King-Ryder Lumber Co. v. Cochran

Hughes, J. (after stating the facts). It is contended that the appellee, Ned Cochran, by continuing to operate the edger after he had discovered that it was not in order, assumed the risk incident to its operation. But it must be remembered that when he discovered its condition he promptly reported to the foreman that it was not in proper condition, and that it would not saw a straight line, and that thereupon the foreman told him that it was out of order, but to go and run it until noon, and that he would have it repaired, whereupon he continued to run it, obeying the direction given him. By reporting its condition to the foreman, if he appreciated the danger of operating it in its then condition, he manifested his unwillingness to assume the risk of its operation in that condition, and by the direction of the foreman he was relieved of the assumption of the risk attending its operation, unless the danger was so patent that no person of ordinary prudence would have continued to operate it without assuming the risk. We think, therefore, that the risk of operating it under the circumstances was not an assumed risk. Objection is urged to the giving by the court of the second instruction for the plaintiff, which reads: "Second. The court instructs the jury that if they believe from the preponderance of the evidence that plaintiff was young and inexperienced, and ignorant of the condition of the machine, and the apparent condition of the same was such as was likely to lead the plaintiff, on account of his youth and inexperience and lack of knowledge, to undertake and operate the machine in the way he did, and the dangers of operating it in the way he did were unknown and not apparent to him on account of such youth, inexperience and lack of knowledge, and the defendant knew, or ought to have known, these facts, it was its duty to have informed the plaintiff how to operate the machine, and to have instructed him and cautioned him sufficiently to have enabled him to comprehend the dangers, and to operate the machine safely by the exercise of due care; and if the circumstances were such that the defendant owed it as a duty to plaintiff to instruct him, and it failed to do so, and plaintiff was injured on account of its failure to do so, the defendant is liable in damages for the injury.” The evidence tended to show that Ned Cochran, the appellee, was only 18 years of age, and of limited experience in handling such machines, and whether he understood the danger incident to its operation, out of condition as it was, which he knew, was a question of fact' properly left to the jury by this instruction. In the ease of Davis v. Railway Company, 53 Ark. 117, where a youth of 18 years of age, who knew that the rails at a switch were unblocked, got his foot hung in the space between the guard rail and the main track, and was killed by a moving train, it was ■held that he could not be held to have assumed the risk of the danger attendant upon the service. The syllabus of the opinion in Davis v. Railway, 53 Ark. 117, is as follows: “A knowledge of facts which involve a latent danger does not imply a knowledge of the danger itself. Thus, where a young and inexperienced servant employed in coupling ears has his foot caught in an unblocked guard rail, and is run over and killed by a moving train, an instruction that his knowledge of the existence of the unblocked guard rail implied a knowledge and assumption of the attendant danger was erroneous.” “Knowledge of the danger was itself a question of fact,” said Chief Justice Cockrill in that case, “and if the jury believe that the deceased, by reason of his youth and inexperience, did not know or appreciate the danger of the service about the unblocked rails, and that the company had exposed him to the danger without warning him of it, they should have found that the risk was not one he had assumed by entering the service.” Davis was 18 years old. The appellant contends that the jury was not properly instructed upon the question of the contributory negligence imputed to the plaintiff. Upon contributory negligence, the court, in the twentieth instruction given at the instance of the defendant, told the jury: “Plaintiff was bound to see patent and obvious defects and dangers in the appliances handled by him, and assumed all patent and obvious risks, as well as those incident to the business; and if he knew of defects in the appliances, and continued to work with the same, he is treated as being guilty of contributory negligence.” Though this instruction is not strictly correct, it was favorable to the defendant. Without discussing the very many instructions given and refused in this case, it is sufficient to say that we think there is no prejudicial error in giving and in refusing to give instructions. It is the opinion o'f the court that the evidence was sufficient to support the verdict. The judgment is affirmed. Bunn, C. J., dissents.