122 Ark. 401 | Ark. | 1916
(after stating the facts). It is earnestly in-. sisted by counsel for appellant that there is not sufficient evidence to support the verdict and this we regard as a very close question. Appellee was a coal miner and was going to his place of work at the time he was injured. It was the custom of all the servants to walk down the track as they went to and from their work. There was a passage down into the mine which contained two tracks, one for the loaded cars to be hauled up, and the other for the empty cars to pass down,.
(1) It is the general rule that it is the master’s duty to use ordinary care to furnish his servant a safe place to work and to exercise the same degree of care to keep his working place in safe condition. Under the circumstances in this case this duty cariied with it the further duty to furnish the servant a safe mode of ingress and egress while on the premises of the master. St. Louis, I. M. & S. Ry. Co. v. Duckworth, 119 Ark. 246, 177 S. W. 1148.
(2) This seems to be conceded by counsel for appellant but he contends that under the facts in this case appellee was guilty of contributory negligence and bases that contention on the following facts: that appellee was an experienced miner and had worked for appellant seven or eight yearsthat he was familiar with the methods of work and knew that when the mine was being worked cars were likely to be on the loaded track and empty track; that the empty trip would move whenever the engineer gave the signal; and that loaded and empty cars passed at the “parting,” a place on the track near where appellee was injured.
On the part of appellee, however, it was shown that he had told the rope-rider that he was going down the track and the rope-rider saw him do so; that he was at a place where he had a right to be; that no other way was provided by appellant for its servants to go to and from their work rooms; that there was not sufficient room between the track and the walls for a person to walk; that the servants were accustomed to walk along the middle of the track and, indeed, that it was the only place for them to walk.
As we have already seen appellee notified the rope rider on the empty trip cars that he was going down the slope to his working place; the engineer also saw some one pass just before he gave the signal for the cars to move.
Appellee was in full possession of his senses and from his testimony and the attendant circumstances, the jury might have found that he was keeping a sharp lookout for the cars and that he did not hear any signal given for them to move.
Under this state of facts we think the negligence of appellant and the contributory negligence of appellee were properly questions for the jury.
(3) Counsel for appellant also contends that the court erred in refusing to give certain ‘instructions to the jury and in this contention we think counsel is correct. Appellee in his complaint alleged that the defendant failed to furnish competent and careful servants to handle its machinery and perform the duties required of them in operating the mine, and that appellant failed to establish a system of signals in operating the mine as required by statute. There was no testimony whatever tending to support these charges of negligence. The only contention made by appellee at the trial was that the particular servants engaged in the work at the time he received his injury were negligent. There was not a particle of testimony to show that they were incompetent or careless servants in general. The testimony only went to show a particular act of negligence at the time appellee was injured. So, in regard to the allegation of negligence of appellant in fail: ing to provide a system of signals to warn those who were traveling its slopes; there was no testimony to establish this allegation of negligence. The testimony only went to the extent of showing negligence on the part of the engineer in failing to give signal or warning at the time appellee was injured.
Counsel for appellant by a specific instruction asked the court to state to the jury that there was no evidence to establish the particular allegations of negligence just referred to and the court committed prejudicial error in not giving the instruction. Harris Lumber Co. v. Morris, 80 Ark. 260; Arkansas Central Rd. Co. v. Workman, 87 Ark. 471; Huddleston v. St. Louis, I. M. & S. Ry. Co. 88 Ark. 454.
We would not reverse the case for the refusal of the court to give these particular instructions, if in the instructions given, it had limited the right of appellee to recover to the specific acts of negligence proved at the trial; but the court did not so limit appellee’s right to recover hut, on the other hand, gave general instructions on the question of appellant’s negligence.
For the error in refusing these instructions as indicated in the opinion, the judgment must be reversed, and the cause will be remanded for a new trial.