after making the foregoing statement delivered the following opinion of the court:

The parties will be referred to as plaintiff and defendant in accordance with their positions in the court below.

There is no difference between counsel for the respective parties in regard to the law of the case. The difference between them consists indeed chiefly in their view as to what facts are alleged in the declaration.

The case was submitted without oral argument and the positions taken before us in the brief for the defendant will be disposed of in their order as stated below:

*134[1] 1. One position taken by the defendant is that it appears from the allegations of the declaration that the narrowness of the scaffold and its lack of a railing, rendering the place of work unsafe and dangerous, was apparent to the plaintiff and hence constituted an open and obvious danger, and that the doctrine of assumption of risks applies in bar of the plaintiff’s right to recovery.

But the declaration alleges that the unsafe and dangerous condition of the place of work “was unknown to the plaintiff and by the exercise of reasonable care could not have been known to him in time to have avoided the injury.” There may have been circumstances attending the particular character of the tank-work, and the consequent danger to the plaintiff in his place of work nearby, which were actually or constructively known to the defendant but were neither actually nor constructively known to the plaintiff, and which may have prevented the danger in question from being open and obvious to the latter. At any rate the declaration so alleges. Hence, upon demurrer to the declaration the court cannot say that the allegation that the unsafe and dangerous condition was neither actually nor constructively known to the plaintiff, is without foundation in fact. And so the court, cannot say, as a matter of law, that the danger was open and obvious to the plaintiff.

[2] 2. Another position of the defendant is that the plaintiff was injured as a result of a changed and abnormal-condition which arose during the progress of the work of constructing the tank, the danger of which was readily discernible to the plaintiff in the exercise of ordinary care.

The declaration, in substance, alleges that the defect in the scaffold was in its plan of construction and that — as designed and built in accordance with such design — it was unreasonably inadequate to serve the purpose for which it was constructed. The declaration, therefore, negatives *135the correctness of the position of the defendant just mentioned.

[3] 3. Another position taken by the defendant is that the injury to the plaintiff was the result of an unavoidable accident which could not have been reasonably foreseen or guarded against by the defendant.

The allegations of the declaration plainly negative this assumption.

[4] 4. Another position of the defendant is that the breach of duty alleged was not the proximate cause of the plaintiff’s injury because the defendant as a person of ordinary prudence “could (not) have foreseen in the light of attending circumstances” that the negligence charged in the declaration “might naturally and probably produce the injury.”

But the “attending circumstances” as alleged in the declaration negative this position also. It may or may not develop that the attending circumstances, as they may be shown on the trial, if one be had, may sustain such position. That, however, cannot be said of such circumstances as they are alleged in the declaration.

[5] 5. The remaining position of the defendant is that the plaintiff’s injury was due to an independent intervening cause, to-wit: the action of fellow servants of the plaintiff in falling and losing their hold and control of the iron band which struck the plaintiff.

But whether such was an independent intervening cause, would of course depend on whether there was culpable negligence on the part of the defendant in the matter of the ■alleged inadequacy of the design or plans in accordance with which it constructed the scaffold, which, it is alleged, was a contributing cause of the falling of the men and of their loss of control of the iron band, etc. If there was such negligence, it arose from the fact that the defendant, under the circumstances, ought reasonably to have foreseen *136or anticipated that such falling and losing of hold and control of the iron band, etc,, was likely to occur as the probable or natural result of such inadequate construction of the scaffold, and that is a question of fact to be decided on the trial of the case in the light of all the attending circumstances. We cannot say on demurrer that the allegations of the declaration present a case in which it appears that the defendant was free from, such negligence.

The case will be reversed and remanded for trial upon the last amended declaration filed therein.

Reversed and remanded.