156 Ark. 58 | Ark. | 1922
It is first earnestly insisted by the counsel for the defendant that the evidence is not legally sufficient to support the verdict. The tractor is guided by -the front wheel, which is connected with the front part of the machine by a fork, something on the- principle of one on a bicycle. The fork comes up through the foot-brake on the machine, and other parts attached to it make a handle-bar with which to guide the machine. The fork is supported on a ball bearing, and the ball bearing is adjusted and held in place with a nut and set-screw through an iron collar. The tractor, in hauling carriages of lumber on the floor of the mill, has a tendency to loosen the set-screw, and this has the effect, to tighten the nut on the bearing and make the machine hard to steer and also to lock the steering wheel.
The plaintiff knew that the machine was defective in this respect, and reported that fact to his foreman. Then his wife became ill, and he was absent from his work for several days. When he returned to his work, his foreman told him that the tractor had been repaired, and directed him to drive it from the house, where it was kept at night, to the floor of the mill for use that day. While backing the tractor along the tramway into the mill, the front wheel turned and became locked. The plaintiff tried to turn it back straight so that the machine would not .jump off the tramway. His efforts caused the machine to jump violently and throw him off of it to the left of the tramway, and at the same time the machine ran off to the right of the tramway. The plaintiff had a right to rely upon the statement of his foreman that the machine had been repaired, and it cannot be said, under the circumstances detailed by him, that the defect in the machine was so patent to him when he got on it that he must have known that it was still out of repair. According to his testimony, the defect in the set-screw caused the front wheel to lock when it was turned, and this caused the machine to jump and jerk violently and thereby throw the plaintiff from it. According to his testimony, the defect in the set-screw was the proximate cause of the injury.
It is true that, according to the testimony of. the foreman, the plaintiff was sent to repair the tractor instead of driving it into the mill to be used, but this question of fact was settled against it by the verdict of the jury, and it cannot be said that the verdict is not supported by the evidence of the plaintiff. Therefore, this assignment of error is not well taken.
The next assignment of error is that the judgment should be reversed because the court gave instruction No. 3%, which is as follows:
“You are instructed that it was the duty of the defendant company to exercise ordinary care to furnish the plaintiff a reasonably safe place in which to work, and appliances with which to work, and perform his duties to it with safety to himself while in the exercise of ordinary care for his own protection.”
We are of the opinion that the court erred in giving this instruction. According to the evidence of the plaintiff, he was acting under the immediate command of his foreman, and was injured while driving the tractor into the mill for the defendant to be used, and the injury was caused by a defect in the steering wheel, which the foreman had told him had been repaired.
On the other hand, according to the testimony of the foreman, the plaintiff was sent to inspect and repair the tractor. The tractor had been in use for about three years, and was constantly in need of repairs. It was a part of the plaintiff’s duty to perform this service, and he was injured while doing this. The instruction is erroneous for the reason that it entirely ignores the theory of the defendant. According to .the defendant’s evidence, it was not its duty to furnish the plaintiff with a reasonably safé place in which and safe appliances with which to work. The foreman had delegated to the plaintiff the duty to inspect the tractor and to repair it. Therefore, the case, under the testimony of the defendant, falls within the principles of law decided in cases of Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, and Stout Lumber Co. v. Wray, 109 Ark. 288, and cases of like character.
Under the evidence for the defendant it was the duty of the plaintiff to inspect the tractor and to repair it, and he was injured while performing this service. Therefore it was error to ignore this- testimony and tell the jury that it was the duty of the defendant to exercise ordinary care to furnish the plaintiff with safe appliances with which to work, without taking into consideration the theory of the defendant, as shown by its evidence.
It is true that the general rule that an employer is required to exercise ordinary care, not only to furnish his employees a reasonably safe place in which to work, but reasonably safe appliances to work with, is well settled in this State.
It is equally well settled, however, that this rule has certain well-defined exceptions. One of them is that where a servant knows that the appliance is dangerous and is engaged in the act of putting it in repair he assumes the risk incident to the work of repair. He éannot act upon the assumption that the machinery is in repair when he is employed for the very purpose of putting it in repair. The reason for the rule is aptly stated in the case of the Dartmouth Spinning Co. v. Achard, 84 Ga. 14, 6 L. R. A. 190. In that case Bleckley, Chief Justice, speaking for the court said:
“"While it is the duty of a master to furnish his servant with safe machinery for use, he is under no duty to furnish his machinist with safe machinery to be repaired, or fo keep it safe while repairs are in progress. Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cured, as the. machinist to have sound and safe machinery to be -repaired. The plaintiff was called to this machinery as infirm, not as whole. An important part of his business was to diagnose. the case and discover what was the matter. If he failed in this branch of his profession, it was either his fault or his misfortune. So far as appears, no one knew more of the state and condition of the machinery at the time than he did; and the object of calling him in the room was that he might ascertain the cause of the trouble, and apply the remedy.”
It follows that the instruction in question is erroneous-because it ignored this phase of the case, which was the main defense relied upon by the defendant to defeat the recovery of the plaintiff.
It is next insisted that the court erred in giving instruction No. 4 as modified. The instruction is as follows :
“The court instructs the jury that the plaintiff, on entering the employment of the defendant, assumed .the ordinary risk of dangers arising from the ordinary operation of defendant’s business without negligence; and he also assumed the risk of dangers arising from such defects, if any, in the defendant’s machinery or appliances that he actually knew about, or would necessarily have discovered in the discharge of his employment. So, although you should find that defendant’s tractor No. 2 was out of repair, and plaintiff was injured as a result of such condition, yet if the plaintiff, before his injury, actually knew of the condition of such tractor, or, in the proper discharge of the duties of his employment, would necessarily have discovered its condition before his injury, and in time to have avoided injury from such condition, you will find for the defendant, unless you further find from the evidence that plaintiff had been informed by his foreman that tractor No. 2 had been repaired.”
The modification consisted in adding the words at the end of the instruction, “unless you further find from the evidence that plaintiff had been informed by his foreman that tractor No. 2 had been repaired.”
The fact that his foreman had told him that tractor No. 2 had been repaired would not relieve the plaintiff from the assumption of risk, if, when he went to use the machine, he saw that it had not been repaired, or if the defect was so patent that he could not have helped observing it. In other words, it was error to tell the jury as a matter of law that the defendant would be relieved from the assumption of risk if his foreman had told him that the tractor had been repaired. ■ Of course, the plaintiff, under his theory of the case, would not have had to search for defects or to inspect the machine, but, if the defect in the set-screw was a patent and obvious one, the plaintiff would not be relieved from the assumption of risk merely because his foreman told him that he had repaired the machine.
According to his own testimony, the plaintiff sat on the front part of the machine while operating it. The set-screw connected the fork attached to the front wheel with a handle-bar extending to the left of the machine. The handle-bar was used by the plaintiff to guide the machine, and the defective set-screw was right in front of his eyes. The plaintiff was accustomed to the use of the machine and had helped repair it. Therefore the question of whether or not the defect was patent and obvious to the plaintiff should have been left to the jury, and the court erred in telling the jury as a matter of iaw that the plaintiff was relieved from the assumption of risk if Ms foreman liad told Mm that he had repaired the machine.
For the errors indicated the judgment must be reversed and the cause remanded for a new trial.