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(232 S.W.)

servants of appellant, in charge of receiving [ to the effect that if the "passer" had exerlumber from the floor below, in not inspect- cised ordinary care to inspect the lumber he ing the lumber and discarding that which could have detected a piece of lumber that was defective on account of splinters and had a large splinter on it, or a knot. knots, which it was their duty to do. The appellee alleged that it was his duty to run the lumber through the saw, one piece following another without interruption, and therefore he did not have time other than to casually cast his eye to the table for a piece of lumber; that he had no time to inspect same for defects, and therefore he did not know of this defect, but it was known, or in the exercise of ordinary care should have been known, by the servant whose duty it was to inspect the same before placing it on the table for handling by the appellee; that the failure of appellant's servant to discharge his duty as alleged was the cause of appellee's injury, for which he asked a judgment for damages in the sum of $20,000.

The appellant answered, denying all material allegations of the complaint, and set up the defenses of contributory negligence and assumed risk on the part of the appellee.

The appellee testified, among other things, that when the lumber came from downstairs it was the duty of the man that stands by the chain and pushes the boards off onto the table, called the "lumber passer," to inspect that lumber. Only high-grade first-class lumber, clear of knots and splinters, passed to the appellee's saw. Any lumber that was not proper to go to that saw was passed

back to the other machine or thrown aside; "that was what the 'passer' was supposed to do." This passer was a colored man, who had been working at the job about a week. Witness heard Walker, the superintendent, and Mitcham, who kept up the saws, tell the passer to inspect the lumber, and to put nothing but the best lumber there for appellee to handle, and he relied on the passer doing his duty. In describing his own duties, appellee stated that it was his duty to keep the lumber cut, keep the machine going, and keep them in stock, and he did not have any time to inspect the lumber on the table, and it was not his duty to do so. He had to keep his eye on the machine all the time. Witness further explained that he received his injury on account of a shattered and splintered piece of board. The splinter came right out from the saw under the board. If the inspector had done his duty, a board with splinters could not get to the table from which the appellee took the lumber that he passed through the saw. Appellee had once filled the position of "passer," and knew what his duties required. Appellee was told that this colored passer was inspecting the lumber, and appellee relied on his performance of that duty. Other witnesses testified, corroborating the above testimony of the appellee as to the respective duties of the ripsawyer and the "passer," and

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On the other hand, there was testimony on behalf of the appellant tending to show that it was the duty of the ripsawyer himself to inspect the lumber before he put it through the ripsaw, and "not to put through the saw any [boards] that were not fit to make into the stock he was making”; that appellee was instructed by appellant's superintendent, and also by appellee's foreman, not to rip anything that would not make three-eighths stuff; that it was the duty of the ripsawyer to see that they were running clear lumber on No. 3, and in case the offbearers from the chain put stuff on appellee's table that was not suitable for the flooring, to throw it out. It was the duty of the lumber "passer" to a certain extent to inspect the lumber as he took it off the chains to put it on the ripsawyer's table, and he had been expected so to do. The only purpose in instructing them to put good lumber on appellee's table was to get the best stock into a thin "veneering flooring." It was not to protect the appellee in any way. All of them that pulled the boards off the chain on the table were told to always pick the lumber and get good stuff for that saw, but sometimes they got a bad piece on there, and they told the fellow who was ripping to throw it out if it was not fit to make three-eighths stuff.

There was also testimony on behalf of the appellee to the effect that lumber pullers were usually negroes. They ordinarily used inexperienced common labor for that job. There was also testimony adduced by the ap pellant tending to prove that the machine which the appellee was operating was protected by a hood and guides, so as to keep splinters and dust and particles from the saw from flying out and striking the operator above the waist line. The ripsawyer wore a leather apron to protect him against the splinters and knots that might fly from the saw, and to help him hold the plank to the guide line. If he were in an erect position, it would be impossible for a splinter from the saw to strike him in the eye. Appellee had been instructed not to stoop down and look in the machine while he was operating the same. At the time the appellee received his injury he was stooping over, looking into the saw and punching with a stick about 12 or 14 inches long. The appellant's superintendent had seen the appellee several times stooping down, looking into the machine, while operating the same, and he had cautioned him every time about that.

