Western Coal & Mining Co. v. Buchanan

Hirr, C. J., (after stating the facts.) 1. It is contended that there were not facts sufficient to justify the court in sending the case to the jury, but this contention is not sound. There were sufficient facts to go to the jury upon the theory that the pit boss delegated to Korkille the duty of inspecting the working place for gas, and that Korkille negligently performed the inspection. The fact that Korkille was a fellow-servant of Buchanan in the performance of his labors a-s a track man would not prevent him from also being vice principal if master’s duty was placed upon him. The duty of inspecting a mine for gas .is always a principal’s -duty, and its delegation to a servant does not make that servant a fellow-servant of his co-workers; but he becomes, while in the performance of such duties of inspection, a vice principal. There was a conflict in the evidence as to whether such theory was the truth of thi-s case. And the court -in the seventh instruction properly sent that issue to the jury. 2. The court should have given- the 10th and 14th insructions requested by appellant. There were no instructions given that covered the hypothetical case stated in each of these instructions, and there was evidence tending to prove the truth of the hypotheses assumed in them. If these hypotheses were true, it was the duty of the jury to find in favor of appellant, but that opportunity was not -given to the jury. It is true that other instructions .were given which correctly stated the general rules of law governing -the cause -of action; but none of them went to the specific facts outlined in' these two- instructions, which were sustained by the evidence on the part of appellant, and which, if believed by the jury, would have entitled appellant to a verdict. The tenth refused instruction is justly criticised as containing conversations between witnesses when it should have merely stated the facts relied upon in concrete form. It is not open to the objection of being argumentative, nor of singling out any particular fact and of laying undue stress upon it. While in awkward form, it does present to the jury the facts adduced by appellant which, if believed, would have entitled it to a verdict; and these facts were not presented anywhere else in the charge. The 14th refused instruction is not open to the criticism of the 10th, and certainly should have been given. It is settled law in this jurisdiction that it is error to refuse to give a specific instruction clearly applying the law to the facts of the case, even though the law in a general way is governed by the charge given, unless it appears that prejudice has not resulted. St. Louis & S. F. Ry. Co. v. Crabtree, 69 Ark. 134; St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227; Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 438. "And this is the general rule elsewhere. See Hughes on Instructions to Juries, § 7. , It cannot be said in this case that no prejudice has resulted, because appellant’s whole case in concrete form has not gone to .the jury, and it is impossible to tell what -weight the jury would have given to appellant’s testimony unless it was fairly submitted to their consideration under appropriate instructions. “The court has no -discretion to withhold instructions appropriate to any theory -of the cause sustained by competent evidence.” Smith v. State, 50 Ark. 545. See also White River L. & W. Ry. Co. v. Star Ranch & Land Co., 77 Ark. 128. There is no error when -there is a correct general charge and no -specific instructions in proper form are requested. Western Coal & Mining Co. v. Jones, 75 Ark. 76; Fordyce v. Jackson, 56 Ark. 594; McGee v. Smitherman, 69 Ark. 632; Western Union Tel. Co. v. Ford, 77 Ark. 531; Hughes on Instructions to Juries, § 7. The application of these principles to the instructions in question call for a reversal of the cause. 3. The instruction -on the measure of damage is criticised for containing an element of permanent impairment of ability to earn a livelihood, and it is claimed that there was no evidence to prove permanence of the disability. The evidence of it is meagre, and has to be gathered largely from inference if at all. An instruction should contain no element of damage not covered by evidence. 4. There is also an exception made to the argument of counsel. It is hardly to be supposed that the argument will be repeated on another trial; but attention is called to the case of Reese v. State, 76 Ark. 39. For errors indicated, the cause is reversed and remanded.