| Ark. | Jan 20, 1906
(after stating the facts.) The defense put forth by the defendant was that the manner of the plaintiff’s injury was one of the ordinary dangers connected with and incident to the service which he was employed to perform, and that by virtue of his employment he assumed the risk; or that the injury resulted directly from the negligence of the plaintiff. Numerous exceptions were saved to the giving of instructions asked by the plaintiffs, and the refusal of certain instructions asked by the defendant. We do not deem it necessary to set forth and discuss all the instructions asked or given. The court correctly put the case before the jury upon the issue of negligence of defendant and contributory negligence on the part of the plaintiff.
Counsel for appellant especially complain at the following instruction, on the question of assumed risk, given on motion of plaintiff:
“7. If you find from the evidence that the foreman or superintendent directed plaintiff to oil the machinery while in operation, and the plaintiff requested him to stop the machinery for such purpose, and the foreman or superintendent refused to do so, but told plaintiff that it was not dangerous, or that he would not get hurt, then plaintiff would be relieved of any assumed risk, and would not be guilty of contributory negligence in obeying such direction, unless the danger was so patent that no person of ordinary prudence and care would have obeyed such direction, or unless, in the manner of obeying such direction and oiling said machinery, plaintiff acted as an ordinarily prudent person would not have done under the circumstances.”
It is urged that this instruction is defective as a definition of assumption of risk because it leaves out of consideration the fact that plaintiff might have actually known of the location of the set screw and appreciated the danger in oiling the machinery while in motion, even though the danger was not so “patent that no person of ordinary prudence and care would have obeyed such direction.” The instruction seems open to this objection, and, standing alone, would have been erroneous. But the deficiency in this instruction is supplied by others on the subject given at the request of appellant.
The court gave the following at the request of the defendant :
“9. If you find from the evidence that the plaintiff was employed to perform certain work and labor about the boll reel, at its oil mill, and one of his duties was to oil .its parts, you are instructed that he assumed the ordinary risks incident to this employment and also all- dangers which were obvious and apparent ; and if he continued in his work having knowledge, or by the exercise of reasonable care might have known the dangers involved, he is deemed to have assumed the risks, and to have waived any claim for damages against the defendant in case of personal injury. The true test is, not whether he did comprehend the danger, but whether he ought to have comprehended it, and he is chargeable with knowledge of such danger as he might have known and comprehended by the exercise of ordinary care; and, though the work of oiling the bearings of the boll reel might have been 'dangerous, he assumed all dangers and risks incident thereto.”
This instruction was more favorable to defendant than the law of the case warrants. The doctrine of assumed risk in such cases is so exhaustively treated in the case of Choctaw, O. & G. Rd. Co. v. Jones, ante, p. 367, recently decided by this court, and the principles therein announced so completely control this case, that we do not deem it necessary to renew the discussion here. It is clearly pointed out in the case just cited that the defense of assumed risk is based upon the voluntary and conscious exposure to the danger by the servant. When acting under the direct commands of the master, before the servant can be said to have assumed the risk, it must be found that he knew of the danger and appreciated it. It is not correct to say, in the language of the instruction just quoted, that “he is chargeable with knowledge of such dangers as he-might have known and comprehended by the exercise of ordinary care,” and assumed all the risk incident to the service he was performing. The instruction would have been applicable to a state of fact where the servant was proceeding in the discharge of his regular duties in the ordinary way, but not where he was proceeding under the command of the master, and in the face of a danger not incident to his ordinary duties. It entirely ignored the claim of plaintiff that he was, under the special direction of the foreman, oiling the machinery while in motion, and was assured by the foreman that it was safe to do so. However, the appellant can not complain that the instruction was more favorable than it was entitled to under the proof.
It is earnestly insisted by counsel for appellant that the evidence is. not sufficient to sustain the verdict, but we think it was sufficient. The contention of the plaintiff was that the defendant, through its foreman, was guilty of negligence in sending him up into the moving machinery where, in oiling it according to the command of his superior, his sleeve was caught by the set screw; and the injury resulted in consequence. He testified to the facts in support of this claim, and the j ury accepted his contention, and found in his favor. The gravamen of the charge of negligence against defendant was that it sent plaintiff into the moving machinery. The placing of the set screw was not claimed to be an act of negligence, nor is it claimed that the machinery was defective on that account. It was merely one of the conditions of the injury. The master was bound to know of the structural parts of the machinery furnished to the servant, and it was a question for the jury to determine whether 'it'was negligence to send the servant into the moving machinery for the purpose of oiling it. The defendant denied the charge of negligence, denied that plaintiff was directed to oil the machinery while in motion, or that there was any set screw on the shaft. It introduced testimony in support of its contention, but the jury found for the plaintiff against what seems to be a preponderance of the testimony. It was for the jury to find from the evidence whether plaintiff acted under direction of defendant’s foreman, and whether it was negligence to do so under the circumstances, whether the set screw was in the position named, and whether the dangers of obeying the orders -of the foreman were so obvious and so patent that the plaintiff was guilty of contributory negligence in obeying them. The jury necessarily passed upon all these questions, and we can not say that the evidence was not sufficient to support the finding.
Judgment affirmed.