Frinier

Appellant, claiming that in the opinion of the Department filed herein the court had erroneously held the statute found at page 1112 of the Statutes of 1911 applicable to the facts of the case, and that by reason thereof the court properly instructed the jury, as provided in the Roseberry Act, that if they found that defendant’s violation of said act of 1911 contributed to plaintiff’s injury, his contributory negligence was not a ground of defense, filed its petition for a hearing in Bank. The application was granted and upon further consideration given the claim of appellant we are satisfied with the decision made in Department.

The opinion follows:

In its. petition for rehearing appellant insists that since the violation of the act (Stats. 1911, p. 1112) was,not alleged, all testimony tending to establish such fact should have been excluded, and further, that notwithstanding the act required that the “joists, beams or girders of each and every floor below the floor or level where any work is being done” shall be “covered with flooring laid close together ... to protect workmen engaged in such building from falling through joists or girders,” it should, where one falls through…