Ft. Smith Oil Co. v. Slover

Hughes, J. Twenty-eight instructions were given in this case, an equal number for the plaintiff and the defendant. Sixteen asked by the defendant were refused. There was no evidence upon which to base the fourth instruction, as modified and given by the court, for the plaintiff below. The sixteenth given for the plaintiff, to the effect that the burden of proving negligence on the part of the defendant was on the plaintiffs, and of proving contributory negligence on the part of the deceased was upon the defendant, accords with the rules settled by the former decisions of this court. 1. Risks assumed by-servant. Some of the other instructions are abstract, some not explicit, some obscure, and others are based upon the same theory as that embodied in the second given for the plaintiff, which is the only one we feel called upon to notice at length in this opinion, and which we find is, in our opinion, erroneous. It is as follows: “The servant’s implied assumption of risk is confined to the particular work or class of work for which he is employed. There is no implied undertaking of risks, except such as accompany, and are part of, the contract of hiring between the parties. If the servant, by the express or implied authority of the master, is carried beyond the contract of hiring, he is carried away from his implied undertaking as to risks. If the master orders him to work temporarily in another department of the general business, where the work is of such a different nature and character that it cannot be said to be within the scope of the employment, and where he is associated with a different class of employees, he will not, by obeying such orders, assume the risks incident to that service, or assume the risk of the negligence of such class of employees, but would be entitled to recover, if injured by reason of the negligence of such class of employees ; provided he himself was not guilty of contributory negligence.” While an employer is not an insurer of the lives or persons of his employees, he does impliedly engage that he will not expose them to unnecessary and unreasonable risks to life or serious bodily injury. Negligence is defined to be “the omission to do something which a reasonable, prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable, prudent man would not do, under all the circumstances surrounding and characterizing the particular case.” In the case at bar it was proper, in determining the question o£ negligence, that the jury should consider the age, intelligence and extent of judgment of the deceased, and the character of the service demanded of him, whether the dangers of the service were apparent or not, and whether they were such as a man of such judgment, experience and intelligence as he possessed was capable of understanding and appreciating. In the Union Pacific Railway Co. v. Fort, 17 Wallace, 558, where a youth of inexperience was ordered to do a temporary work outside of his usual employment, and was injured in attempting to obey the order, the court said : “If the order had been g-iven to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he must have known that its execution was attended with danger. Or at any rate, if he chose to obey, that he took upon himself the risk incident to the same.” Before an employer can be held liable for an injury to an employee, while in his employ, the evidence must show in every case that the employer has neglected some duty which he owes to the employee ; and the mere fact that the employee was requested by the employer to do a temporay work outside of his ordinary employment is not a violation of a duty which he owes to his employee. If an employee, in obedience to the order of his employer, undertake to do work outside of his usual employment, without objection upon his part, and there is danger incident to performance of the work which is not apparent, or which the employee could not reasonably be expected, from lack of knowledge and experience, to understand and appreciate, and the employee’s inexperience and lack of knowledge is known, or ought to be known, to the employer, then it is the duty of the employer to instruct the employee how to proceed in the performance of the work and caution him as to the dangers incident thereto, and if the employer fail or neglect to so instruct his employee, and warn him of the danger, and the employee is injured by reason of such negligence of the employer, the employer is liable in damages for the injury thus occasioned. An employee assumes all ordinary risks within the scope of his employment, whether ordinary employment, or special employment. If Slover, the deceased, was requested by Burke to assist in unchoking the meal conveyer, and voluntarily undertook to do so, he assumed all the risks ordinarily incident to such service. Cole v. Chicago, etc. R. Co. 71 Wis. 114 ; Lothrop v. Fitchburg Railroad, 150 Mass. 423 ; 2 Thompson on Negligence, p. 976, sec. 7. When he undertook to perform the service, he stood in the same relation to the appellant he would have borne had he been specially employed to do the work. Cole v. Chicago, etc. R. Co. 71 Wis. 114 ; Lothrop v. Fitchburg Railroad, 150 Mass. 423 ; 2 Thompson on Negligence, p. 976, section 7. 