| Ark. | Jan 24, 1916
(after stating the facts). It is contended that the court erred in refusing said instruction as requested and in amending same and giving it as amended over appellant’s objection.
The testimony is undisputed that the appliances in use at the time of the accident were installed two or three years before and it is not disclosed but that same were and had remained in the position and condition all the time until the date of the injury: that it is the kind of hoisting apparatus in general use in shaft mines and it was not shown by plaintiff to have been improperly constructed. One of his witnesses testified that the blocks were not high enough it seemed, and that the cage would hang and coal would drop 'but he also stated that coal always fell ¡back and had been doing so since the time the mine was opened and that where self-dumping cages were used that coal would fall down the shaft and there was no way to prevent it.
Another witness who testified that the blocks were too low also stated that coal would fall anyway in the unloading of cars and could not be prevented from doing so.
The evidence may be said to be unoontradi'cted, also that coal was frequently loaded several-inches above the bed of the cars and rolled off in the ordinary hoisting of the cars and fell down the shaft or lodged on the buntons and later fell down when shaken off by unloading operations.
Said instruction numbered 8 correctly stated the law and appellant was entitled to have it given to the jury without amendment or ¡modification. It applied the law to the facts of the case in a concrete way and no other instruction covered the point. The refusal to give it was error since it does not appear that prejudice did not result therefrom.
If the jury had found that the injury occurred as recited in the instruction, the defendant was entitled to •a verdict and in any event to have the question -submitted to the jury without the proviso. The burden of proof was upon the plaintiff to show that the injury occurred because of the negligence of the coal company and the jury might have been misled by this proviso into thinking that the coal company would be liable for the injury even if it occurred as set out in the instruction, unless they found that it was not caused by some other negligence of said company. It may be that the testimony is sufficient to warrant the inference that the injury occurred by coal falling from the self-dumping cages in the unloading of it, because the dumping blocks were too low, which is the only negligence alleged and an injury caused by the falling of the coal because the cars were loaded -above the bed or some of the coal that had lodged on the buntons was shaken off, would not have warranted a verdict.
If the apparatus in use was standard equipment in general use in such coal mines as the evidence tended to show and the instruction told the jury, the injury to the appellee by the falling of coal down the shaft in the unloading of it was but an ordinary risk of his employment which he assumed in working as he did at the bottom of the shaft at the sump, knowing that the coal would fall. He necessarily knew the danger from the falling coal, it being obvious to any one of ordinary intelligence, and the testimony ¡shows that he had been injured in the isame way a few weeks previous to the injury for which this action was brought, while engaged in his work at the bottom of the shaft.
For the error indicated, the judgment is reversed and the cause remanded for a new trial.