90 Ark. 555 | Ark. | 1909
(after stating .the facts). The questions of negligence and contributory negligence were submitted to the jury upon correct instructions. We deem it unnecessary to discuss, seriatim, the instructions of the court. It is conceded that for the ■ most part they announce correct and familiar principles, but it is contended by appellant that, as applied to the facts of this case, the instructions are abstract, misleading and prejudicial.. Among other instructions, to the giving of which appellant objected, were numbers 3 and 4 set out in the statement. In asking-these instructions appellee treated the facts as raising the issue-of assumed risk, although such defense was not set up in the answer. Appellant also by its prayers for instructions treated it .as an issue in the case. We will therefore consider the objection to the rulings of the court in the giving and refusing of prayers for instructions as if the defense of assumed risk had been -properly pleaded.
The appellant contends that, upon the undisputed evidence, 'the defect in the switch was patent, or, in other words, a defect which' Holman, in the exercise of ordinary care for his own .safety in the use of the track furnished him, should have discovered. But, whether the defect was obvious or-not, appellant contends that the undisputed evidence shows that Holman had actual ^knowledge of it.
Holman’s duties were on his engine. The evidence does not show that an engineer in the performance of his duties could have observed that the switch was unlocked, nor does it show that Holman had ever observed this condition, or that he had the opportunity to do so. See St. Louis & S. F. Rd. Co. v. Marker, 41 Ark. 542; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333. The absence of lights in the night or of targets in -the day to show whether the switch is open would be an obvious defect, the risk of which the engineer would assume. But the •presence or absence of a lock on a switch stand we do not consider, under the evidence, such an obvious condition as to warrant an instruction as matter of law that the ■ engineer was bound to take notice of it. The utmost that appellant had the right to ask under the evidence 'here was to have the question submitted to the jury as to whether the defect complained of was a latent or patent one. The appellant had the ques^ • tion submitted in its prayer number five, which the court granted. "This instruction at the instance of appellant, and instruction number two at the request of appellee properly submitted to the jury • the question as to whether the defect of an unlocked switch was .a latent or patent one, and in either case correctly declared what were the duties and rights of the employee.
Instruction number two, at the instance of appellee, would ‘have been abstract, to be sure, if the uncontroverted evidence ' had shown, as appellant contends it -does, that Holman had knowl■edge that there was no lock on the switch. But we are of the opinion that it was also a question for the jury as.to whether 1 Holman had knowledge of the unlocked switch before and at the time of the injury. True, two witnesses for appellant testify to Holman’s having such knowledge. But there are conflicts and inconsistencies in the testimony of these two witnesses. For instance, the witness Stephens says “that he does not remember how long it was after he discovered there was no lock before he told Mr. Holman, but thinks it was three or four weeks before he was hurt.” This is the source whence Holman received his fitst knowledge of the unlocked switch (according to the only evidence in the record), and he received such knowledge (this witness, Stephens, thinks) three or four weeks before he was hurt. Yet, according to the testimony of Oscar Bell, in a conversation between him and Holman that took place three or four months before Holman was hurt, Holman mentioned to him first that “there 'ought to be a lock put on that switch.” According to the testimony of Bell, Holman was telling him the above at least two or three months before Holman himself knew that there was an unlocked switch, if the testimony of Stephens was correct. Then again Stephens and Bell each testified that the lock had never been taken from the switch, but was still there in place, and that the only trouble was that the staple was broken off the switch; Hopkins and Hughes saying there had been one on it a month and a half or two months before. In view of witnesses who had examined the switch, or had had opportunity to observe it, Tillman, Hopkins and Hughes, swore that at the time of the injury, and just before, there was no lock on the switch, Hopkins and Hughes saying there had been one on it a month and a half or two months before. In view of these conflicts and inconsistencies and some other inherent weaknesses in the evidence of Bell and Stephens, and in view of the fact that there was evidence directly tending to impeach Bell, we are not warranted in saying that the undisputed evidence establishes the fact that Holman had knowledge of