In instruction No. 1, given at the instance of the appellee, the court told the jury in substance that, if appellee was injured by want of ordinary care upon the part of the

Among others the appellant asked the following instruction:

servant of appellant in failing to properly plaintiff's own testimony or that of his witinspect the lumber placed upon the table for nesses." the appellee to handle, and that this failure to inspect was the proximate cause of the injury to the appellee, the appellant would be liable; that it was for the jury to say "No. 6. If you find from the evidence that from the evidence whether the appellee was the reason for instructing other employees to in the performance of his duty at the time of place on Wilkinson's table only high-grade his injury, and whether the appellant failed boards was merely to select boards suitable for the manufacture of a particular kind of finto exercise ordinary care to protect the ap-ished lumber, and not for the protection of the pellee from danger while in the performance operator, your verdict will be for defendant." of his duty, and whether such want of ordinary care, if shown, was the proximate cause of the injury to the appellee.

The court modified and gave appellant's prayer for instruction No. 18; the modification being indicated by the words set forth in italics, as follows:

"Even if you find from the evidence that another employee of the defendant was negli gent in allowing a defective board, or a board of low grade, to reach Wilkinson, if you further find from the evidence that Wilkinson knew that the board he placed in the machine was of low grade, or defective, and that it was more likely to splinter than a board of high grade, or one not defective, or if those facts were so obvious that an ordinarily prudent person, in the circumstances, would have been aware of them, and appreciated them, your ver dict should be for defendant, unless you find from the evidence that it was duty of another

In instruction No. 2 the court told the jury that the duty rested upon the appellant to permit no act of negligence whereby its servants may suffer injury, and to exercise or dinary care to protect him from danger; that if they believed the appellant failed to exercise ordinary care to properly inspect the lumber placed upon the table for the appellee to pass through his machine, and a piece of defective lumber was placed upon the table for appellee's use which was the proximate cause of the injury to the appellee by causing a large splinter to be thrown therefrom striking the appellee in the left eye, while he was operating the machine and using ordinary care for his own safety, with-employee of the defendant to inspect the board, out warning to him, and injured him, and that appellant thereby failed to exercise ordinary care to protect plaintiff from danger, and that the act of the servants of appellant in failing to properly inspect the lumber was the proximate cause of the injury to appellee, they should find for him, and assess his damages at such sums as they found from the evidence would compensate him for the 'injury received, unless they found that he was guilty of contributory negligence, or had assumed the risk, as defined in other instructions.

In instruction No. 8, given at the instance of the appellee, the court instructed the jury

that

"Every corporation, except while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such corporation, resulting in whole or in part from the negligence of such corporation, or from the negligence of any of the officers, agents, or employees of such corporation."

Instruction No. 10 is as follows:

"No. 10. Before it can be said that plaintiff assumed the risk in this case, you must find from the evidence that plaintiff not only knew of the danger to which he was exposed by reason of the employment and service, and which caused the injury, but also comprehended and appreciated such danger, or ought to have appreciated and comprehended the same, and the burden of showing that the plaintiff did know of and did appreciate such danger rests on the defendant, unless this fact is shown by the

and that Wilkinson relied on him so to do."

The appellant asked the instruction without the modification, and objected to the ruling of the court in modifying, and giving it as modified. The trial resulted in a judgment and verdict in favor of the appellee. From that judgment is this appeal.

[1] 1. The court gave an instruction to the effect that the jury could not single out any one instruction given by the court, but must consider all of the instructions together as the law of the case by which they were to be guided in arriving at their verdict. In Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 149, 150, 124 S. W. 1048, 1053, we said:

"Each instruction must be read as a whole, and all of its parts must be considered in determining its meaning; and when reference is made in one instruction to some other part of the charge, or when words are used in some instructions that are correctly defined in others, the other parts of the charge referred to and the other instructions must be considered in determining whether or not the particular instructions under consideration are correct."

