
    DODGER vs. WANAMAKER.
    A man who places himself in a dangerous position while working cannot recover from the employer for an accidental injury occasioned by the negligence of a third person.
    No. 220 January Term, 1882. Error to Court of Common Pleas, No. 2, of Phiiladelpha county.
    The facts of the case appear in an opinion refusing a rule to take of a non suit filed by
    Mitchell, J.
    The main outline of facts can be very briefly stated. A large excavation was made under the pavement in front of defendant’s store for the purpose of putting in new boilers. The excavation which extended to the curb line had been fenced on the side toward the street, but on the day of the accident part of the fence had been removed for convenience of the workmen in taking the bricks down to the sub-cellar to wall in the boilers. Plaintiff came with a load of bricks, dumped them in the street at the point where the fence had been removed, and while pulling down the bed of his cart a wagon came along driven at a rapid rate, and striking his wheel turned his horse and cart around and pushed him and his horse into the excavation.
    Passing by the question of proximate cause of the accident so fully argued by counsel, we think it clear that plaintiff cannot recover. He was familiar with the place, had hauled bricks there frequently before and testified that he knew it was dangerous to go so near with his horse and cart. If he had chosen a place a little further north or south he could have dumped the bricks at a point where the excavation was guarded. If it was necessary for him to dump the bricks just where he did it was a risk incident to his employment. If,. however, it was not necessary (and the evidence was quite ■clear to that effect), then it was his own negligence to do so.. In either case he cannot recover.
    The fact that plaintiff says he was told by one of Capehart’s men to dump the bricks as near the ladder as he could is not sufficient to change the case. Capehart, himself, was but a sub-contractor and no authority is shown in the man to give any orders in the name of any of the defendants. It was simply the request of an ordinary workman and mason who was to use the bricks down in the cellar to have them put where most convenient to him.
    Rule refused.
    Dodger then took a writ of error complaining of the rejection of evidence and the entry of the non-suit.
    
      Hennershotz, for plaintiff in error.
    
      Hanson, contra.
    
   The Supreme Court affirmed the judgment of the Common Pleas on April 17, 1882, in the following opinion :

Per Curiam.

We affirm this Judgment upon the opinion of the learned Judge on the motion to take off the non-suit in the Court below. There was nothing in the evidence admitted and rejected contrary to the exception of the plaintiff which would have helped the case had the ruling of the Court been different.

Judgment affirmed.  