the unlocked switch before or at the time he was injured. On the contrary, it was peculiarly a question for the jury as to whether he had such knowledge. The court, in instruction number four, at the request of appellee properly submitted to the jury to determine whether Holman had such knowledge, and in instructions three and four, at request of appellee, the court submitted the question as to whether, having such knowledge, under all the circumstances of the case, including a promise to repair on the part of the master, if there was one, Holman -assumed the risk arising from the unlocked switch. The instructions in effect tell the jury, on the question of the promise to repair, that, if there was such promise, and Holman continued in his work under it, he did not assume the risk of the danger, unless it was so obvious, patent, glaring or manifest that no person of ordinary prudence would have continued in the work in reliance on such promise, unless he so continued an unreasonable time after -the promise. The specific objection to the instruction made at the time by appellant was “that it was unsupported by the evidence, and that it ignores the proposition of contributory negligence in case the jury should find that the defendant did not in fact agree to fix the lock in a certain time or at all.” The evidence as to the promise to repair is contained in the testimony of Bell, set out supra, and it is amply sufficient to warrant the submission of the question to the jury as to whether there was such promise. Bell was the agent of appellant to make such repairs. Holman, according to Bell’s testimony, called the latter’s attention to the dangerous condition of the unlocked switch and the importance of repairing the defect, and Bell told Holman that the roadmaster had promised to furnish the lever, and that as soon as he did so he (Bell) would fix the switch. It was Bell’s duty to keep the tracks in order, which he says he did by going over them every day. Taking his testimony as true, the reasonable inference was that there was a promise to repair, and that it would be done in a very short time, although no definite time was named. The effect of a promise to repair by the master, and of the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks impendent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail -himself of the defense of assumption of the risk by the servant continues for a reasonable time. 1 Labatt, Master and Servant, § § 424-25, and notes thereto. No matter how obvious the defects or how imminent the perils therefrom, the servant, pending the promise of the master to reoair, does not assume the risk of the given defects by continuing in the master’s service in reliance upon his promise. For, as was said by the Supreme Court of Illinois in Swift & Co. v. O’Neill, 187 Ill. 337: “By the promise of the master a new relation is created between him and- the employee whereby the master impliedly agrees1 that the servant shall not be held to have assumed the risk for a reasonable time following his promise.” Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Schlitz v. Pabst Brewing Co., 57 Minn. 303; McFarlan Carriage Co. v. Porter, 153 Ind. 107; Texas & N. O. Rd. Co. v. Bringle, 9 Texas Civil Appeals, 322. This rule is a necessary corollary of the doctrine that the defense of assumed risk rests on contract. Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367; Narramore v. C. G. C. & St. L. Ry. Co., 96 Fed. 298-301. For it ■can not be said that the servant 'has voluntarily assumed the risk of the impending danger of working in an unsafe place, or of the use of obviously defective appliances furnished by the master, where the servant has complained to the master of such defective conditions and agrees to and does continue in his service upon the promise of the master within the time specified, or a reasonable time, if none is specified, to restore the place or appliances to normally safe conditions. The complaint of the servant shows that he is not willing to continue in the employment under the dangerous surroundings. The promise of restoration by the master to secure the continuation of the service of his employees is a confession of a breach of duty which rests solely with him, and which he alone can and should correct. Out of this contractual relation the law declares that for a reasonable time the burden of the assumption of risks and the responsibility for any injury resultant to the careful servant by reason alone of the defective ■conditions is on the master where it belongs, for he is in the wrong. Judge 'Cooley says: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant by continuing the employment engages to assume the risk.” Cooley on Torts, p. 1157; Dalhoff Const. Co. v. Luntzel, 82 Ark. 82; Western Coal & Mining Co. v. Burns, 84 Ark. 74; Hough v. Texas & Pac. R. Co., 100 U. S. 225; Greene v. Minneapolis & St. L. R. Co., 31 Minn. 248; Pleasants v. Raleigh & A. Air Line, 95 N. C. 195; Eureka Co. v. Bass, 81 Ala. 200; Ray v. Diamond State Steel Co., 2 Penn. (Del.) 525.
