On Motion for Rehearing.
Counsel for appellee insist that the effect of our ruling in this case was to impose upon the deceased servant the duty of inspecting the premises upon which he worked, and they reiterate the proposition that the servant owes no such duty. As a general statement of law that contention is undoubtedly correct; but the law does not mean to say that the servant may shut his eyes to an obvious danger of defect, or that he does not assume the risks ordinarily incident to the known conditions under which he performs his work. In determining what should be the normal or proper condition of premises as affecting their safety, we must take into consideration the character of the work performed, the situation of the premises, and the conditions under which the services would naturally be carried on. Lewis was an experienced employs, and apparently had been in the same service for some time previous to the accident. He must therefore have been familiar with his surroundings and the usual condition of the premises upon which he worked. The place was a shop in which locomotives, and possibly cars, were repaired by taking off broken or defective parts and replacing them with new ones. In doing this service necessarily the workmen would be required to handle bolts used in fastening on parts of the machinery, or in taking off parts, also in handling material that was taken off, and that which was to be put on. From the very nature of this kind of work the floor would become littered, to some extent at least, with bolts and material used by the workmen. To hold the master guilty of negligence because the floor at all times was not kept clear of such articles would be to make the burden, under the facts here in evidence, unreasonable. It is immaterial, so far as the merits of this case are concerned, that the cleaning up was done only once a week. The evidence conclusively shows that this shop had been cleaned up by Lewis and his associates at the close of the last work day preceding that of the accident. That it was habitually cleaned up only once a week would tend to show a fixed custom in that respect with which Lewis must have been familiar, and that the conditions existing on the day of the injury were such as were ordinarily incident to the character of business in which he was engaged. It is not necessary that we hold that Lewis was guilty of contributory negligence, but it is sufficient to say that it is not shown that the appellant had failed to perform its duty to provide him with a reasonably safe place in which to perform his work. The evidence justifies the conclusion that the premises were in such condition as might reasonably be expected from the character of the work there carried on, and such as must have been known to Lewis as their usual condition.
The motion is overruled.