| Ark. | Apr 16, 1923
(after stating the facts). Counsel for the defendant insist that the court erred in not instructing a verdict in its favor. They claim that the system of piling the sawdust and shavings in the fuel room and in feeding the same into the suction pipe was the latest improved method of doing it, and also that whatever danger attended the work was obvious to any one of average intelligence, with the plaintiff’s experience in working in the mill. In making this contention counsel for the defendant rely upon the case of Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50" date_filed="1909-01-18" court="Ark." case_name="Arkansas Cotton Oil Co. v. Carr">89 Ark. 50, and other cases of like character. In that case a servant of the company was injured by the falling of sacks of meal piled in the customary and best practical method, and the court held that the company was not guilty of negligence. The court further held that a servant engaged in moving sacks of cottonseed meal will be held to have assumed the risk of the sacks falling on him, if the sacks were piled in the usual way, and the danger of them falling down was obvious and was one of the ordinary risks of the work about which he was employed.
If there was nothing in the present case except that the plaintiff was injured by the pile of sawdust and shavings falling down on him while he was feeding them into the suction pipe, the case just cited would apply. The negligence relied upon for a recovery in the present ease is the failure of the defendant to warn the plaintiff of the danger of working in the fuel room with the lantern. It is one thing to say, as a matter of law, that a man of the plaintiff’s experience would know that .the pile of sawdust and shavings would fall down on him if not properly handled, and another thing, to say, as a matter of law, that the danger of doing the same work with a lighted lantern instead of electric lights was also obvious to him. "When the room was lighted by electricity .the only danger that could possibly cause injury would be the fact that the pile of sawdust and shavings would slide down on the plaintiff. He could' guard against this by reason of the room’s being well lighted,- so that he could see when the pile of sawdust was likely.to topple over, and ease its fall by poking it at the top with the long pole. There was an added danger when the work was done with a lantern. In the first place, the dim light would not show the condition of the pile of sawdust and shavings as well as the electric lights. This might cause the pile of sawdust to topple over before the plaintiff could see its insecure condition and avoid the danger. In the next place, if. the pile of sawdust should topple over and come' in contact with the lighted lantern, there would likely be an explosion which would set on fire the sawdust in the fuel room, and thus add a new and unexpected danger to the work.
The jury might have found, under the circumstances, that the failure of the defendant to warn the plaintiff of the new and added danger of feeding the suction pipe in the night time with only a lantern to furnish light was actionable negligence. So there was a question for the jury about the extent of the danger and the consequences of the neglect of the defendant to warn the plaintiff that there was danger of the pile of sawdust falling down and coming in contact with the lantern, thereby causing an explosion which might set fire to the sawdust and burn the plaintiff as well as the property of the defendant. It cannot be said, as a matter of law, that the danger of working in the fuel room at night with a lighted lantern instead of electric lights was an obvious and patent danger to the plaintiff. He liad not been working in this part of the mill .since the installation of the new system, and he had a right to rely, to some extent, on the judgment of the head fireman under whom he was working. He was performing, the work in the manner in which he was directed to perform it by the head fireman, and was injured while doing so. We think, under the circumstances, that there was a question for the jury both of the negligence of the defendant and the assumption of risk by the plaintiff.
It is next insisted that the court erred in giving instruction No. 1, which reads as follows: “If you find from a fair preponderance of the evidence that the plaintiff, James Lattimore, was employed by the defendant, Arkansas Short Leaf Lumber Company, to fire the boiler used to generate steam to operate its machinery, and that, while so employed by defendant, it negligently allowed a large pile of sawdust and shavings to accumulate in the fuel room whore plaintiff was required to work, and that, by reason of said sawdust and shavings being allowed to accumulate in said room in large quantities, it became displaced and fell upon the plaintiff while he was discharging his duty, and said sawdust and shavings were fired by the lantern in plaintiff’s hands, which it was necessary for him to use because of the electric lights of defendant having become extinguished, and said sawdust and shavings became ignited by coming in contact with the lighted lantern furnished plaintiff by the agent of said company, and said shavings covered the plaintiff and set fire to his clothing and burned his body, arms and muscles, as alleged in his complaint, by reason of which burns he suffered great bodily pain and mental anguish, then your verdict will be for plaintiff, and you will.fix his damages at what you may determine, from the evidence,-he is entitled to receive for such bodily pain and mental anguish, according to the instructions given you by the court, not exceeding’ the amount claimed and prayed in plaintiff’s complaint, provided you find that any act complained of constituted negligence on defendant’s part.”
We do not think the instruction was erroneous. It submitted to the jury the question of the negligence of the defendant in directing the plaintiff to work in the fuel room with light from a lantern instead of from electricity. The undisputed evidence shows that the nlaintiff was injured by an explosion caused by the flying dust coming in contact with the lantern. The instruction in terms leaves it to the jury to find whether the defendant was negligent in the premises specified in the instruction or not.
At tlie request of the defendant the court specifically told the jury that it could not find that the defendant was negligent, either because the electric lights went out or because they had not been repaired. As above stated, the negligence of the defendant consisted in sending the plaintiff to work in a fuel room filled with shavings and sawdust with only the light from a lantern, instead of the lights furnished by electricity. The plaintiff might guard against any danger from the falling sawdust if the room was lighted by electricity, and yet be unable to do so by the dim light of a lantern. In the one case he could see all over the fuel room, and in the other the condition of the sawdust would be more or less obscure. Hence we think that the question of the negligence of the defendant and the doctrine of the assumption of risk by the plaintiff were submitted to the jury under proper instructions.
We find no prejudicial error in the record, and the judgment will be affirmed.