#### Yezick, Appellant, vs. Chicago Brass Company, Respondent.

*January 8*

March *9, 1909.*

*Master and servant: Injury: Dangerous working place: Evidence: Assumption of risk.*

*1.*In an action for injuries to a helper in a brass foundry, alleged to have been caused by a defect in the platform on which he was working, the evidence is *Jield*to establish, contrary to the verdict of the jury, that the platform was reasonably safe when he went to work on the morning of the accident, and not to show any negligence or failure of duty on the part of the defendant in respect to keeping it safe.

2. If, after plaintiff began work on the platform on the morning in question, the boards thereof were burned or became displaced so as to render the place dangerous, the defect or danger being as readily discoverable by him as by any other person in defendant’s employ, he must be held to have assumed the risk of injury.

Appeal from a judgment of the circuit court for Kenosha county: E. B. Beldeh, Circuit Judge.

*Affirmed.*

This is an action to recover damages for personal injuries alleged to be due to the negligence of the defendant. The defendant operated a brass foundry at Kenosha, Wisconsin. In the foundry the metal pots and crucibles for melting the brass were placed in a row containing thirty-two pots. Eonr cranes were provided for handling the pots of molten metal, each crane being expected to handle eight of the pots. The divisions of the pots made by the cranes were designated as “floors” among those working in the foundry. The metal pots are somewhat larger than an ordinary water pail and are placed about two feet apart. In front of the row of pots is a platform about four feet wide supported by a framework of iron. The part of the platform in front of the first floor of pots was made of strips of sheet iron. The remainder of the platform was made of loose pine boards resting on the iron *343framework. Tbe ashes and cinders from the fires under the crucibles are removed and placed in an ash pit underneath the platform. For doing this work the loose boards are removed from the platform, and after the ashes have been removed the boards are replaced upon the iron framework. Hot cinders and bits of fire are sometimes carried from the fires which are about the iron pots containing the brass when these pots are raised from the crucibles with the cranes in order to pour the molten metal into molds, and these hot cinders and bits of fire at times drop onto the pine boards and set them afire. The molten metal is'sometimes spilled upon the boards and sets fire to them. These fires are extinguished by the workmen with water standing_near in pails.

The iron pots have metal covers which slide back and forth. An iron rod with a bent end to be placed in a hole in a projecting knob on these metal covers is provided for pushing back the covers to determine the condition of the brass in the pots. The workers are more or less accustomed to push off the covers by a kick upon these knobs. A caster and one or two helpers are engaged on each floor of pots. Plaintiff was a helper when he was injured. The defendant had provided a carpenter for replacing the boards which might be burned or otherwise damaged. Defects were reported by the caster and transmitted to the carpenter.

Plaintiff when he was injured was kicking or pushing off the cover of one of the pots on the third floor in order to determine whether the metal was ready for pouring. In doing this the board under his left foot tipped or broke. ITis left foot went into the ashes under the platform and his right foot was plunged into the pot of molten metal, causing the injuries for which he seeks damages. .The injury was sustained between 8 and 9 o’clock on a Monday morning. The plaintiff had been at work for something over four hours. The evidence showed that on the previous Saturday evening, between the hours of 9 and 11, the platform had been left in repair *344by tbe carpenter and bad been swept and inspected by tbe caster wbo bad charge of tbe pots on floor 3 and by bim found sound.

Tbe jury found that tbe defendant bad negligently permitted a defect to exist in tbe platform and that it had existed for a sufficiently long time for tbe defendant in tbe exercise of ordinary care to have repaired it. Plaintiff was found to have been free from contributory negligence. Tbe court granted defendant’s motion for judgment notwithstanding tbe verdict, bolding that the evidence failed to show that tbe defendant was negligent as charged, and that, if tbe floor was defective and unsafe, the plaintiff in tbe exercise of ordinary care knew it or ought to have known it. This is an appeal from tbe judgment so ordered.

For tbe appellant there was a brief by *Calvin Siewart*and *Wallace*Ingalls, and oral argument by *Mr. Ingalls.*

For tbe respondent there was a brief by *Harper & Mc-Mynn,*attorneys, and *Peter Fisher,*of counsel, and oral argument by *P. N. McMynn.*

Siebecker, J.

Tbe plaintiff’s objection to tbe dismissal of bis complaint, on tbe ground that defendant’s liability was not established, presents, first, the inquiry: Does tbe evidence tend to show that tbe defendant negligently omitted to furnish plaintiff a safe place in which to work ? It is contended that tbe evidence is sufficient to support tbe claim that tbe floor on which plaintiff worked at the time of injury was defective and unsafe. This claim calls for consideration of defendant’s duty to provide a reasonably safe place for plaintiff to work in tbe double aspect of its duty to furnish bim such a place when be was first put at work and its duty to exercise reasonable care to maintain tbe safety of this place during tbe time be continued to occupy it in tbe course of bis service.

