the part that had been repaired by nailing on a piece of board to enable it to be used on this particular day. The accident was directly the result of the plaintiff stepping on this portion of the board that had been broken of which he knew as much as anybody else.
I think under those circumstances that irrespective of contributory negligence or assumption of risk the verdict that the defendant was negligent was against the weight of evidence and justified the court in setting it aside.
McLaughlin and Miller, JJ., concurred.
Order of Appellate Term reversed, with costs, and order of Municipal Court affirmed, with costs.