| Ark. | Nov 4, 1918
(after stating the facts).- As to whether or not appellant was negligent, and whether or not appellee was guilty of contributory negligence or assumed the risk, were, under the evidence, issues of fact for the jury. The testimony on behalf of the appellee tended to show that a coal car was left on the side track at a point so close to the main line track that the appellee in stepping off the engine on the main line in the performance of his duty as brakeman struck this car which caused the injuries of which he complained. The evidence tended to prove that if the coal car had been placed or left beyond the point of clearance or in other words at the right place on the passing track the appellee would not have been injured while stepping from the engine on the main line to the ground.
It was the duty of the appellant to exercise ordinary care, that is, such care as a person of ordinary prudence would exercise under the same circumstances, not only to provide appellee with a safe place for the performance of Ms duty, but also to exercise the same care to keep the place in such condition. This familiar rule is announced in St. Louis Southwestern Ry. Co. v. Lewis, 91 Ark. 343" date_filed="1909-07-12" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Lewis">91 Ark. 343-349, and other cases there cited, and in many cases collated in 3rd Crawford’s Digest, pp. 3388-89-90. See also Kansas City Southern Ry. Co. v. Livesay, 118 Ark. 304" date_filed="1915-04-26" court="Ark." case_name="Kansas City Southern Railway Co. v. Livesay">118 Ark. 304-309. “The common-law rule,” says the Supreme Court of the United States, in Seaboard Airline Ry. Co. v. Horton, 233 U.S. 492" date_filed="1914-04-27" court="SCOTUS" case_name="Seaboard Air Line Railway v. Horton">233 U. S. 492-501-502, “is that an employer is not .a guarantor of the safety of the place of work, or of the machinery and appliances of the work. The extent of its duty to its employees is to see that ordinary care and prudence are exercised to the end that the place in which the work is to be performed, ,and the tools and appliances of the work may be safe for the workmen.” The burden was upon the appellee under the Employers’ Liability Act to prove that appellant was negligent. St. L., I. M. & S. Ry. Co. v. Steel, 129 Ark. 520" date_filed="1917-07-09" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Steel">129 Ark. 520-35 et seq.; New Orleans & N. E. Ry. Co. v. Harris, 62 L. Ed. (U. S.) 1167, U. S. S. C. Advance Opinions, No. 15, July 1, 1918. See also Patton v. T. & P. Ry. Co., 179 U.S. 658" date_filed="1901-01-07" court="SCOTUS" case_name="Patton v. Texas & Pacific Railway Co.">179 U. S. 658, 45 L. Ed. 361; T. & P. Ry. Co. v. Barrett, 166 U.S. 617" date_filed="1897-04-19" court="SCOTUS" case_name="Texas & Pacific Railway Co. v. Barrett">166 U. S. 617.
Applying the above rules to the facts of this record, it was plainly an issue for the jury as to whether or not the appellant exercised ordinary care to .see that the coal car was set and kept beyond the point of clearance on the side track, or, in other words, at a point where appellee, exercising ordinary care in the discharge of his duties, could not have been injured by collision with such ear while merely stepping from the engine on the main line to the ground. It was also an issue for the jury as to whether appellee was guilty of contributory negligence or assumed the risk. The court, in instructions given at the instance of the appellee and also of the appellant, fully and correctly declared the law in conformity with the rules announced in the above cases and applicable to the facts of this record.
It would unnecessarily prolong this opinion and could serve no useful purpose to discuss these instructions in detail. Negligence was accurately defined, and the rules as to the burden of proof on the issues of negligence, contributory negligence, and assumed risk were also correctly declared. While the verbiage in some of the instructions given at the instance of the appellee was inaccurate, there were no specific exceptions to them, and they were not inherently erroneous. The defects should have been pointed out by specific objections. When these instructions are considered in connection with other instructions given at the instance both of the appellee and the appellant, and the charge is taken as a whole, we are convinced that the law, as above stated, was correctly declared. Some of the appellant’s prayers for instructions which the court refused were correct, hut these were covered by other prayers which the court granted. The record presents no prejudicial and, therefore, no reversible error. The judgment is affirmed.