95 Ark. 136 | Ark. | 1910
(after stating the facts). The court erred in not granting the prayer of appellant. Appellee, according to his own evidence, knew of the unsafe condition of the machinery and of the place where he had to work. He entered upon and continued in the service of appellant, knowing the condition of the collar and set screws. He made these, and he continued to work for a long time knowing the location of the oil tank. As stated by counsel for appellant: “Appellee was the architect of his own misfortune.” The dangers were obvious, and he assumed the risks of them. St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 387, and cases there cited. The evidence shows that something like ten days before the injury the manager said “that he would make a place for the oil tank.” But this evidence is hardly sufficient to show that appellee continued in the service of appellant upon the latter’s promise to repair. For the evidence shows that appellee had worked there for a long time with the oil tank in the same location it was at the time he received his injuries-. It 'does not appear that he ever protested against the location of the oil tank, or that he had ever requested appellant to change it. For aught, that the evidence shows to the contrary, appellee was perfectly willing to continue in the service of appellant with the oil tank in the situation it was at the time the injury occurred.
For the error in refusing appellant’s prayer the judgment is reversed, and the cause is remanded for a new trial.
