CARSTENS PACKING CO. v. GODO, 208 F. 8

GILBERT, Circuit Judge (after stating the facts as above). The contention of the plaintiff in error is that the court below erred in denying, at the close of the testimony, its motion for an instructed verdict in its favor. The assignment raises the question whether or not there is any evidence in the record to sustain the verdict, and not the question which is discussed in the brief of the plaintiff in error, whether the evidence is sufficient to justify the verdict.

It is urged, and it may be said that there is force in the argument, that the defendant in error was not directed to go to the particular place where he went, and that in passing between the elevator guides he unnecessarily exposed himself to danger.

But, on the other hand, it is to be considered that the foreman knew, or should have known, that having refused to permit the defendant in error to remove the plank above the place where the measurement was to be made, the only other way to approach it was to go underneath the glue house, and that an em~ ployé in passing underneath would probably take the route which the defendant in error took. It was the direct way.

It is fairly inferable from the testimony that it was a way marked by planks upon which to walk, planks which had been used there for that purpose, and left there at the time when the elevator cable was repaired. To have gone any other way would have required the defendant in error to wade through mud and filth. The defendant in error did not know that the cable had been lengthened, and he had no reason to' apprehend danger from the counterweights, unless he was put upon notice of danger from his knowledge of the fact that shortly before the accident the elevator cable had been broken and had been repaired.

We do not think that it should be held that the breaking and the repairing of the elevator shaft imported notice to him that the cable was lengthened, or that thereafter the counterweights would extend below the place where they had halted during the operation of the elevator for the prior five years. The most that can be said is that the question so presented is one upon which the minds of reasonable men might differ. If so, it was a proper question to be submitted to the jury. It is not established by the evidence that the danger was obvious, or known, or ought to have been known, by the defendant in error.

His employer had taken the precaution to box in the space between the guides in which the elevator weights ran in the rooms above the lowest floor. Probably there was no occasion to observe a similar precaution in the space beneath the floors, but all the employés who had occasion to go there for any purpose connected with their duties were entitled to notice that the condition which had existed for so many years was now changed, and that the counterweights in their travel now went below the lowest floor. We find no error. The judgment is affirmed.