| Ark. | Dec 22, 1917
(.after stating the facts). (1) The appellee predicates his canse of action upon section 5352 of Kirby’s Digest, which provides: “The owner, agent or operator of any mine shall keep a sufficient amount of timber when required to be used as props, so that the workmen can at all times be able to properly secure the said workings from caving in, and it shall be the duty of the owner, agent or operator to send down all such props when required and deliver said props to the place where cars are delivered.”
The appellant contends that the undisputed evidence shows that it was the duty of the appellee to make his place of work safe, that under the undisputed evidence the props were not required or desired by him for the purpose of making his working place safe, and that it was his duty, under his contract, to make his place safe by prizing or shooting down the rock, or in some other way than by the use of props to hold up the rock. To sustain this contention appellant relies upon the case of Western Coal & Mining Co. v. Fountz, 101 Ark. 205" date_filed="1911-11-20" court="Ark." case_name="Western Coal & Mining Co. v. Fountz">101 Ark. 205. But in that case the undisputed evidence showed that the timbers were not ordered to prop up the loose rock and would not have been used for that purpose if they had been furnished before the injury occurred. Such being the uncontradicted evidence, we held that “the failure to furnish props had nothing to do with the injury, and the result would have been the same if props had been furnished.” And further on we said: “Even though the workmen were not negligent in working under the loose rock, the injury resulted solely from an error of judgment on their part in concluding that the rock would not fall unless shaken down by shot firing, and that it would be safe to work under it for the remainder of the day and until it could be ascertained whether or not the shot firing would bring it down.” But the facts of that case are entirely 'different from the facts here. Here the jury were justified in finding from the testimony of the appellee and his assistant, who was working with him at the time of his injury, that the props were ordered by them so as to enable them to keep the rock from falling and make the place safe while they were working under the same. The witness expressly testified that his purpose in ordering the props “was to prop the rib side so as to make it safe on that side to prevent the rock from falling.” Witness stated: “If the props had been furnished he would have used the props to prevent the rock from falling,” and he stated further that “going so long without sufficient props caused this to break. It was a treacherous piece of roof. ’ ’
True, the witness, on cross-examination, stated that in trying to wedge it down, and prizing it down and testing it, it seemed to him that he made a mistake in judgment, and that after so testing it and after trying to prize it down, they sounded it with a pick and concluded it was safe to work under. But when the testimony of the appellee is considered as a whole it is very clear that it made a question for the jury to determine as to whether or not appellee demanded the props for the purpose of using the same to make his place safe, and whether or not, under the circumstances, they were necessary for that purpose, and whether, if the same had been furnished as requested, they would have been used for the purpose indicated and thereby have prevented the injury to the appellee.
The issue therefore as to whether or not the failure of the appellant to furnish props- as the statute requires was the proximate cause of the appellee’s injury was one, under the evidence, for the jury to determine. The court properly submitted this issue to the jury by declaring what the statute required, .and telling the jury, in effect, "that if appellant failed to furnish props and this failure was the proximate cause of appellee’s injury that the apnellant" would be liable even though the jury should find that the appellee made a mistake of judgment and that but for such mistake he would not have been injured.
(2) The court correctly instructed the jury, in effect, that if the proximate cause of the injury was the failure of appellant to furnish props that neither the defeases of contributory negligence nor assumed risk could avail the appellant. If, under the evidence, the proximate cause of the injury was the failure to furnish props as the statute required, then appellant had violated this statute (Act 175, Acts 1913). Where the violation of any statute enacted for the safety of the employees contributes to the injury or death of an employee the corporation can not invoke in its defense the contributory negligence and assumption of risk on the part of the employee.
The theory of the defense was that the uncontradicted evidence showed that the appellee would not have used, and that it was impracticable for him to have used the props if the same had been furnished him, and that therefore the failure to furnish props was not the proximate cause of appellee’s injury. But, as we have stated, under the evidence this was an issue of fact for the jury. Appellant further contends that under the evidence such props as the appellee ordered had been delivered before the rock fell, and that the appellee did not use or attempt to use them to prop the rock, and that therefore the failure to furnish the props was not the proximate cause of his injury. This was also an issue for the jury, and the theory of appellant was correctly presented in prayers for instructions presented by appellant which the court granted.
There is no reversible error in the record, and the judgment is therefore affirmed.