| Ark. | Apr 3, 1922
(after stating the facts). The effect of our opinion on the former appeal was to hold that the use of an uncovered set screw upon the collar on an elevated line shaft was not negligence, as a matter of law, under the conditions set out in the statement of facts, but that the question of negligence in this respect was for 'the jury. Although the use of set screws and projecting bolts upon line shafts is generally held not to be negligence as a matter of law, it does not follow that it would not be negligence to use them without being guarded or covered where, by their proximity to the floor and other places of work, workmen would be subjected to unusual danger. If the accident happened as claimed by counsel for the plaintiff — that is, if in trying to pull out a plank from the cog wheel, or from unclogging the conveyor chain while standing near the uncovered or unprotected set screw, Scott slipped or lost his balance, and. while falling his clothing caught in. the set screw and wound around the line shaft and thereby killed him, the case falls within that line of cases in which it has generally been held that, where an employee is injured by unguarded machinery with which he comes in contact by reason of some such cause as leaning over, slipping or losing his balance, he cannot be held to have assumed the risk as a matter of law. The defective condition of the conveyor trough and the consequent clogging of the conveyor chain is only important as accounting for Scott’s fall. It may be stated in this connection that, notwithstanding Scott was a mill foreman, he was doing the work of another under the command of his superior at the time he was killed, and his rights were practically the same as those of any other workman who possessed the same knowledge and skill in the premises as he did.
To constitute actionable negligence, there must be negligence and injury resulting as the proximate cause of it. Proximate cause has been defined as a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue.
It is true that, according to the theory of the plaintiff and.the evidence introduced to support it, Scott was injured by falling from the walk-way while engaged in unclogging the conveyor chain which had become clogged on account of the accumulation of particles of wood by reason of the defect in the lining of the conveyor trough, nevertheless it. is conceded, or in any event it may be fairly assumed from the evidence, that the set screw caught his clothes and caused them to be wound around the revolving shaft, and thereby killed him. It does not follow that which caused Scott to fall was the proximate cause of his injury. The set screw would have caused the injury whether or not the defendant had been guilty of negligence with reference to the defective condition of the conveyor trough. This alleged defect was only a condition, and was not the proximate cause of the accident which resulted in Scott’s death. The set screw would have produced the same injury if Scott had fallen 'because of the slippery condition of the walk-way or as the result of his own carelessness while going along the walk-way to see if the conveyor trough had become clogged. Hence it is apparent that if the set screw had been covered Scott might not have been killed, and that if it was left uncovered he would be injured if he fell against it while the line shaft was revolving. Hence the negligence of the defendant in failing to cover the set screw, if the jury should find that it was negligent in this respect, was the direct and proximate cause of the injury, and the clogging of the conveyor chain was only a-condition, and as such was not the efficient cause of the injury.
Of course the opinion on the former appeal is the law of the case and must govern here. We have stated-, however, the effect of that opinion as we understand it from the language used, without quoting at length from it. Therefore, we are of the opinion that the instructions of the court at the instance of the plaintiff are erroneous. The instruction of the court should have only submitted to the jury the negligence of the defendant in leaving an exposed set screw under the surrounding conditions, and should not have left to the jury the question of negligence ‘of the defendant in allowing blocks or particles of wood to have accumulated on the conveyor chain and thereby clogging it by reason of the defective condition of the lining in the conveyor trough. If the alleged defect in this respect was not the direct and proximate cause of the injury, it necessarily follows that the court' erred in submitting it to the jury as a question of negligence on account of which the plaintiff might recover.
In instruction No. 1 as well as other instructions given at the request of the plaintiff, the court submitted to the jury, in general terms, the negligence of the defendant on all the grounds alleged in his complaint. The allegations of negligence with regard to the defective condition of the lining of the conveyor trough was one of the allegations of negligence set out in the complaint. Then, too, in instruction No. 15 this allegation of negligence was expressly submitted to the jury, and the jury was told that, if such negligence -contributed to the decedent’s death, it should take this into consideration in arriving at its verdict.
On the question of negligence, as we have already seen, the trial court could only submit that which was the direct and proximate cause of the accident, and it was error to submit other alleged grounds as a basis for the jury to find for the plaintiff. The instruction should have limited the jury upon the subject of negligence to that which was the direct and proximate cause of the injury, and, not having done so, the trial court committed prejudicial error, which calls for a reversal of the judgment.
It is insisted by counsel for the defendant that the undisputed evidence on the present appeal shows that Scott had helped to repair the collar in which the set screw in question was placed, and that he necessarily knew of its existence. Hence they claim that the case should not be remanded for a new trial, but that the cause of action should be dismissed^ We do not agree with counsel in this contention. As we have already seen, the question of whether the use of the uncovered set screw, under the facts and circumstances in the case, constituted negligence on the part of the defendant was one for the jury, and this would not be changed by the fact that Scott knew that the set screw was there. That fact would be for the jury to consider on the question of the assumption of risks, which should be still left to the jury.
Therefore, we are of the opinion that the judgment must be reversed, and that the cause should be remanded for a new trial. It is so ordered.