St. Louis, Iron Mountain & Southern Railway Co. v. Howard , 124 Ark. 588 ( 1916 )

Wood, J.,

(after stating the facts). (1) Appellant contends that appellee’s fourth prayer for instruction made appellant an insurer of the safety of the appellee, but such was not the effect of the instruction. In the first part of the instruction the court correctly defined the distinction between contributory negligence and the assumption of risk, .and correctly told the jury that such dangers as were normally and necessarily incident to the employment are assumed 'by the employee, but that such risks as arose out of the failure of the employer to exercise due care to provide a safe place of work and safe appliances for his employees was not .a risk assumed by the employee unless he was aware of the defect and risk, or unless ’such defect and danger were plainly observable ; that knowledge of such defect and danger were not to be presumed.

The court then submitted to the jury to determine from the evidence as to whether or not appellee’s injury was caused by a defect in the appliances, the danger from the use of which was one ordinarily incident to the employment, or whether it was one that resulted from the negligence of the appellant, and also as to whether or not appellee was aware of the defects, and whether or not they were plainly observable to the appellee.

(2) The evidence was amply sufficient to warrant the court in submitting to the jury the issue as to whether or not appellant was negligent under the circumstances in using the cotter key instead of a bolt to fasten the apron that covered the space between the engine and the tender, and whether or not the appellant was also negligent in the manner in which the cotter key was used. The jury had before them a representation of the manner in which the apron was fastened, and there was exhibited before them a cotter key which they had a right to find was the one used in making the fastening. It was also an issue for the jury as to whether the defect, ifone existed, by the use of the cotter key instead of a bolt, and by the manner in which it was used, was an obvious defect, that is one that appellee, in the exercise of ordinary care for his own safety while performing his duties, was bound to observe.

As we view the instruction, it did not assume the. existence of a defect that caused the injury, nor did it assume that appellant was negligent in causing the defect, if there was one, nor that the injury was the result of the negligence of appellant in the manner of the nse of the cotter 'key. It submitted to the jury to determine whether or not the defect, if it existed and caused the injury, was one of the ordinary risks incident to the employment, and plainly told them that if it was, then it was their duty to find in favor of the appellant. It also told them that it was their duty to find in favor of the appellant if the defect was plainly observable.

It must not be overlooked that in the first part of the instruction the court had told the jury that contributory negligence was a “failure to use such care for his safety as ordinarily prudent employees under similar circumstances would use.” The instruction must be taken as a whole, and when the words “unless you should find that the plaintiff knew of such defect or the same was plainly observable to him” are construed in connection with the definition of contributory negligence, in the first part of the instruction it is obvious that the court correctly instructed the jury on the issue of the assumption of risk. The instruction, as a whole, correctly declared the law in conformity with the decisions of this court and of the Supreme Court of the United States. Seaboard Air Line v. Horton, 233 U. S. 492, 503-504; C., O. & G. Ry. Co. v. McDade, 191 U. S. 68-69; Tex. & Pac. Ry. Co. v. Archibald, 170 U. S. 671, 672.

(3-4) While it was the duty of the appellee to exercise ordinary care for his own safety in the use of the appliances furnished him, yet that did not require him to make an inspection of the engine to see whether or not the same was in good repair or in a safe condition. The undisputed evidence 'shows that under the rules of the company the locomotive, before leaving the engine house for service on the road, had to be in good working order. No affirmative duty therefore was imposed upon appellee to discover defects and dangers. However, if there were such'defects and dangers that a man of ordinary prudence and care in the performance of his duties would have discovered, then these would be defects and dangers “plainly observable” to the appellee, and if ho failed to observe them he would be held to have assumed the risk. St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424, 28 L. R. A. (N. S.) 1250. In a note to the above case the editor says: “The doctrine as laid down ¡by the United States Supreme Court is that the servant 'assumes the risk -of those dangers due to the master’s negligence which are known to him or which are plainly observable by him, but that he is not ¡obliged to use even -ordinary care in ascertaining -or discovering the defects. In other words, knowledge of the defects will not be presumed unless the defects were plainly observable.”

This is the doctrine enunciated in the instruction, in such way as to leave it to the jury to determine the issue of fact. There was testimony to warrant the -court in submitting (the issue to the jury as to whether or not the manner -of making the -fastening with the cotter key was an Obvious defect -and danger. What we have said in this connection makes it unnecessary to discuss the objections raised to the rulings of the court in refusing appellant’s prayer No. 7, and also in giving appellee’s prayer No. 5. It follows from what we have already said that there was no error in these rulings.

The court did not err in refusing appellant’s prayers for instructions Nos. 5 -and 6. The instructions were not correct declarations -of law, applicable to the -evidence adduced, and the idea intended to be conveyed by them was fully covered by correct instructions which the court gave at appellant’s request. Prayer No. 6 was argumentative, -and, under the evidence, -clearly calculated to mislead the jury.

(5) The court did not err in permitting appellee to testify as to the character -of the lights upon his engine. There were ¡allegations in the complaint which justified the court in permitting this testimony. The evidence was amply sufficient to warrant the jury in finding that the proximate cause of -appellee’s injury was the negligence of appellant -as alleged in the complaint; that the injury was the direct result of such negligence.

There are no reversible errors in the record, and the judgment is therefore affirmed.