last time he stepped up one step higher than he had been before. The step tipped and he fell to the floor and was injured. The plaintiff had never used the ladder prior to the morning of his injury but had seen it in the defendant's property room. In his use of the ladder the plaintiff placed his hands on the sides as he ascended and descended. There is no evidence that anyone noticed that a step was loose or would tip prior to the accident. When one of the plaintiff's fellow workers picked up the ladder after the accident he noticed that the second or third step from the top could be titled back and forth. It does not appear whether this is the step that causedaverage stepladder but it was otherwise of usual construction and there is no intimation that the height of the ladder in any way contributed to the accident. The plaintiff was several steps from the top when he fell. He set up the ladder in the first instance and ascended and descended some eight times over a period of about an hour prior to the accident.
Much stress has been laid on the testimony that the ladder was "rickety", or as one witness states "wobbly", and had been in that condition for a number of years. None of the witnesses testified that knowledge of this condition was acquired through special inspection or any unusual examination. The inference is that the rickety condition was obvious. If this be so, its condition