The sole question presented by the appellant on this appeal is the claim that oh the evidence the plaintiff as matter of law assumed the risk of the improper loading of the blocks of stone on the flat car so that they were insecure and shifted down, on plaintiff’s foot while he was engaged in braking the car. The learned trial justice submitted the question of assumption of risk to the jury. Considering the nature of the work in which plaintiff was engaged, the necessary rapidity with which these cars" were moved over this “ hump ” and the connecting tracks, the operations being constant day and night; the fact that plaintiff had nothing to do with the loading of the car and did not see it until he boarded it for the purpose of applying the brakes as it went down the incline by gravity, the question of assumption of risk was for the jury, and the evidence justified their verdict that plaintiff did not assume the risk.
The judgment and order should be affirmed, with costs.
Present — Kelly, P. J., Jaycox, Young, Kapper and Lazansky, JJ.
Judgment and order unanimously affirmed, with costs.