Order insofar as it denies the motion to strike out the third affirmative defense reversed on the law, and motion granted, and otherwise order affirmed, without costs of this appeal to either party.
Memorandum:
Plaintiff's action being based upon the alleged negligence of the employer railroad, its officers and employees, assumption of risk is not available as a defense (U. S. Code, tit. 45, § 54, as amd. in 1939) and should be stricken from appellant...
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