Shanke v. United States Heater Co.

Grant, J. (after stating the facts). The instruction was correct. - The theory of the declaration is not that sound inch boards were not sufficient, or that the ground was soft, but the sole theory of the declaration is that the boards were uneven, unsound, rotten, unsafe, and defective, in consequence of which the place was unsafe. Plaintiff cannot now recover upon the theory that sound boards were not sufficiently strong, or that the ground was soft, so that the ends of the boards would be pressed [349] into it by tbe weight upon them. If, however, we assume that the declaration was sufficient, still plaintiff has no right of action. He was familiar with the character of the earth, and knew that the effect, when the wheel reached the end of a board, would be to press it down into the ground. This effect was as apparent to him as to any one. He and his co-employé were furnished with sufficient material to make the passageway safe. This is not a case of permanent passageways, upon which employés have a right to rely. The employés made such passageway for themselves, and could either have filled in at the ends of the boards with earth, or have placed a board underneath, or have put down two boards. The doctrine of safe place has no application to this case. The defendant was guilty of no negligence. Whatever danger there was was apparent, and assumed by the plaintiff. Judgment affirmed. The other Justices concurred.