> *“A*reasonably safe working place having been furnished tbe servant, tbe absolute duty in that regard is satisfied. Then becomes active the secondary duty to exercise ordinary *345care to preserve for tbe servant tbe reasonably safe condition of bis working place. In case of its becoming unsafe during tbe course of bis employment,. and tbe servant receiving an injury thereby before tbe master has knowledge of tbe existence of tbe danger or has reasonable opportunity to obtain such knowledge, and reasonable opportunity to remedy tbe danger, be is not liable.” *Howard v. Beldenville L. Co.*129 Wis. 98, 108 N. W. 48.

Applying these principles to tbe case before us, the first inquiry is: Was tbe working place furnished plaintiff by tbe defendant a reasonably safe one when be went to work on tbe morning of tbe Monday on which be was injured *%*Upon this subject we have tbe positive testimony of tbe carpenter that be examined tbe floors on Saturday and found them in good repair, that of tbe caster who'swept and cleaned floor No. 3 and observed that it was in good condition, and that of another caster tbat be cleaned tbe floor adjoining tbe one complained of at 9 o’clock tbat night and then passed over tbe one in question and observed tbat it was in tbe condition in which it bad been usually used. Other witnesses testified to tbe same effect. It also appears tbat tbe plaintiff bad been working on these floors, knew of what material they were made, bow tbe boards were placed over tbe asb pit, and tbat they lay loose on tbe iron framework. On tbe morning when he went to work be could see aud observe it and saw nothing tbat indicated a defect. Tbe only evidence relied on to warrant an inference tbat tbe floor was not safe when plaintiff went to work on Monday morning is plaintiff’s statement tbat lie beard tbe sound of a breaking board when be fell, and tbat of another witness who states tbat, when be looked at tbe place immediately after tbe plaintiff fell, be saw tbat one board was tipped. Tbe plaintiff’s statement tbat be beard tbe noise of a breaking board cannot be held to show tbat tbe board was defective and broke, because tbe direct testimony of all who saw tbe board thereafter is tbat they .found tbat it was not broken and tbat it was in its place. This evidence, therefore, is too vague, uncertain, and speculative to permit of an infer*346ence that the place, was not safe, as to- the strength of the boards, when the plaintiff went to work in the morning. The statement that the board was tipped is not evidence that it was defective, for it appears that all of the boards over the ash pit were loose and could be turned up. There is no claim that the manner in which this floor was constructed constituted a defect, and, as was shown, it was constructed in that way to enable defendant to empty the ash pits underneath. The evidence therefore established that the defendant furnished the plaintiff a reasonably safe place when he started work on Monday morning.

The inquiry then arises: Did defendant exercise reasonable care to preserve plaintiff’s working place in a reasonably safe condition during the time he worked on the floor on Monday morning before he was injured ? It is urged that, if the place was safe when the plaintiff began working Monday morning, the evidence tends to show that it became dangerous during the time it was being used that morning in prosecuting defendant’s business, and that the defendant was negligent in not ascertaining its dangerous condition and in not repairing it before the injury. The trial court held that there was no evidence tending to show defendant negligent in this respect, and we find no evidential facts tending to support this contention. The defendant’s representatives, charged with making repair of any defects which might arise during the working hours, were not informed or notified before the accident happened, by the casters or plaintiff, of any defects in this floor which, it is claimed, had arisen during the progress of the work during the morning. Nor is there evidence that they carelessly omitted to observe such defects or to give them proper attention during this period. Under such circumstances defendant’s conduct is free from the charge of having negligently omitted performance of the duty to maintain a safe working place for the plaintiff.

It is asserted with confidence that the court erred in hold*347ing that if the place became unsafe through defendant’s negligence while the plaintiff was at work, then he is precluded from recovery because the defect was. one obviously within his view and observation and he assumed the risks incident thereto. It seems clear that if, after plaintiff began work, the boards were burned or became displaced on the iron framework so as to render the place defective and dangerous, then this state of things would be as readily observed by the-plaintiff as by any other person engaged in the service. • The-place was within his constant view and had been used by him. continuously. As stated by the trial court in passing opinion on this point:

> “x\n employee cannot . . . close his eyes and senses to' dangers that are obvious or which, in the exercise of ordinary care, are discoverable, and then, when injured, claim immunity from responsibility.”

It is manifest that if a defect such as is complained of existed, it was as readily discoverable by the plaintiff as by any other person in defendant’s employ. Under these conditions the plaintiff must be held to have assumed the risk of injury and he cannot recover against the defendant. *Relyea v. Tomahawk P. & P. Co.*110 Wis. 307, 85 N. W. 960; *Grams v. C. Reiss C. Co.*125 Wis. 1, 102 N. W. 586; *Stork v. Charles-Stolper C. Co.*127 Wis. 318, 106 N. W. 841; *Rahles v. J. Thompson & Sons Mfg. Co.*137 Wis. 506, 118 N. W. 350.

The court properly awarded judgment dismissing the complaint.

*By the Court.*— Judgment affirmed.