Standard Oil Co. v. Gray , 175 Ark. 702 ( 1927 )

Kirby, J.,

(after stating the facts). It is earnestly insisted that the evidence is not legally sufficient to support the verdict, land that the court erred in refusing to give appellant’® requested instruction No. 1 for a directed verdict.

There is very little conflict in the testimony. It is ■undisputed that it was not necessary to remove the top from the air mixer in order to start the engine, but that it was not unusual — -was in fact customary — to do so, the engine 'being started more readily when it was done. The appellee was an experienced workman, and understood the operation of such engines, and undertook to start this one in this customary way. He said it could be done more easily 'by removal of the top 'from the air mixer. It is not complained that the appellant was negligent in not warning him of the danger incident to the service performed, but only that it failed in its duty to exercise ordinary care to furnish safe machinery and instrumentalities for the performance of his work. He could have easily picked up and replaced the top of the air mixer without bringing his face over the mixer or near enough thereto to have 'been injured by an explosion from a backfire of the engine coming out of the mixer, and none could have escaped that way had the top not been removed for starting the engine, as he also knew. There was no emergency requiring him suddenly to select the method for doing the work, or excusing him from attempting the least safe way. He was working under his own. initiative or direction in starting the engine, working according to his preference at the time, and, being familiar with this method of doing the work, and necessarily knowing and appreciating the danger incident thereto in attempting it, he must be held to have assumed the risk. St. L. I. M. & S. By. Go. v. Wiseman, 119 Ark. 477, 177 S. W. 1139; Henry Wrape Go. v. Huddleston, 66 Ark. 239, 50 S. W. 452. He carelessly and unthoughtedly brought his face over the air mixer in reaching- for the top to replace it, and without any necessity for doing so, and, although he stated he had not known of any explosion from a back-fire coming through the open air mixer after the engine was started, he knew that the top was put on such mixer to prevent the explosions from backfire coming out that way, and also that the top was off, necessarily exposing him to any danger that might result therefrom.

There does not appear to be any reasonable excuse for the careless manner of bringing his face near to and over the open mixer in attempting to replace the top thereon, and in so doing he was guilty of negligence contributing to his own injury also, and but for which the injury would not have occurred.

The court erred in not directing a verdict for the appellant, and the judgment is reversed and the cause dismissed.