We agree that the court erred in charging the jury that they might find that plaintiff was a trespasser upon his own wagon, but we differ on the question whether the error was harmful. An erroneous charge does not injure a plaintiff who has no cause of action; and such is the case here.
It cannot be disputed that in voluntarily and needlessly riding on the trailer the plaintiff assumed the added risks due to such method of transportation. As to such risks, such assumption is often considered as equivalent to contributory negligence. (Clark v. Eighth Avenue R. R. Co., 36 N. Y. 135; Kleffmann v. Metropolitan Street R. Co., 116 App. Div. 334; Magar v. Hammond, 171 N. Y. 377; Ward v. International R. Co., 206 id. 83.) However, it seems to me that assumption of risk and contributory negligence are not the same thing, although they may have the same effect on a plaintiff’s right to recover. Assumption of risk is the voluntary acceptance of a hazard, and under the doctrine volenti non fit injuria one has no cause of action for injury due to a hazard so assumed. If an injury is due partly to a risk assumed and partly to the negligence of another, there is no cause of action; for apportionment of damages is unknown to our law. There is no evidence to sustain a finding that plaintiff’s injury was due to any negligent act of defendant not contributed to by the hazards that plaintiff assumed. The plaintiff testified that the van drawing the trailing wagon, *763going at the rate of fifteen miles an hour, “ swung out to go ahead of another truck, and in swinging out it threw the wheel against the off track and turned it off and threw me out.” It appeared that the wheel of the trailer was broken or sprang. It is not negligence to turn to the left to pass a slow-going truck while driving at an ordinary rate of speed. In so doing the wheel of a heavily laden wagon, trailing behind without means of steering or guiding it, is apt to be thrown against a rail of a street car track. This is one of the. hazards that plaintiff assumed and it contributed to the accident.
I recommend that the judgment and order be affirmed, with costs.
Jenks, P. J., concurred.
Judgment and order reversed and new trial granted, with costs to abide the event.