#### Leo Legowski, Plaintiff in Error, v. Moreland & Company, Defendant in Error.

Gen. No. 21,081.

(Not to be reported in full.)

Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.

Heard in this court at the March term, 1915.

Affirmed.

Opinion filed December 6, 1915.

Statement of the Case.

Action by Leo Legowski, plaintiff, against Moreland & Company, defendant, in the Superior Court of Cook *378county, to recover for personal injuries received by plaintiff while employed by defendant, as a result of a fall from some uncovered floor joists across which he was walking in a building under construction by defendant. To reverse a judgment of nil capiat for defendant entered on a verdict of not guilty, plaintiff prosecutes this writ of error.

At the time of the accident plaintiff was forty-one years old, with fifteen years’ experience working on buildings. He had worked on the present building four or five months as a general laborer, carrying brick, etc. He testified that he was ordered by the foreman to carry bricks to a bricklayer; that to reach the bricklayer it was necessary to cross on floor joists which were uncovered, and plaintiff said to the foreman that planks should be laid on the joists over which he could walk, but the foreman said this was unnecessary; that as plaintiff stepped on a joist it “wabbled” and he fell, striking his side on the edge of the joist. On the contrary there was sufficient testimony to cause the jury to believe that nothing was said by plaintiff or the foreman about planks; that plaintiff was thoroughly experienced in walking over uncovered joists and that that whs the customary thing for workmen to do; that the joist in question was not loose and did not “wabble”; other, workmen had walked on it and noticed nothing wrong with it; that plaintiff fell because he stepped on a mortar board lying on the joists, which tipped.

Gallagher & Messner, for plaintiff in error.

Ralph F. Potter, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice McSurely

delivered the opinion of the court.

*379Abstract of the Decision.

1. Master and servant, § 137 * —when judgment for defendant sustained. In an action by an employee to recover for personal injuries due to a fall from uncovered floor joists in a building under construction, where plaintiff was working as a general laborer, evidence held to sustain a judgment for defendant.

2. Master and servant, § 137 * —when structural act inapplicable. In an action to recover for personal injuries sustained by plaintiff as a result of falling from joists across which he was walking while employed by defendant as a general laborer, instructions which ignored section 1 of the “Structural Act” (Hurd’s Rev. St., ch. 48, J. & A. ff 5368), relating to the construction of scaffolds, hoists, cranes, etc., held not erroneous for the reason that plaintiff’s fall was not due to defects in any of the appliances mentioned in that statute, which' had no application to the case.