HOLMES v. JUNOD, 68 F. 858

PARDEE, Circuit Judge, delivered the opinion of the court. The evidence in the case tended to show that the boy in charge of the elevator and other agents of the plaintiff in error were warned that the defendant in error was to be put to work in the elevator, shaft to do the painting required by the Schneider contract, and that assent was given to the proposal to stop running the elevator while said painting was being done.

Whether this, with the other circumstances shown, was sufficient notice to the plaintiff in error to charge him with negligence in permitting the elevator to be run, whereby the defendant in error was injured, was a proper question for the jury. On the facts, reasonable men might not draw the same inference's as to negligence. See Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 340.

The same may be said with regard to the question of con tribu lory negligence on the part of 1he defendant in error, as the evidence tended to show that he did take certain precautions to protect himself from running the elevator before entering upon the work.

While it is true that, from previous experience of the defendant in error while working in the same elevator shaft, as well as from the nature of the work, it may be said that the defendant in error knew the danger of the occupation and assumed the risks thereof, yet it cannot be said that, he aiso assumed the risk of negligence on the part of the plaintiff in error, and whether the plaintiff in error was guilty of negligence, as said above, was a question proper to be determined by the jury.

Por these reasons, we are of opinion that the refusal of the trial judge to instruct the jury to find for the defendant: in error on the grounds assigned was not erroneous. This refusal being the only error assigned, the judgment is affirmed.