#### The Litchfield Car & Machine Company v. J. Milton Romine, Administrator.

Master and Servant—Negligence of Master—Personal Injuries— Assumption of Risk—Evidence—Instructions.

In an action by an administrator to recover for a personal injury alleged to have been occasioned by a master’s negligence, this court bolds, in view of the evidence, that the judgment for the plaintiff can not stand.

[Opinion filed June 12, 1891.]

Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.

*643Messrs. McWilliams & Son and Jambs M. Truitt, for appellant.

Messrs. Lane & Cooper, for appellee.

Wall, J,

We have examined the evidence very carefully and find it quite uncertain whether the alleged “sag” in the pipe, which is supposed to have caused the injury, was there when the pipe was first put in place, or whether it was produced afterward ; it may have been the one way or the other; but in either case, as the deceased helped and took an active part in putting up the pipe, and as he ran the engine constantly from that time up to the accident, a period of some two years, there is much reason to say that he was chargeable with notice of it and should have called the attention of the employer to it if he considered it unsafe.

No one had a better opportunity than he to know how it was and if he knew and made no complaint he assumed whatever of hazard and risk it involved. It was, therefore, error to give the fourth instruction asked by plaintiff, which must have had a controlling effect upon the jury, and for the same reason it was error to refuse the nineteenth and twentieth asked by defendant. .The judgment will be reversed and the cause remanded.

Reversed <md remanded.