
    DISREGARD BY SERVANT OF WARNING OF DANGER..
    Circuit Court of Hamilton County.
    Iliff et al v. Cavey, Administratrix.
    Decided, May 23, 1908.
    
      Negligence — Master and Servant — Assumed Risk — Error in Overruling Motion to Take Case from the Jury.
    
    Where a master orders a servant away from the place where he is at work, and gives as the reason therefor that he is afraid a wall will fall on him, and the servant disregards .the order and continues his work without changing his position, and the wall falls and he is killed, an action for damages against the master because of his death should be taken from the jury on the ground that the risk was assumed.
    
      Keam & I£eam, for plaintiff in error.
    
      Thos. L. Michie and W. W. Symmes, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The negligence charged in the petition is the failure of the defendants to furnish the plaintiff’s intestate a safe place to work; that the defendants knew and plaintiff’s intestate did not know the dangerous condition of the brick wall which after-wards fell upon and killed him.

The undisputed facts disclosed by the record are that about fifteen or twenty minutes before -the accident occurred .one of the defendants discovered the dangerous condition of the brick wall near which the workmen, including plaintiff’s intestate, were engaged; that he so informed them and ordered them ,awav to a safe place; -that two of the workmen — the deceased and one Bradley — disobeyed the order, the latter willfully and the former apparently so; that the deceased in the full possession of his sense of hearing must have heard the order, and had abundant time and opportunity to obey the same.

It is clear therefore, that the deceased with full knowledge of the danger, and against the order of. one of the defendants, voluntarily assumed the risk, and the court erred in overruling tbe motion of tbe defendants at tbe conclusion of the evidence to arrest the case from the jury.

It necessarily follows that the judgment must be reversed, and judgment rendered for the plaintiffs in error. Davis v. Somers-Cambridge Co., 75 O. S., 215.  