W. H. McELWAIN CO. v. BULLOCK, 217 F. 962

BROWN, District Judge. This is a writ of error for review of the rulings of the District Court in an action of tort, wherein the plaintiff, Elizabeth M. Bullock, here defendant in error, had a verdict. Upon the trial before a jury the defendant, W. IT. McElwain Company, at the conclusion of all the testimony, both on behalf of plaintiff and of defendant, moved for the direction of a verdict in its behalf, on the ground that the evidence was insufficient in laiy to sup-, port a verdict for the plaintiff.

While there are 18 assignments of error, we think it sufficient to consider whether there was error in the refusal of defendant’s request for the direction of a verdict in its favor. The plaintiff, Elizabeth M. Bullock, was employed as a vamper in the shoe factory of W. IT. McElwain Company, at Manchester, N. H., and operated a sewing machine at a bench whereon were a number of machines, over each of which was suspended an ordinary electric light.

The plaintiff was required to be at work at quarter before 7 o’clock a. m., and arrived at the workroom at 20 minutes before seven, on January 4, 1910, when it was still quite dark. The entrance to the factory and the stairways were artificially lighted, but there was no artificial light in the workroom. The only means of artificially lighting the interior of the room was by electric lights suspended over each machine. The plaintiff testified that when she entered the room it was light enough so that she could see and get around, and could easily go to her machine.

When she arrived at her machine she reached up to turn oil the light, but was unable to do so because the current had not been switched on from the main switch controlling all the individual lights in this room, which was situated in a box beside the door on the lower floor. The key to this box was in the possession of a foreman, whose duty it was to turn on the switch when he came in the morning. Plaintiff testified that it was so dark she could not see the floor as she stood there.

The plaintiff then took off her coat, and, for the purpose of hanging it up on hooks, which had been provided for this purpose by the company, on a post back of her machine, placed a chair against a bench back of her, stepped on the chair with her coat upon her arm, and was stepping from the chair to the bench, when the chair tipped and threw her to the floor, inflicting injuries to her knee.

She testifies that the light was thrown on two or three minutes after she fell, and that she looked around where she had set her chair, and saw what is called a “wire of shoes.” A wire of shoes is described as a four-pronged structure of wire, on which were strung the tops or uppers oí shoes. They were strufig 12 pairs on a wire by the operatives, and as a wire was finished it wás, in ordinary course, thrown by the operative into the aisie behind her, where it was picked up by a boy.

Though she did hot so staté diféctly, the inference was suggested that her chair had been placed upon this, and ior that reason had tipped. There was evidence that in Order to hang up her garments upon the hooks provided for this purpose it was necessary for her to climb a chair and step from that to the bench, and that no other means were provided for that purpose; that she had done this all the time she had worked in this place — ábout 4 years.

On cross-examination she státed that she put both feet on the chair, and put her right foot on the bench, when the chair tipped over to the left; that her knee hit the chair, and also struck the floor. The defendant in error argues that the jury would have been warranted in finding that the master, in the exercise, of a reasonable degree of care, should have provided a place to hang coats and hats, the use of which did not require a climb upon a bench, or should have provided á method of stepping on to the bench, involving the use of something less insecure than a light kitchen chair.

It is argued, also, that the master was at fault in a failure to light the place and to keep the floor free from obstructions.

The jury were instructed in the following language: “You may think, independent of the question of lighting, or independent of the question of the wire of shoe uppers, that there whs fundamental fault, and that the place was unsafe, and in getting up there, either with or without light, or knowing about the string of uppers, or not knowing about them, that if the woman while in the exercise of reasonable care, by reason of the fundamental fault of furnishing an insecure and unsafe place, was injured.

If thát is your view, you have a right to decide the case upon that ground alone, if that is in accordance with your judgment. Some of you may take that view; some of you may not; possibly none of you will take that view.” As to this branch of the case, it is quite clear that; if risk was involved in stepping 'from á chair to a bench, it was a risk which was obvious to a woman of 27 years of age, who had done this for 4 years, and that such risk was known and assumed.

It remains to consider how far this risk was affected, if at all, by any other negligence of the master. , There is no contention that the electric lighting system in itself was defective. The negligence attributed to the master is that the light was not turned orí, and thát the wire of shoes was not removed from the floor.

Assuming that the absence of light may have contributed to the accident by concealing the wire of shoes on the floor, or possibly making uncertain the step from chair to bench, it does not appear thát there was any necessity for the plaintiff to attempt to place the chair or to step upon the bench before the light had been turned oh. The testimony shows that the electricity was turned on within two or three minutes, arid before the time at which she was required to go to work. The clearing of the wires of shoes from the aisles is shown to have been the duty, not of the master, but of a fellow servant.

Tlie risk from moving about in the dark, or from, insecurely plácing a chair in the dark, was not a risk required by her employment,, or properly incident thereto, but an ordinary and obvious risk, which was voluntarily assumed. We are of the opinion that the defendant’s request for the direction of a verdict should have been granted, and that the refusal was error. The judgment of the District Court is reversed, the verdict is set aside, and the case remanded to that court for proceedings consistent with this opinion; and the plaintiff in error recovers costs in this court.