Buena Vista Veneer Co. v. Broadbent

Hart, J., (after stating the facts). It is first insisted by counsel for the defendant that the court erred in giving to the jury, over their objection, instruction numbered 5, and we think they are right in this contention. The instruction is as follows: “It was the duty of the defendant to exercise ordinary care to furnish the plaintiff with a reasonably safe place in which to perform the duties of his employment and reasonably safe means, instruments and appliances with which to perform his duties, and to exercise ordinary care to maintain them in that condition and also, if the plaintiff was inexperienced., and, for this' reason, did not know of or appreciate the dangers of his imme-i diate employment, if any, and defendant knew or ought to have known this in the exercise of ordinary care on its part, then it was the defendant’s duty to instruct him as to both latent and patent dangers, so that the deceased would be enabled to perform his duties in safety to himself. If defendant failed to properly discharge any of these duties to plaintiff, in so far as they are covered by the allegations of negligence in this case, and, by reason of such neglect or failure of defendant, plaintiff was injured while .using due care himself, and in the. line of his duties and when he had not assumed the. risk, then the defendant is liable in this action. If defendant performed his duty to the plaintiff as above indictated, or if plaintiff was himself wanting in ordinary care for his own safety, contributing to hiso injury, or if the plaintiff had assumed the risk, in either case you should find for the defendant. ” . The vice of the instruction is that the court in effect told the jury that even if the danger was patent the defendant owed Broadbent the duty of warning him because of his inexperience. Broadbent was twenty-eight years old and of average intelligence. He was a stout, able-bodied man and had worked around the mill yard in various capacities for the most of the time of the year preceding the accident. The fact that the water was hot was apparent to any one walking around the vat. There was no evidence tending to show that any special training or warning was necessary to enable Broadbent to do with safety to himself the act in the performance of which he was injured. A master is not bound to warn and instruct his servant as to dangers which are patent and obvious. Louisiana & Ark. Ry. Co. v. Miles, 82 Ark. 534; Railway Co. v. Torrey, 58 Ark. 217. It is earnestly insisted by counsel that the court erred in not directing a verdict for the defendant, and it must be admitted that this is an exceedingly close question. The only theory upon which the plaintiff can recover is that the defendant created a deceptive condition and that there was present an element of concealed danger or deceptiveness of the danger of walking on the plank. It is the theory of the plaintiff that the plank appeared to he laid squarely on the top of the north wall, and was apparently intended as a covering to protect the wall. On the other hand, the defendant claims that it was perfectly obvious that the plank was laid loosely along the top of the wall of the vat, and its insecure position was patent to a casual observer. The record shows that Mr. Hall and Mr. Newhart were present when the accident occurred and it might be inferred that they saw it. They were not introduced as witnesses in the case. On a new trial they may be introduced as witnesses, and their testimony may shed further light on how the accident happened. Hollingsworth and Carter differ as to which end of the plank Broadbent walked on when he fell into the vat. Carter says that he went on to the plank from the west end and that the plank appeared to him to be on the north wall of the vat. Hollingsworth says that he walked on the plank from its east end and that the open spaces between the plank and the wall of the vat were visible to him from where he stood. In any event, in view of a new trial of the case, and under the circumstances, we will not under the facts of the present record decide whether there is sufficient testimony to allow the case to go to the jury. For the error of the court in giving instruction numbered 5, as indicated in the opinion, the judgment must be reversed and the cause will be remanded for a new trial.