The plaintiff knew the condition of the tracks and the danger attending their use, and voluntarily assumed the known risks of his employment upon them. Pingree v. Leyland, 135 Mass. 398. Moulton v. Gage, 138 Mass. 390. Leary v. Boston & Albany Railroad, 139 Mass. 580. Taylor v. Carew Manuf. Co. 140 Mass. 150. Lake Shore & Michigan Southern Railway v. McCormick, 74 Ind. 440.

It does not make in the plaintiff’s favor that he was not in the employment of the defendant, but in that of the Troy and Boston Railroad Company, a corporation that was authorized to use the tracks. Whatever the obligations of the defendant may have been under the contract with that company, he was under *606no greater obligation to its servants to furnish a suitable road for them to work upon, than he was under to his own servants. The plaintiff, in going to work upon the tracks at the invitation of the defendant contained in the contract with the Troy and Boston Railroad Company, assumed, as against the defendant, the obvious and known risks of the employment arising from the defective construction or condition of the road, as fully as if he had gone upon the tracks under a contract' with the defendant as his servant. A majority of the court are of opinion, for these reasons, that the entry must be,

Exceptions overruled.