2 D oi ser?ancowara If he was inexperienced and ignorant of the approaches to the meal conveyer, and the apparent approaches to the same were such as were likely to lead Slover, on account of his inexperience and ignorance, to undertake to ascend to the meal conveyer in the way he did, and the danger of ascending' to it in the way he did was unknown and not apparent to him on account of such ignorance and inexperience, and Burke knew or ought to have known these facts, it was his duty to have informed Slover how to reach the meal conveyer, and to have instructed him and cautioned him sufficiently to have enabled him to comprehend the dangers, and to ascend to the meal conveyer safely by the exercise of proper care. If the circumstances were such that the appellant owed it as a duty to Slover to instruct him, and it failed to do so, and Slover was injured on account of its failure to do so, the appellant was liable in damages for the injury. But if the conditions which imposed upon the appellant the duty to instruct did not exist, there was no negligence in the failure to do so.. Cole v. Chicago, etc. R. Co. 71 Wis. 114 ; Lothrop v. Fitchburg Railroad, 150 Mass. 423 ; 2 Thompson on Negligence, p. 976, section 7. In Lothrop v. Fitchburg Rd. 150 Mass. 423, it is said : “The general rule of law is, that when the danger is obvious, and is of such a nature that it can be appreciated and understood by the servant as well as by the master, or by any one else, and where the servant has as g’ood an opportunity as the master or as any one else of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of reasonable care, the servant cannot recover, against the master, in consequence of the condition of things, which constituted the danger. If the servant is injured, it is from his want of care.” In Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 237, it is said: “If, having sufficient intelligence and knowledge to enable him to see and appreciate the dangers to which he will be exposed, he knowingly assents to occupy a place set apart to him by the master and does so, he thereby assumes the risks incident thereto. * Having voluntarily accepted the place occupied by him, he cannot hold the master liable for injuries received by him because the place was not safe. If, however, the servant, by reason of his youth and inexperience, is not aware of or does not appreciate the danger of the work he is employed to do, or the place he is employed to occupy, he does not assume the risks of his employment until the master apprises him of the dan- 3. Asiowiio is vicc-priiiciIf Burke had the power to employ and discharge laborers in his department, and he was the foreman his department, the duty of the master to instruct, if he owed that duty to Slover, devolved on Burke. 4. when a® oif ín adm¡ The admission of the testimony of Mrs. Slover, that Capt. Mathews, the general superintendent of the company, told her that “the accident never would have happened if he had been there, that he would have stopped the machinery before he would have let him go up there,” was erroneous. It was not a part of the res gestae. It did not tend to throw light upon or explain the accident, and did not emanate from it, and was remote from it in point of time. If this evidence was admissible to contradict Mathews, it was immaterial, because Mathews’ statement was but an expression of an opinion, and if it had been desired to get his opinion as an expert, he should have been called as a witness by the appellees. It could not be used as an admission by Mathews as agent to bind the company, for it was not made by him while he was in the prosecution of the business of his agency, or while in the performance of any duty as agent. The statement of Mathews did not explain any act of agency, and accompanied no such act. Fargason v. Edrington, 49 Ark. 207 ; Erie etc. Ry. Co. v. Smith, 125 Pa. St. 259 ; Mechem on Agency, sec. 714. 5, Slate. “part ofld 1101 The statements of the deceased to Mrs. Slover were made about twenty-five or thirty minutes after the injury, and after he had been extricated from the seed' conveyer in which his leg was caught, and had been borne a block away, and were made in response to questions asked him by Mrs. Slover. In Carr v. State, 43 Ark. 104, it is said, in reference to statements which are part of the res gestae : ‘ ‘ Nor need any such declarations be strictly coincident as to time, if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. But they must stand in immediate causal relation to the act, and become part, either of the action immediately preceding it, or of action which it immediately precedes.” It is sometimes, difficult to determine when declarations, should be considered as part of the res gestae. Here the declarations were made twenty-five or thirty minutes, after the accident had happened, and after Slover had been extricated from the seed conveyer, placed upon a stretcher, and borne a block away, and the whole transaction had terminated. Mr. Wharton, in his work on Evidence, pp. 258 and 26,7, says: “The res gestae may be defined as those circumstances, which are the undesigned incidents of particular litigated acts, and are admissible when illustrative of such acts. These incidents may be separated from the act by lapse of time more or less appreciable. Their sole distinguishing feature is that they should be necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emulations from, such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to. the act, a relation not broken by individual wariness seeking to manufacture evidence for itself. Therefore, declarations which are the immediate accompaniments of an act are admissible as part of the res gestae ; remembering that immediateness is tested by closeness, not of time, but by causal relation as just explained.” This is quoted with approval in Little Rock, etc. R. Co. v. Leverett, 48 Ark. 338, and is, we think, an accurate statement of the rule. It appears to the court that these statements of the-deceased made to his wife have no causal relation to the act they are supposed to have been intended to illustrate ; that they were not so connected with the principal fact, or such immediate emanations from it, or such immediate-accompaniments of it, as to constitute parts of the .res gestae; and that it was error to admit them. For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.