Fidelity Storage Co. v. Hopkins

44 App. D.C. 230, 1915 U.S. App. LEXIS 2712

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 6, 1915
• Docket: No. 2831
• Status: Published

Opinions

Mr. Chief Justice Shepard

delivered the opinion of the Court:

If an employee has knowledge of the circumstances under which the employer carries on his business, and accepts the employment, he assumes such risks as are open and obvious. Anderson v. Smith, 35 App. D. C. 93-95.

It appears from the noncontradicted evidence in this case that the scaffold was not in itself unsafe or insecure. It was open to the view of the intestate, and he engaged in labor upon it. It may have been a risk for him to mount on the short stepladder placed oh the planks, but, if so, it was a matter within his observation, and he assumed the risk of it.

There is nothing in the testimony to show that the foreman’s, Gant’s, presence on the scaffold caused the plaintiff to fall. The scaffold did not fall, nor did the boards break.

IIow the accident occurred is purely a matter of speculation. If the witness Edwards is to be believed, that he saw that the boards of the scaffold were springing in the middle before intestate mounted it, and warned him, saying, “I wouldn’t go up there if I were you,” and, having his attention specially called to the, springing of the boards, plaintiff’s intestate went upon them, and placed his short stepladder, and mounted the same to proceed to work, the reported remark of the foreman, Gant, that “It’s all right,” did not warrant intestate in taking the risk.

We are of the opinion that no negligence of the defendant was shown by the evidence, and that intestate assumed whatever risk there was. o

The court should have given the refused instruction.

The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.