Frederick

Appeal by plaintiff from an order granting defendant’s motion for a new trial.

The action is to recover damages for personal injuries sustained when plaintiff fell into a hole dug by defendant.

Plaintiff was employed as a machinist’s helper by Barbara Ann Bakery Company, called Barbara Ann. He had worked for Barbara Ann about a year, and worked at night. Plaintiff’s duties consisted of cleaning and maintaining machines used to wrap bread and sweet goods. Defendant was engaged in alteration and construction work for Barbara Ann at its plant. Plaintiff knew the construction work was in progress. At the plant there was a yard area with various buildings surrounding it, including the machine shop. In doing its work defendant dug four holes in the yard through the asphalt adjacent to the machine shop for footings for the extension of the wall of the machine shop and had left mounds oE earth throughout the yard. The hole into which plaintiff fell was 2 feet wide by 2 feet long and 3 feet deep. There were no covers over the holes and no barricades or warnings of the existence of the holes.

The accident occurred on Monday morning, August 26, 1957, between 4 and 5 a. m. It was dark.…