Railway Co. v. Jagerman

Hughes, J. (after stating the facts.) The first and third instructions given for the appellee were ambiguous and misleading, and almost identically the same instructions were condemned by the court in the case of the Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 236, where the court said of similar instructions: “They may be reasonably interpreted to mean that a master is bound to furnish his servants with a reasonably safe place in which to work, and with safeguards against accidents. This is not the law.” It is well settled, said the court, in substance, that when one enters the service of another, he takes upon himself the ordinary risks of the employment in which he engages. On the other hand, the employer takes upon himself an implied obligation to provide the persons employed with suitable instruments and means with which to do his work—when exercising due care himself—safely, or without exposure to dangers that do not come within the obvious scope of his employment. The seventh and eighth instructions are in contravention of the doctrine announced by this court in St. Louis, etc. R. Co. v. Harper, 44 Ark. 559, where the court said : “ It is not an absolute duty of the master to maintain suitable and safe engines and machinery for ' his servants. There is no warranty that they are safe in the beginning, or that they will be so at any time. The master’s duty is performed if he uses due care and diligence to effect this end, and this is rigidly required of him.” “When there is no notice' to the master of defects, and no blame imputable to him for not discovering them, he is not liable, if injury results to his employee therefrom.” Noyes v. Smith, 28 Vt. 59. “When an injury has occurred to the servant in consequence of machinery furnished by the master, to warrant a recovery the servant must show negligence, or the want of care and diligence by the master, in relation to the defect. The onus of proof is not shifted to the master, as in the case of a passenger injured by a common carrier, by proof of the fact that an injury has resulted from the defect.” In Little Rock & Fort Smith Ry. Co. v. Eubanks, 48 Ark. 474, Judge Smith, quoting from Patterson’s Railway Accident Law, sec. 284, said: “Railways do not warrant to their servants the safe condition of their line and machinery; and they guarantee only that due care shall be used in constructing and keeping in repair and in operating the line, appliances and machinery.” Little Rock & Fort Smith R. Co. v. Duffey, 35 Ark. 602; Probst v. Delamater, 100 N. Y. 266. Though instructions adopting a different theory to these were given at the request of the defendant, they were contradictory, and not explanatory of those given for the plaintiff, and did not cover the defects in them. “The court should harmonize the instructions, else they are calculated to confuse and mislead the jury.” Selden v. State, 55 Ark. 397. For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. Bunn, C. J., was disqualified.