Chicago, Rock Island & Pacific Railway Co. v. Crawford , 107 Ark. 564 ( 1913 )

Wood, J.,

(after stating the facts). The instruction which submitted to the jury the issue as to whether or not appellant had failed to exercise ordinary care was abstract and prejudicial. There was no testimony to warrant the court in submitting any such issue to the jury.

Under the undisputed evidence, the court also should have granted appellant’s prayer for instruction No. 3, to the effect that it was the duty of the appellee to see that the appliances with which he was working were safe and suitable and that his injury resulted from his failure to perform that duty, and therefore he could not recover.

It clearly appears, from the undisputed evidence, that the injury to appellee was caused because the hinges or hangers were not suitable to work on the door and on the door slide where they were placed. Appellee testified that if the hinges had been made of sufficient size there would have been no necessity for his using the crowbar in the manner he did, which caused the door to fall and injure him. This defect in the size of the hinges was the proximate cause of the appellee’s injury, and it was the duty of appellee under his contract of employment to see that the hangers or hinges properly fit the runners, otherwise he could not properly hang the door, and that was a part of his duty. He was an experienced car repairer, and, as he says, had probably put hangers on a dozen doors. The blacksmith who made the hangers was under appellee’s direction as a car repairer and would have changed the hangers or fixed them as appellee should direct.

The undisputed facts bring the case clearly within the rule announced by this court in the recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Baker, 100 Ark. 156-164, where the court, quoting from the case of Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, said: “If appellant deputed to Thrasher the duty of making the wire rope secure, and he neglected to perform this duty, he assumed the risk of .injury from his negligence in failing to discharge the duty imposed on him, and the master is not liable to him for the injury resulting. ’ ’

For the error in refusing to give appellant’s prayer for a peremptory instruction the judgment is reversed, and the cause is dismissed.