St. Louis Stave & Lumber Co. v. Sawyer , 90 Ark. 473 ( 1909 )

Wood, J.,

(after stating the facts). The rules of law to be applied here have been announced by this court in many, and in some very recent, cases. Davis v. Railway, 53 Ark. 117; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232; Ford v. Bodcaw Lumber Co., 73 Ark. 49; King-Ryder Lumber Co. v. Cochran, 71 Ark. 55; Arkadelphia Lumber Co. v. Whitted, 81 Ark. 246; Western Coal & Mining Co. v. Burns, 84 Ark. 74; Arkansas Midland Ry. Co. v. Worden, ante p. 407.

In the last case Worden was between 20 and 21 years of age. The Chief Justice, speaking for the court, said: “It is the duty of the master to give proper instructions and to warn the inexperienced servant of patent as well as latent dangers;” and, although in that case the proximate cause of the injury would have been an obvious danger to an adult or experienced person, the court, on account of Worden’s inexperience, in the absence of instruction as -tp his duties and warning of. danger, treated the question of whether Worden has assumed the risk as one of fact to be determined by the jury. Now, here it was a controverted question as' to whether appellee had been instructed as to his duties and warned of the danger incident to the work in which he was engaged at the time of his injury. Although the danger of letting the belt in its dilapidated condition down on the fast revolving line shaft might have been an obvious one to an ádult servant, and one that he would assume, without instruction and warning, on entering the service as one of the ordinary hazards incident thereto, yet to a gawky boy, ignorant, and with but limited ór no experience in such work, it would, at least, be a question for the jury to say as to whether it was the duty of the master to .instruct him in the performance of his duties and the dangers connected therewith. In the present case it was still a question for the jury to say, even if appellant had “instructed him in regard to the work of lacing and mending belts,” as to whether he understood and appreciated the dangers connected therewith when the belt was allowed to rést on the revolving line shaft. For, while there is evidence that appellant told appellee and others to hold a belt while being laced “clear from the line shaft and the pulleys,” there is no testimony that appellant instructed appellee of the specific danger in not so holding it. It can not be said as matter of law-that a boy of the restricted knowledge and experience of appellee would understand and appreciate the danger unless specifically advised of it. In Davis v. Railway, 53 Ark. 117, Chief Justice Cockriee said: “Knowledge of the fact that the rails were unblocked did not necessarily imply knowledge of the attendant danger. Knowledge of the danger was of itself a question of fact; and, if the jury believed that the deceased, by reason of his youth and inexperience, did not know of or appreciate the danger incident to service about the unblocked rails, and that the company had exposed him to danger without warning him of it, they should have found that the risk was not one he had assumed by entering the service.”

The charge of the court submitted the questions of negligence, contributory negligence, and assumed risk upon instructions that were exceptionally free from error. The charge as a whole evinced a clear comprehension of the law in such cases, as it has been declared by authorities generally and the numerous decisions of this court. The charge is set forth in the statement of facts, and it is unnecessary to discuss those instructions to which specific objection was made. To do so would be but a reiteration of former holdings.

Of"the instructions refused, the second and third ignore the principle we have just discussed, that appellee must have understood and appreciated the danger before he could be held to have assumed the risk.

The modification to the fourth was in accord with the evidence, and was not complete' without the addition. Under the evidence showing that the superintendent, who had full control over appellee, was present when the belt was being laced, the'instruction, without the modification, would have been misleading, erroneous and prejudicial.

Viewing the evidence in the most favorable light for appellee, it amply sustains the verdict. The judgment is right. Affirm.