McQueen

This action was brought to recover damages for personal injuries received by plaintiff while in the employ of defendant. Plaintiff recovered a verdict, and the court granted a new trial. From this order plaintiff takes this appeal.

Plaintiff’s foot was crushed by the falling of a pile.of boards which he and his fellow-servants were storing in the cellar of the Mechanics’ Pavilion.

The boards were passed down through a hatchway and put on a hand-truck and then taken to a place in the cellar, where plaintiff and a fellow-laborer lifted them from the truck and piled them. A pile which they had built up about five feet toppled over and injured plaintiff. The work is not inherently dangerous, and no one was directing in what mode the planks should be piled, nor how high. Naturally, therefore, the presumption would be that the accident occurred through the carelessness of the workmen.

Plaintiff contends that the defendant was negligent, because there were cleats upon some of the boards, of which the workmen were not informed, which cleats caused the pile to be unsteady and liable to fall. Also because the cellar was not sufficiently lighted.

If the cellar was sufficiently lighted…