But, while this rule precludes the master'from setting up the defense of assumed risk under the circumstances mentioned,- it does not foreclose the defense of contributory negligence. Thát is still open to him, for the employer does not assume the risks of the negligence of his employees during -the time when his promise to make repairs should be fulfilled, nor indeed at any time. The law is well settled that if the nature of the defects is such as-to create an open, imminent danger such as no prudent man would encounter, and the servant continues at work in the face of this manifest peril, and is injured by reason of the defects, he is barred of any right of recovery because of his -own contributory negligence. -But where the nature of th-e defect is not so obviously dangerous as to impress the man of ordinary prudence with -a feeling or consciousness of imminent danger in the place where, or in the machinery and appliances with which, he has to do the work, then he may continue in the performance thereof; and if he is injured while so engaged, the master will be liable. McKelvey v. Chesapeake & O. Ry. Co., 35 W. Va. 500; 1 Labatt, Master and Servant, § 428. Our own -court, in an exhaustive opinion through Mr. Justice Hart, has recently thoroughly discussed the questions of the contributory negligence of the servant in connection with the promise of repair by the master, and numerous authorities are cited by -him. Marcum v. Three States Lumber Co., 88 Ark. 28. Courts (our own among them) and text writers have sometimes overlooked the technical distinction between the separate defenses of assumed risk and contributory negligence in cases where there has been a promise to repair, inaccurately designating the one for the other. See King-Ryder Lbr. Co. v. Cochran, 71 Ark. 55; St. Louis, I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507; Patterson Coal Co. v. Poe, 81 Ark. 343; Marcum v. Three States Lumber Co., 88 Ark. 28; 4 Thompson on Negligence, § 4667. In many cases both defenses are alike available, and in such cases, where the servant or employee exposes himself to an obvious and imminent danger, it is of not much real importance whether the caseba disposed of on the one defense or the other. In such cases, as was said by Judge Taft in Narramore v. Cleveland, C. C. & St. L. R. Co., 96 Fed. 298, “assumption of risk and contributory negligence approximate when the danger is so obvious and imminent that no ordinarily prudent person would assume the risk of injury therefrom.” This is mentioned by Judge Riddick (quoting above) in Mammoth Vein Coal Co. v. Bubliss, 83 Ark. 567, and again by Chief Justice Hill in Johnson v. Mammoth Vein Coal Co., 88 Ark. 243. It might be added that, while these defenses may approximate in certain cases, they •can never amalgamate in any case. However, in cases like this where, under the promise to repair, for a reasonable time there •can be no assumed risk, the distinction between assumed risk and contributory negligence should be observed. It is a somewhat loose and inaccurate characterization to name as assumed risk that which, under the hypotheses stated in instructions two and three, could only be contributory negligence during the time for the fulfillment of the promise to repair. But no possible •prejudice could have come to appellant by an error of that kind. In fact, the inaccuracy in telling the jury that Holman might have assumed the risk under a promise to repair if the danger was so obvious, patent, .glaring or manifest that no person of ordinary prudence would have continued at the work, etc., was more favorable to appellant than the law and facts warranted. The instructions, taken together, left the jury to determine whether or not the facts existed that would constitute a promise to repair on the part of the master and a continuance of the work in reliance upon .such promise by the servant, and whether or not the danger was so obvious, patent, etc., that no prudent person would have •continued in the service; and, finally, left the jury to find “under all the facts and circumstances of the case whether the deceased ■did in fact assume the risks arising from the condition of the switch appliance.” The instruction condemned by this court in Kansas & Texas Coal Co. v. Chandler, 71 Ark. 518, told the jury that “if the plaintiff (a mine worker) requested his foreman to furnish him props to keep the mine roof from falling, and the foreman promised to do so, and plaintiff relied upon such promise .and continued to work under the dangerous roof, he did not assume the risk of so doing.” Judge Riddick, speaking for the court, said: “But, conceding that he did not assume the risk incident upon the failure to furnish the props necessary to support the roof, it does not follow that he was guilty of negligence in working under an unsupported roof; for the fact that the foreman promised to furnish the props necessary to support the roof did not justify the plaintiff in exposing himself to danger so obvious that no person of ordinary prudence would under like-circumstances have exposed himself to it. As before stated, whether he was guilty of negligence in remaining at his work when there were no timbers on hand to support the roof is a question for the jury to determine, from a consideration of all the circumstances of the case.”
The instructions in the case at bar avoided the very error pointed out in the above case, and conformed to the law as there announced, and to the doctrine of several other recent cases. See especially St. Louis, I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507, and instruction number 8 approved in that case.
If there was a promise to repair, it was purely a question for the-jury under the evidence as to whether Holman continued in-1 the service an unreasonable 'time waiting for the master to make his promise good. For, if H-ol-man knew of the defect at all, according to the testimony of at least one of appellant’s witnesses,, the jury might.have found that it was only three or four weeks before his injury that he became aware of it. The -court declared the law correctly on the doctrine of assumed risk, leaving out the promise to repair, in appellant’s prayer number two. In this and other instructions the court fully and fairly presented to-the jury every question that the evidence warranted from the viewpoint of appellant as well as appellee. Appellant could not have been prejudiced by appellee’s prayer declaring it to be the duty of the appellant to cause inspections to be made of its tracks and switch stands. While it is true that no specific negligence in that particular is charged, it is equally true that the negligent conditions alleged could not have existed, had there been proper inspection. Negligence in the particulars alleged is proved by the undisputed evidence. We are of the opinion, upon the whole record, that there was no error in the instructions prejudicial to appellant, and that the evidence was sufficient to sustain the verdict. The judgment is therefore affirmed.