Darling v. Burnett , 96 Ark. 461 ( 1910 )

Hart, J.,

(after stating the facts). Counsel for defendants assign as error the action of the court in amending and giving to the jury as amended instruction No. 4 asked 'by them. The instruction, as amended or modified, is as follows:

“4. You are told that the servant is bound to obey the reasonable commands of the master, and if, while disobeying these commands, he is injured, the master is not liable. So, in this case, if you find from the evidence that the plaintiff had been instructed by the defendants not to go .behind the line shaft, or had been told not to hold -the belt down with the bar, and that in violation of these instructions, and with full appreciation of the danger, he did go behind the shaft and hold the belt with the bar, and that he would not have been injured if he had not done so, your verdict should be for the defendant.”

The amendment or modification consisted in inserting the words in italics, towit: “and with full appreciation of the danger.” The instruction should have been given as asked.

The evidence on the part of the defendants tends to show that they had instructed the plaintiff and their other employees not to go in behind the line shaft and hold down the belt; that such action was dangerous.

The undisputed evidence shows that plaintiff was injured while engaged in going behind the shaft and holding down the belt with a pinch bar.

The rule of law is that “where a master promulgates a rule for the safety of his servants, and a servant is injured while in violation of that rule, and on account of the violation thereof, then the court will declare him, as a matter of law, guilty of contributory negligence.” St. Louis, I. M. & S. Ry. Co. v. Dupree, 84 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405. The principle upon, which the rule is adopted is that it may be assumed that the master has prescribed such methods of doing his work as experience has shown to be the safest for the servant.

The amendment or modification made to the instruction by the court was erroneous.

In the case of Emma Cotton Seed, Oil Co. v. Hale, 56 Ark. 232, the court said:

“If, however, the servant, by reason of his youth and inexperience, is not aware of, or does not appreciate, the danger incident to the work he is employed to do or to the place he is engaged to occupy, he does not assume the risks of his employment until the master apprises him of the dangers. It would be a breach of duty on the part of the master to expose a servant of this character, even with his consent, to such dangers, without first giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the dangers and the necessity for the exercise of due care and caution, and to do the work safely with proper care on his part. Tor a breach of his duty the master is bound to indemnify such servant against the consequences. He can not escape this liability by delegating the duty to instruct or inform to another person. But if such servant receives the information and caution from .any source, and accepts the place and undertakes the work, he assumes the risks ordinarily incident thereto, and can hot thereafter recover for injuries because the place was not safe. As to such work or place and its dangers, he would then be placed on the footing of an adult and could not, on account of infancy, be relieved of the consequences of such risks.” To the same effect, see Arkadelphia Lumber Co. v. Whitted, 81 Ark. 247; Arkadelphia Lumber Co. v. Henderson, 84 Ark. 382, and cases cited.

The purpose of warning the young and inexperienced servant is to place him in the same position as one of mature years. So it may be said that if such servant has ’been warned and instructed as -to the -dangers of -doing -certain work or working at a -certain place, it is -certainly true that he has an appreciation of the danger. It can not be said that a servant has been properly warned and instructed in regard to a danger, and yet does not appreciate it; for the very purpose -of the -warning and in-instruction is to enable the servant to appreciate a -danger, which by reason of his youth and inexperience he would not otherwise appreciate. Therefore, we hold that the court erred in modifying the -instruction in question by inserting the words, “and with full appreciation of the danger” after the words, “and that in violation of those instructions.”

The same error occurs in the modification of instructions Nos. 5 and 6, asked by the defendants, and given to the jury as modified.

We have examined the instructions given at the request of the plaintiff and find no error in them.

For the error in modifying instructions Nos. 4, 5 and 6, asked by the defendants, the judgment must be reversed, and the cause remanded for a new trial.