#### Lese, Appellant, vs. Chicago & Northwestern Railway Company, Respondent.

*September 19*

October *28, 1913.*

*Railroads: Injury to employee: Contributory negligep.ce: Comparar tive negligence: Direction of verdict.*

Plaintiff, an experienced carpenter in the employ of the defendant railway company, was injured hy the falling of a ladder upon which he was standing while repairing a broken shed roof under the direction of a foreman. Upon evidence showing that he had himself selected the place where the ladder r.ested against the broken roof boards; that after mounting the ladder he could know better than the foreman the condition of such boards and the danger to which he was exposed; and that he proceeded, without examination, to cut the roofing paper which held the boards against which he had placed the ladder, thus removing its support and causing it to fall and throw him to the ground, it is *held*as a matter of law, under sec. 1816, Stats., that his own negligence which proximately contributed to cause his injury was greater than that of defendant’s foreman, and hence that a verdict for defendant was properly directed.

*548Appeal from a judgment of tbe circuit court for Green Lake county: Chesteb A. Eowlee, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment dismissing plaintiff’s complaint.

*J. L. Kelley,*for tbe appellant.

*Edward M. Smart,*for tbe respondent.

SiebecKER, J.

Tbis is an action to recover damages for personal injury wbicb tbe plaintiff alleges be sustained while repairing a roof on a lumber sbed wbicb bad been broken by one of defendant’s freight cars.

Tbe plaintiff bad been engaged as a carpenter in doing repair work for tbe defendant company. Tbe lumber-sbed roof, wbicb was covered with roofing paper over tbe roof boards, bad been damaged by a moving box car wbicb bad jumped tbe bumper and crashed into tbe roof and sbed building, tearing out a portion of tbe roof and breaking one side of it. Tbe defendant company undertook to repair tbe sbed, and on April 1, 1912, through its foreman, sent tbe plaintiff and another workman to make such repair. During the forenoon of tbis day they repaired tbe side of tbe building. In tbe afternoon, after tbe foreman,. Sutherland, bad arrived, tbe plaintiff and tbe man working with him were directed to repair tbe roof. Tbe foreman told them to use a ladder to get up to tbe broken part of tbe roof and tear off some of tbe roofing paper and ascertain tbe extent of the damage to tbe roof and see what boards needed to be replaced. Tbe plaintiff got tbe ladder and placed it against tbe portion of tbe roof which bad been broken, at a point wbicb be thought would be safe, and then mounted tbe ladder. While in tbis position be cut some of tbe paper wbicb bad held tbe boards against wbicb the ladder was resting. Tbis caused tbe support to tbe ladder to give way and let it fall, wbicb threw tbe plaintiff *549to tbe ground and inflicted tbe injuries complained of and for wbieb be asks damages in tbe sum of $3,000.

Erom the evidence adduced it appears that plaintiff was a man thirty-four years of age and bad bad about ten years’ experience at carpenter work; and for six years preceding tbe accident bad worked with one Sutherland, who was one of defendant’s bridge crew foremen. On tbe day in question Sutherland sent plaintiff and another workman to do this job of repair work, and tbe plaintiff, being tbe older in service, acted as bead workman in Sutherland’s absence during tbe forenoon of tbe day. Before tbe foreman, Sutherland, arrived on tbe ground, tbe plaintiff and bis associate bad repaired tbe broken side of tbe lumber shed by putting in new studding, pushing tbe sills into place, and replacing broken drop-siding. In doing this work they bad used a step-ladder and some staging to reach tbe portion of tbe building not within their reach from tbe ground. At about 1:30 o’clock in tbe afternoon tbe foreman, Sutherland, bad arrived, and be spoke to plaintiff about getting a ladder to get up to tbe broken roof, which was from nine to ten feet above the ground at tbe broken edge. Tbe plaintiff testified that Sutherland told him “to get a ladder and get up there and square that paper to see bow it was broke out, and I done so.” When asked what be meant by squaring off tbe paper be answered, “take a knife and sqqare it off so be could see bow much it was broke out.” *Q.*“That was tbe purpose of it, .learning bow much was broken out, tbe size of it, so that you could see about putting in tbe new boards ?” *A.*“Yes, sir.” Tbe plaintiff procured the ladder, set it himself by placing it so that it rested against tbe face of the broken part of tbe roof. There is nothing in tbe evidence to contradict tbe necessary inference from tbe plaintiff’s statements that be selected tbe place where tbe ladder rested against tbe broken roof boards and that after be bad mounted it be could better know the conditions of bis situation than tbe *550foreman, Sutherland. It also appears that the plaintiff, after mounting tbe ladder, proceeded to cut into the roofing paper without examining the condition of the roof boards and what effect removal of the paper would have as to the safety of the place where the ladder rested. Under the circumstances and the conditions shown he could better observe the clangers to which he was exposed than the foreman or any one else. It is manifest that he proceeded to cut the roofing paper which held the boards against which the ladder rested, without looking to ascertain whether or not it would result in removing the support of the ladder on which he stood. The plaintiff’s conduct in omitting to examine the condition of the roof against which the ladder rested and proceeding to cut the roofing paper, whereby he removed the support to the ladder, are acts whereby he became the active agent in causing his fall to the ground, and they show that his own negligence and rashness proximately caused the injuries he sustained. The rights of the parties are governed by the statute providing that if the plaintiff’s negligence operated with that of defendant to produce the injury and is found to be the greater, then the plaintiff is precluded from recovery. Erom the facts heretofore pointed out, it appears as a matter of law that plaintiff’s negligence, which proximately contributed to produce the injuries he complains of, was greater than that of the foreman of the defendant company. The ttial court very properly held that the plaintiff, as a man of experience at the carpenter’s trade, must have known that before mounting a ladder, in building operations, it devolved on him, as a man of ordinary care, to ascertain the conditions of its support and its reasonable safety to hold him up while upon it, and that it appeared from the evidence that he made no examination of the place where it rested against the roof and rashly proceeded to remove the roofing paper-which held the roof boards against which he had placed the ladder, and thus caused his fall to the ground. We find the record fully sustains the *551trial court’s disposition of tbe ease and that tbe case is witbin tbe principles applied in tbe following cases: *Peffer v. Cutter,*83 Wis. 281, 53 N. W. 508; *Hencke v. Ellis,*110 Wis. 532, 86 N. W. 171; *McPherson v. G. N. R. Co.*140 Wis. 473, 122 N. W. 1022; *Koepcke v. Wis. B. & I. Co.*116 Wis. 92, 92 N. W. 558; *Faber v. C. Reiss C. Co.*124 Wis. 554, 102 N. W. 1049.

*By the Court.*— Tbe judgment appealed from is affirmed.