Armstrong's testimony was such that a directed verdict for the defendant should have been given. Although there was negligence on the part of the railroad company in supplying the defective car, the danger was fully revealed to appellee when his shovel loosened the protecting board. If he had replaced it in its original position, the injury could not have occurred. It is contended that when discovered the hole was too small for appellee's foot to pass through, and that it was enlarged when decayed portions of the flooring gave way. There is no contention, however, that space not protected by the *Page 726 board was large enough to be dangerous. The simple fact is that appellee's own carelessness caused the injury after he had discovered there was a hole in the floor, and after he had, as he says, replaced the plank.
The doctrine of assumed risk is not involved. Armstrong was not appellant's servant.
Mr. Justice BAKER joins in this dissent.