Opinion,
Mr. Chief Justice Paxson :The third specification of error is decisive of this case, and will be alone considered. It is as follows:
“ The court erred in not giving defendants an unqualified affirmance of its second point, which point and answer are as follows:
“ ‘ It being the uncontradicted testimony that the coal chute was made into a stairway at the request of, and in the manner directed by the plaintiff himself, he cannot recover for any injury from the use of them; there being no proof of a defect in the construction, or negligence on the part of defendant in the care of them.
"Answer: The second point is refused. I do not under*136stand the evidence on that point to be uncontradicted. I understood the plaintiff himself to deny it. If the fact be as stated in the point, the verdict should be for the defendant.’ ”
The fact was as stated in the point. Mr. Call, Mr. Grindell, and Henry Johnson, testify distinctly that the cleats were nailed on the chute at the request of the plaintiff, to enable him to go up and down more easily. All this, perhaps, would not have justified the affirmance of the point, as what the witnesses said was for the jury; but when we turn to the plaintiff ’s own testimony we find the following:
• Q. What facilities were there for getting up to the tipple when you first took charge of the engines ? A. When I first took charge of the engines, there were cleats nailed across the upright posts of the trestle-work. At the upper end of the works they had a trestle-work to climb up. These cleats, I suppose, were from twenty-four to thirty inches apart. It was very difficult to get up there. I had talked about that. It was a very bad place to go up.
Q. Was there any change made, and, if so, what was said and done? A. Some time after that, — I could not say the time, — William Mullen, assistant superintendent, came to me, and asked me if there was some place that they could put up a temporary way to get up; that, as soon as they catehed up with their work, they would put a pair of good stairs there.
Q. Was any temporary arrangement put up, and, if so, what was it ? A. I told Mr. Mullen I thought there could be a temporary arrangement put up the boiler-chute, running up from the boiler-chute to the trestle-work, and he agreed to do it, and the carpenters went to work, and nailed cleats on the boiler-chute up, I suppose, twenty-five feet, and then there was a ladder run from that up to the top of the trestle.
. This renders it perfectly clear that the cleats were nailed on, not only with the knowledge of the plaintiff, but at his request. It was a plan of his own contriving. If it was dangerous, he knew its danger: and, even if we are mistaken in the fact that the plaintiff requested and suggested the arrangement, the danger of using it was patent. He was not obliged to go up and down there, as there was another and safe way provided, though not, perhaps, as convenient. In any view of the case, the plaintiff was not entitled to recover.
Judgment reversed.