The judgment of the County Court and of the Municipal Court should be reversed, with costs.
The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by. the negligence of the defendant.
The plaintiff was employed in the defendant's mill and shop and had charge of the engine and boiler room and took care of the engine and boiler. He had been so employed for three years and six months before the accident. The boiler room had a wooden floor and in a passageway near the fuel bin and under the floor was a tank which' was used as a receptacle for drippings and exhaust steam from the engine. There was a hole in the floor above this *329tank and a cover thereto, consisting of six pieces of flooring boards tongue grooved. The boards formed a part of the floor so far as appeared on the trial, were sound themselves and rested upon sound joist, the only defect in the cover being that the pieces of boards were in no way fastened together. The plaintiff knew the tank was under the- floor and what it was being used for. He had used the cover as a part of the floor during all the time he had worked there,, had passed over it and stepped on it frequently. He had seen it taken up and knew, or should have known, perfectly the condition it was in. On the occasion of. the accident he stepped upon the boards constituting the cover in such a way that they separated and let his foot through into the tank below, and he thus received the injuries complained of.
The theory upon which the jury were permitted to render a verdict for the plaintiff was that the defendant failed to inspect the cover and discover its defective condition, and to repair it before the accident. It appeared that it was the duty of the plaintiff to report to the defendant any repairs needed in the boiler room, so that they could be made, and that the plaintiff omitted to notify defendant of any defective condition of the cover in question. If any inspection had been made no defective condition would have, been discovered, except that the boards were in no way fastened together, and the plaintiff, who had seen the cover taken up, knew or must have known of that condition. Within well-settled legal principles the plaintiff assumed the risks of such condition, and no-recovery could be had for a failure by defendant to repair the same.
For the reasons stated the judgments of the County Court and Municipal Court must be reversed, with costs.
All concurred.
Judgment of County Court and of the Municipal Court reversed, with costs.