
    No, 10,610.
    Spiridione Pollich et al. vs. T. J. Sellers & Co.
    1. When the plaintiff proves that the defendant’s negligence has caused the injury, the defendant may prove that the plaintiff, by his want of care, contrib - uted to the cause of the injury, and that he, by the exercise of ordinary prudence, might have avoided the accident and the injury.
    2. The employer, although not blameless, can not be made to answer for all accidents without regard to the care the employe should have exercised. To recover, there must not be any wilful contributory cause on tliepart of the injured.
    3. An employe should not voluntarily expose himself to imminent and apparent danger. If he does and suffers injury the negligence of the defendant will not excuse his imprudence and the consequence of his rashness.
    4. The employe, by remaining in the employer’s service after the discovery of imminent and threatening danger incident to his work, is deemed to have assumed the risk.
    APPEAL from the Civil District Oourt, Parish of Orleans. King, J.
    
    
      Harry H. Hall for Plaintiffs and Appellants:
    1. In eases of contributory negligence the burden of proof is upon defendant. Am. and Eng. R. R. Cases, Vol. 31, p. 176; Vol. 23, p. 317; Vol. 28, p. 341; Vol. 29, p. 495; Vol. 24, p. 395; Vol. 29, p. 297; Vol. 19, p. 220; Vol. 28, p. 360; Vol. 15, p. 414; Vol. 14,p. 670.
    2. It is not contributory negligence per se to engage in a dangerous occupation. Knowledge does not necessarily constitute contributory negligence. One may exercise due care with full knowledge of the danger to which he lawfully exposes himself. If the danger is so glaring that, with the utmost skill and prudence, the danger is still imminent, it is contributory negligence for one to expose himself to it; but it is not so, if the danger is such that one maybe reasonably expected to avoid it by the exercise of skill and prudence. Beach Contrib. Nog-., See. 139, p. 370 ; 4 So. ltep., pp. 146,148; Roach Contributory Keg., See. 12, p. 40; 62 Mo. 35, 39,232; 65 Mo. 514; 20 Minn. 9,19; 78 Mo. 195; 82 N. Y. 370 ; 3 Col. 499; 110 Mass. Pord; 59 Mo. 495 ; 42 Wis. 584 ; 8 Allen 450; 146; 4 So. 62 Mo. 35; G5 Mo. 514.
    3. Ii llio employer carries on his operations in a dangerous and recklessly negligent manner, and the employe is injured thereby, the latter is not precluded from recovery, even though he had lull knowledge oí the manner in which the operations were conducted. 4 South Hast. Rep. 211.
    4. Slight negligence on the part of the employe will not bar recovery where the 'negligence of the employer has been comparatively much greater. 36 Wis. 92; Beach 21; 73 111. 236.
    5. Wlioro the employe acts upon a reasonable supposition oí safety induced by the employer, when there is in reality danger, the employer is estopped to set up that his employe’s conduct is negligence. Reach Contrib. Keg., See. 23, p. 71.
    0.The rule of proximate cause has no application to cases where the contributory negligence complained o£ is not an act contributory to the injury, but is simply knowledge. Reach Contrib. Nog'., pp. 7, 26, 35.
    
      Rice & Armstrong for Defendants and Appellees:
    1. This case is governed by the decision in Casey, Tutrix, vs. Sellers & Co., 41 An. 500 — the death oí Pollieh having boon caused by the same accident that caused the death o£ Casey; Pollieh and Casey being fellow-workmen in the same gang.
    2. The defence of Contributory Negligence finds in this ease the additional support that the placing o£ the wire guys under the row of trusses, which were liable to fall, was known to X’ollicU, and was tlio act of himself and his fellow-servants.
   The opinion of the court was delivered by

Brbaxjx, J.

The causes of the fatal accidents, whereby three nren lost their lives, while at work, in demolishing the exposition buildings in this city, are fully recounted in two cases decided by this court.

The first case, that of Mrs. John Faren vs. T. J. Sellers, 39 An. 1011, is similar in many respects to the case at bar.

John Faren, whose death gave cause for this suit, met his death two days before-Oasey and-Pollieh fell.

In the case of Faren, the injury was occasioned by the fall of a purline, which slipped from its support and precipitated him some seventy-five feet to the ground-

The defect ivas not patent. It was therefore held that he had not assumed the risk incident to the service.

In the case of Óasey, reported in 41 An. 500, the injury was occasioned by the falling of a row of trusses under which he was working.

The building had been stripped to the danger point; the purlines or rafters had been taken down; the skeleton of the structure remained.

In this case the accident was occasioned by the falling of the timbers that killed Casey, at the same time .that it occasioned the death of -Pollich.

The status and the extent of defendants’ fault are established.

Only the question of contributory negligence is to be settled at this time.

Complete statement of the facts having been made in the decisions reported, it only remains necessary to state those not proven in those eases.

The deceased was working on the loft of the building, taking down the trusses, on the 13th of August, 1886.

Lynch his employer, who had contracted with the defendants to take down what remained standing, of the main building and the government building, in the prosecution of his work had advanced a derrick to the trusses and had commenced taking down from Magazine street toward St. Charles street.

The derrick was made secure by wire guys. Those on the side of the building were placed under the trusses. They extended from near the top of the derrick to the ground, and were made secure below at a point under the trusses known to be insecurely attached to the building.

A row of trusses fell; one of them fell upon the guys which held the derrick in place. They had been so weakened by the stripping of the building that they fell of their weight, without the least touch.

The span nearest to the derrick was attached and swung to it, and was about to be lowered to the ground.

While the span or truss was so attached and swung to the derrick, one of the inside trusses suddenly fell, carrying down other trusses, one of which fell on the guys which held the derrick in position and carrying down with the derrick the span attached and which was about to be lowered to the ground.

At the time the derrick fell, Pollich was standing on the truss which was swung to it. The fall carried him down and was the occasion of his death.

The dangerous condition of the building and the danger incident to the work of demolishing it,at that particular time,are settled questions.

It only remains fio be ascertained whether the fall of the trusses on the wire guys and the consequent fall of the derrick were accidents which the deceased by ordinary care could have foreseen and Which he might have avoided.

In Casey’s case this court has decided, that he (Casey) might, by the exercise of ordinary care, have avoided the consequence of defendant’s negligence, and that he, by his own act, contributed to the injury.

In the case at bar the danger was more imminent and apparent.

Casey was below at work when the trusses fell upon him.

Pollich at the time was aloft in a position which at once suggests imminent peril.

There was fatality in the imprudence of trusting his weight on a derrick secured by wire guys placed under insecure trusses, of an unsafe building at an elevation of seventy-five feet from the ground.

After the first fatal accident, which had resulted in the death of Paren, two of the men left the work. They refused to expose themselves longer to the threatening danger.

It had been discussed; the men wefe warned. Pollich had been at work about three weeks. The large structure had been made quite unsafe by stripping.

It was the part of an ordinarily prudent man to take needful precaution at every step of the work.

In continuing he assumed a risk of which he was informed or of which he would have been informed had he given himself the concern required by ordinary prudence.

He must have known of the defect and danger.

It is held that the servant, by remaining in the master’s employment after discovery of the defect or after knowledge, is deemed to have assumed the risks incident to the service and to have waived any claims for damages in case of injury. Whitaker’s Smith on Negligence (note) p. 397.

The causal connection between the employer’s negligence and the injury is broken, at the time the danger becomes so plain, that a person of ordinary care would not assume the risk of continuing to work at the place of danger.

Judgment affirmed.  