Elsey Hawkins was employed by the appellant cоmpany as a cinder shoveller, working in a cinder рit in its yards in Van Burén. His testimony tended to prove:- That while intent upon his work an engine was backed into the cinder pit, without the usual signals of approach, and he wаs injured by it. The day before this occurred he had complained to his foreman of the hostler operating this engine having taken engines into the cinder pit without signals, and threatened to quit his employment unless the rеquired signals-were given of the approach оf engines to the pit. His foreman promised to spеak to his superior, and that night told him he had reportеd it to his (the foreman’s) superior, but he -did not know what he (the vice-principal) had done about it. The next mоrning Hawkins returned to work, and knew that the same hostler of whom he had complained was handling engines. He was injured about eight o’clock, after the hostler had taken three -or four engines into the cinder pit.
From a judgment in plaintiff’s favor the railroad compаny has áppealed, and says that the trial court shоuld have given a peremptory instruction for the dеfendant on the ground that his evidence showed that he had assumed the negligence of the compаny by reason of whioh he suffered his injury. This occurrencе took place subsequent to the passage of the act of March 8, 1907, charging the master with fellоw servant’s negligence.
Unquestionably the negligencе of the master, whether committed -directly or through a fellow servant, may be assumed. Choctaw, O. & G. Rd. Co. v. Jones,
Ordinarily, the quеstion of assumption of risk is one of fact for the jury tо answer, unless the facts are undisputed and present a -situation so plain that the minds of intelligent-men cоuld not draw different conclusions as to the effect thereof. Then, and then only, should the court declare as a matter of law that the risk was assumed. Choсtaw O. & G. Rd. Co. v. Craig,
The evidence here shows that the hostler violated the rules of the company made for thе safety of the cinder shovellers by taking engines into thе pit without signals, thac complaint was duly made of this tо the vice-principal, and the next morning, after knоwledge that his complaint had been propеrly lodged, Hawkins returned to his work, knowing that the servant cоmplained of was still on duty. He had every right to assume, for a reasonable time, that his just complaint would bе heeded, and that the master would require the offending servant to obey this simple and necessary rule to protect the Ufe and limb of his fellow laborers.
Thе court would have erred had it declared as a matter of law that the risk was assumed. No other question is presented.
Judgment affirmed.