Kass v. D. & L. Oil Co. ( 1931 )

Per Curiam.

The defendant was installing a gas tank into a hole dug in the sidewalk in front of a garage, and as it was doing so a part of the apparatus slipped and injured plaintiff’s leg. He sued on the grounds of negligence and was awarded $250.

The defendant appeals and sets up—•

1. The District Court erred in refusing a nonsuit on the ground that no negligence had been shown.

2. The District Court erred in finding negligence as a matter of fact, and also in finding that the defendant’s negligence was the proximate cause of the accident.

We find no evidence of negligence on the part of the defendant company. On the contrary, the evidence is convincing that plaintiff had been repeatedly warned of the danger and waived off the site, and that the accident that befell him was due to his negligence in disregarding precaution and insistently thrusting himself into the scene of operations.

The judgment below is reversed on both grounds, with costs.