This section contains the nature of the case and procedural background.

Mayhew (P) was working as a contractor for the Sullivan Mining Co. (D). During the course of P's work, one of D's workers cut a hole in the platform near where P was working. This workman did not mark or identify the hole and did not tell P of its existence. P fell through the hole, causing serious injury. P sued, claiming D had 'carelessly and negligently cut the hole without placing a barrier or warning by it.' At trial, the court refused D's question of whether or not it was a custom to mark holes that were dug in the platform. The jury found negligence and returned a verdict for P for $2500. D appealed, claiming that since they were conforming to custom, they were using average ordinary care.

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