#### Ballard, Respondent, vs. Thomas Furnace Company, Appellant.

*October 6*

October *26, 1915.*

*Master and servant: Injury: Insecure path: Contributory negligence: Question for jury.*

In an action for injuries to an employee contributory negligence was a jury question upon evidence showing, among other things, that as he was walking in defendant’s factory along a narrow path constructed of a thin coating of concrete laid on ashes, close to the edge of which was an excavation, the bank caved away causing him to fall into the excavation, that for weeks he and others had walked over the path safely, and that he knew of the excavation and of the thinness of the concrete, but not showing that he knew or even suspected the insecure condition of the bank under the concrete.

Appeal from an order of tbe circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.

*Affirmed.*

This is an action for personal injury begun in the civil court of Milwaukee county. At the close of the evidence the court, upon motion of the defendant, directed a verdict in its favor on the ground that the evidence showed as a matter of law that plaintiff was guilty of contributory negligence. Plaintiff’s counsel moved to reopen the case for the admission of further testimony to show that plaintiff was unable to see clearly without his glasses, and that at the time of his injury he was not wearing his glasses, and to clear up certain ambiguity as to how the accident really happened. The motion was denied. Afterwards the civil court, upon motion of plaintiff, set aside the verdict and granted a new trial. Upon appeal to the circuit court, and after a hearing therein, it entered an order affirming the order of the civil court granting a new trial. Prom such order of the circuit court the defendant appealed.

Por the appellant there was a brief by *Doe, Ballhorn &*
      *387
      *Wilkie,*and oral argument by *Harold M. Wilkie*and *J. B. Doe.*

For tbe respondent there was a brief by *Gochems & Wolfe*and P. *C.*Kolinski, and oral argument by *H. O. Wolfe.*

Vinje, J.

Tbe defendant concedes there is evidence sufficient to go to tbe jury as to negligence on its part, but it claims that tbe evidence conclusively shows contributory negligence on tbe part of tbe plaintiff and therefore the court erred in setting aside tbe verdict and granting a new trial. We shall assume that tbe civil court did not grant a new trial on tbe ground that it erred in not reopening tbe case, but that tbe new trial was granted because contributory negligence was a jury question.

Plaintiff, who was a carpenter about fifty-two years of age, in tbe course of bis employment at about 2 o’clock on tbe day of tbe accident passed in a northerly direction through tbe engine room, where construction work was being carried on. Tbe path along which be walked was one that bad'been commonly used by tbe employees for some time past. It was two feet wide and was constructed of a thin coating of concrete laid on ashes. It passed between a pump on one side and an excavation on tbe other. Tbe side of tbe path next to tbe excavation was about five inches lower than tbe other side. Tbe excavation was dug some three weeks or more before tbe accident and plaintiff knew it was there, and since it was made bad walked along tbe path eight or ten times before be was hurt. Plaintiff’s evidence shows that tbe excavation was about nine or ten feet long, five or five and one-half feet wide, and three feet deep. Defendant says it was seven feet long, three feet wide, and eighteen inches deep. Both agree that it came close to tbe edge of tbe path. On tbe day of tbe accident loose boards from a concrete form that bad been taken down lay scattered along tbe path, and plaintiff ‘testified that as be came along tbe path opposite tbe *388excavation be stepped on a piece of board that was lying there and tbe bank and dirt caved away and be slipped off tbe board backward into tbe bole, and sustained tbe injúries complained of. There is no evidence contradicting bis statement as to bow be fell into tbe excavation.

Tbe gist of defendant’s argument is that since plaintiff knew of tbe existence of the excavation and its location with reference to tbe path; knew that tbe latter was covered with only a thin coating of concrete and saw tbe boards scattered about, be was aware of tbe defect that caused bis fall, and having failed to show that bis attention was in any way excusably diverted be must be presumed to have remembered tbe defect and to have been negligent in being injured by it. Numerous Wisconsin cases beginning with *Devine v. Fond du Lac,*113 Wis. 61, 88 N. W. 913, and ending with *Robinson v. Oconto,*154 Wis. 64, 142 N. W. 125, are cited to sustain tbe proposition stated. If tbe case came squarely within tbe principle announced tbe granting of a new trial could perhaps be .sustained, if at all, only upon tbe ground that we could not say there was a clear abuse of discretion under all tbe circumstances disclosed by tbe record, including tbe refusal of tbe request to reopen tbe case for further testimony. But we think tbe case is one that does not fall under tbe principle applicable to a known defect. It is true plaintiff knew of tbe excavation, of tbe thinness of tbe concrete, and of tbe loose boards scattered about. But it does not appear that be knew of or even suspected tbe insecure condition of tbe bank under tbe concrete. That is what caused him' to fall. He says “tbe bank caved away and tbe dirt” and be fell. There is nothing in tbe evidence to charge him with knowledge of tbe ..condition of the bank at tbe place it caved in. In walking along tbe path be could not very well see tbe face of tbe bank that caved in, as it was almost directly underneath him. For weeks previously be bad walked over tbe same path safely and bad seen others do so. Tbe con*389Crete with the earth firm underneath, though thin, had sustained their weight. Erom anything that appears in the evidence he had no reason to believe that it would not do so at the time of his injury. His stepping upon a board could not be said to contribute to the result, for that served to distribute his weight over a greater area and hence lessen the pressure directly under his foot. Since the path was only two feet wide it did not permit him to keep any distance away from the excavation. He must come quité close to it or else not use the path at all'. Just where on the path he walked does not appear. But with the obstruction of a pump on one side of a two-foot path and an excavation on the other it is clear he had no wide latitude of choice. "Hence it is not easy to perceive how a recollection of all the defects existing, even if known to him, would have enabled him with the greatest amount of care to proceed more safely than he did. *Zoellner v. Fond du Lac,*147 Wis. 300, 306, 133 N. W. 35. Whether he was negligent in using the path at all is a jury question. *Fuhrmann v. Coddington E. Co.*156 Wis. 650, 146 N. W. 796. Under these circumstances it cannot be held as a matter of law that plaintiff was negligent in walking along the path as he did, and the court propérly set aside the verdict and granted a new trial.

*By the Court.*— Order affirmed.