Alexander

Respondent was in the employ of appellant at its lumber-yard in the city of San Francisco. He was standing upon a high platform engaged in removing lumber from a rack, and while so engaged he fell therefrom and received serious injury. He recovered a judgment of five thousand dollars for such injuries, and this appeal is prosecuted from that judgment, and from an order denying a motion for a new trial.

Appellant’s demurrer to the complaint was overruled, and such ruling of the court is now insisted upon as error. That portion of the complaint attacked by demurrer is as follows-: “ That said platform near said rack was carelessly and negligently constructed and built by defendants, who built and constructed said platform out of light lumber and scantling, the flooring *536 of said platform not being nailed or fastened, and with* out a railing around said platform, instead of building said platform by nailing the flooring thereof, and placing a railing around said platform; and by reason of not nailing down the flooring of said platform the boards shifted, and plaintiff in endeavoring to hold himself caught hold of a piece of said gutter lumber piled on the said rack, which piece…