(dissenting).
I think the question of the negligence of the railroad company in failing to furnish appellee a reasonably safe place in which to work was properly submitted for determination by the jury in the lower court.
*584As I view the record, the case, in short, is this': The lumber ramps adjacent to the railroad track had been inspected and accepted by the railroad company, and therefore the conditions were known to it. The ramps were commonly used for the purpose of sliding timber from the platform at the top to the bottom on the sidds to be loaded on cars. The lumber and timber was customarily piled at the top of the ramps as it was unloaded from dolly cars by employees of the mill; then it was usual and customary for the lumber to be precipitated upon the skids, and it would slide to the bottom and off onto a car or the railroad track on the ground unless stops at the bottom of the ramps were there and properly adjusted. It is shown in this case that the ramps were improperly and defectively constructed in that no stops were provided for at the bottom, which was the proper and safe way to construct the ramps.
The railroad company knew, or ought to have known, that in the common use of the ramps lumber would probably or likely be precipitated at any time from the top' onto the ramps by employees of the mill or otherwise, and that the timber would slide down the ramps to the track on the ground and injure any employees there engaged in switching ears. And this is exactly what happened in this case.
The appellee was engaged in his duties on the track below, where he had been ordered by the conductor to go, and while thus engaged in this unsafe place the timber slid from the ramps, because there were no stops at the bottom, and struck appellee in the back of the head, permanently incapacitating and injuring him for life.
Appellee did not know at the time, as shown by the undisputed evidence, that the stops had not been provided for these ramps, because the lower floor of the ramps was higher than his head while he was upon the track and he could not see the upper surface of the floor; and of course, under these circumstances, he did not as*585sume the risk of this danger which was due to the fact that the ramps had been improperly constructed.
It is well within the province of the jury to decide that the railroad company might have reasonably anticipated that timbers would slide down the ramps and injure employees below at any time, because there were no stops provided in the ramps at the bottom to prevent the timber from going over and onto the track below.
Lumber stacked at the top of the ramps might for many causes be precipitated down the ramps and onto employees working on the track on the ground below unless there were stops at the bottom to prevent it. This was an unsafe situation of which the railroad company had ample notice, and this deplorable injury would not have occurred had the ramps been properly constructed with stops at the bottom to prevent the timber from sliding to the track below.
I do not think it necessary to cite authorities to sustain this position, though I shall name one leading case which supports the view I have presented, and that is the case of Kanawha & M. R. Co. v. Kerse, 239 U. S. 576, 36 Sup. Ct. 174, 60 L. Ed. 449.
Cook, J., concurs in this opinion.