Crawfordsville Trust Co. v. Nichols , 121 Ark. 556 ( 1916 )

Wood, J.,

(after stating the facts). (1) The court erred in refusing to grant appellant’s prayer for a directed verdict in his favor. Under the undisputed evidence Maggard must ibe held to have assumed the risk, and the appellee, therefore, was not liable for the injury which resulted in Maggard’s death. The testimony bearing upon the issues of negligence and assumed risk has been fully set forth in the statement, and, as we view it, there is no basis in the evidence for any other conclusion in the mind of any reasonable man than that the danger to which Maggard exposed himself was a perfectly obvious one. Maggard had been working for Alfrey at this plant long enough to be entirely familiar with the premises, and the undisputed evidence shows that all the employees, when their attention was first drawn to the conditions that existed at the place where Maggard was injured, could see that something was wrong with the machinery ; that more steam was escaping from the pipes than usual ; that the steam was so dense that it covered the passageway over which the employees walked and where the broken pipe the night before had caused the excavation into which Maggard fell and received his injuries. All reasonable minds must' come to the conclusion that Maggard 'knew that there was a defective condition in the pipes or the pumps that caused the unusual quantity of steam which had obscured the passage way.

The jury had no right to disregard the undisputed evidence of Holder and the other witnesses to the effect that the passage way on this occasion was hidden by the unusual quantity of steam which was escaping, and that mud and water was there,, all revealing an unusual condition. There is no reason why Maggard if he had made proper use of 'his sense of sight, could not have discovered the same dangerous conditions that the other employees saw when they approached the place where the injury oeeured. The manager discovered the water there, the engineer discovered it, and the fireman discovered it; all knew that the conditions along this passage way were unusual. Holder stated that Maggard knew that there was water there; that he (Holder) and others were engaged at the time digging a ditch to drain the water •off. He also stated that Maggard knew that the pump was in a defective condition. Witness Stephens saw the men digging and went out to see what preparations they ■were making about draining the hole out.

Without further discussing the evidence in detail it. suffices to say, in the language of ¡this court in St. L., I. M. & S. Ry. Co. v. Goins, 90 Ark. 387: “The testimony revealed a condition * * * that could not have escaped the notice of any man of ordinary experience and observation, whose senses were alert.” K. C. So. Ry. Co. v. Livesay, 118 Ark. 304.

While there were some immaterial conflicts in the evidence on other points, there was nu conflict as to -the facts of the unusual and dangerous condition that existed on the morning when Maggard received his injuries, and that these conditions were so obvious that they could not escape the observation of ¡any one who used his eye sight.

(2) We are also of the opinion that the court should have instructed the jury as matter of law that Alfrey was not negligent, under the circumstances, in failing to warn his employees of the danger and in failing to place a barrier around the excavation for their protection. The allegations of the complaint as. to negligence were not proved. Alfrey, at the time of. Maggard’s injury, was doing all that any man of ordinary prudence would be required to do. The excavation was suddenly made during the night by the bursting of a pipe, and it was discovered as soon as it could have been done in the exercise of ordinary care, .and the employees had set about making the repairs, and were so engaged when Maggard came 'along and fell into the hole that the other employees were then draining.

The following language of the Supreme Court of Massachusetts is apposite to the state of facts shown by this record: “Where the elements of the danger are obvious to a person of average intelligence using due care, it would be unreasonable to require ¡an employer to warn his employee to avoid dangers which ordinary prudence ought to make him .avoid without warning. * * *. Something may properly be left to the instinct of self-preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved.” Daniel E. Stuart v. West End Street Ry. Co., 163 Mass. 391. See, also, La. & Ark. Ry. Co. v. Miles, 82 Ark. 534-538.

The judgment is therefore reversed and the cause is dismissed.