#### Pawalowski, Appellant, vs. Hartford Plow Company, Respondent.

*October 6*

October *27, 1914*

*Master and servant: Injury: Unsafe working place: Assumption of*. *risk: Direction of verdict.*

In an action for injury to an employee in an iron foundry who, in 1909, stumbled and fell, either by reason of a molding board being in his pathway, or the light going out, or some . other oa'use, a verdict for defendant was properly directed on the grounds that the mere fact of the molding board being in the way did not show actionable negligence, that plaintiff assumed the risk as to uncertainty of the lights being in eon- ■ stant service, and that his injury ■ was the result of a mere accident. [Whether, if the accident had occurred after, instead of before, the recent legislation increasing the duty of an employer as to safety of working place, etc., such direction of verdict would have been proper, is not decided.]

Appeal from a judgment of the circuit court for Milwaukee county: LawebNce W. Halsey, Circuit Judge.

*Affirmed.*

Action to recover compensation for personal injury.

January 29, 1909, plaintiff, while performing bis duties as an employee of defendant, was injured. He and an associate were carrying a ladle in an iron foundry molding room. They had executed a trip and were on their return. It was dark, except for dim light from the molten iron and electric lights. As plaintiff was going toward the cupola, either by reason of a molding board in his pathway, or the light going out, or some other cause, he stumbled and fell. There was evidence tending to show there was such a board, either in the passageway or so near thereto as to be liable to interfere with movements of the ladle men, and that the lights for a considerable length of time, to plaintiff’s knowledge, had been accustomed to go out, as on the particular occasion. Plaintiff testified that he fell before the lights went *453out; that be saw tbe molding board before be fell; that be fell right after tbe lights went out; that be fell just as tbe lights went out. His and all tbe evidence was to tbe effect that tbe molding room was in its usual condition and that be was perfectly -familiar therewith. If there was a molding board in tbe passageway it bad, within a short time on tbe particular day, been placed there by one of the molders, or displaced from where piled at tbe side of tbe passageway. At tbe instant plaintiff fell be and bis associate were passing-other men who were carrying a filled ladle, requiring tbe former to give tbe latter tbe right of way. Plaintiff and bis associate bad several times during the afternoon passed over tbe place where tbe accident occurred, carrying the ladle, sometimes loaded and sometimes empty.

At tbe close of tbe evidence tbe court directed a verdict for tbe defendant.

Eor tbe appellant there was a brief by *J oseph Gr. Hirsch-*herg, attorney, and *O. II.*Hamilton, of counsel, and oral argument by ilir. *Hamilton.*

Eor tbe respondent there was a brief by *Hoe, Bullhorn & Wilkie,*and oral argument by *J. B. Doe.*

Maeshall, J.

The judgment must be affirmed. Tbe statement shows, without discussion, that whatever risks there were in plaintiff’s working place, be was familiar with and voluntarily subjected himself to.

Tbe accident happened prior to tbe late legislation increasing the duty of an employer as to safety of working place and conditions and making other changes in tbe law of negligence. Whether if such an accident should occur in tbe present state of tbe written law, tbe same result would be necessarily proper, we need not say. Quite clearly tbe trial court was justified in directing the verdict upon tbe ground that the mere circumstance of the molder’s implement being in plaintiff’s way was not actionable negligence, that plaintiff *454assumed the risk as to uncertainty of the lights being constantly in service, and that his injury was only a matter of mere accident.

*By the Court.*— Judgment affirmed.