The rule is well stated in St. L. S. W. R.

Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112, as follows:

"It is generally impossible to state all the law of the case in one instruction; and if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others."

(232 S.W.)

Applying the above rules to the instruc-, the issue of negligence the court should have tions of the court in the case at bar, we find told the jury that if, under the evidence, it that the court's charge, when considered as was the duty of the appellee to inspect the a whole, did not correctly declare the law lumber, to see that it was free from splinapplicable to the issues and to the facts ters, knots, and other defects, and he failed which the testimony tended to prove. The to perform this duty, which resulted in his appellee bottomed his cause of action on the injury, that he assumed the risk, and the alleged negligence of the appellant in fail- appellant was not liable; but, on the other ing to have the lumber which appellee was hand, if it was the duty of appellant's servhandling properly inspected. Appellee al- ant, the "passer," to inspect the lumber to leged that this duty devolved on a servant see that the same was free from defects liacalled the "passer," and that he negligently ble to produce the injury to appellee, and failed to discharge that duty. The appel- to afford him protection from such defects lant defended the action on the ground that while passing the lumber through the ripit was the duty of the appellee himself to saw, and the passer negligently failed to disinspect such lumber, and that such inspec- charge this duty, and such failure was the tion as was required of the "passer" was not proximate cause of the injury to the appelfor the purpose of protecting the appellee, lee, then the appellant was liable. but to aid the appellee in securing as the output from the ripsaw a certain quality of high-grade lumber called "veneering flooring," which it was the duty of the appellee to produce, and that appellee's injury was therefore incident to the risk which he assumed, and was caused by his own negligence. The appellee did not allege that the appellant was negligent in failing to exercise ordinary care to furnish him a safe place in which to work, nor appliances with which to do the work, nor in the employment of unskillful or inefficient fellow servants to aid him in the performance of his duties.

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[2] Such were the issues, and the testimony adduced warranted the court in submitting them to the jury. But the court erred in not submitting these issues in appropriate and correct instructions, and its charge as a whole was not harmonious and consistent, but was well calculated to mislead the jury. For instance, the court in its first and second instructions, given at the instance of the appellee, told the jury in effect that it was the duty of the appellant to protect appellee from danger while in the performance of his duty, and if the appellant through its agents and servants failed to exercise ordinary care to inspect the lumber placed on the table to be handled by the appellee, and that such failure was the proximate cause of the injury to the appellee, then the appellant was liable. The instructions as thus framed wholly ignored the contention of the appellant that it was the duty of the appellee to inspect the lumber himself, and that no such duty was required of the "passer" in order to make appellee's place of work safe and to afford protection to the appellee.

[3] The court refused appellant's prayer for instruction No. 6, in which appellant sought to have its theory on this phase of the case presented to the jury, and we do not find that any instruction was given covering appellant's theory and contention. There was evidence to justify such contention, and the court erred in ignoring it. On

If it was the duty of appellee to make the inspection, then the injury resulting from the failure to perform this duty was one of the ordinary risks of the employment which he assumed. But, if the duty devolved on the appellant's servant to inspect the lumber in order to afford the appellee protection, then the appellee did not assume the risk resulting from a failure on the part of the "passer" to perform that duty, unless such failure of the passer subjected the appellee to a danger which was so open and obvious that appellee was bound to know of and ap preciate it in the performance of his own duties, and in the exercise of ordinary care to protect himself from the ordinary risks and dangers incident thereto.

[4] Instruction No. 8, given at the instance of the appellee, is a literal copy in part of the statute (section 7144, Crawford & Moses' Digest). It is therefore correct as an abstract proposition of law, but the court erred in giving it without hypothetical statements showing how it would be applicable to the facts developed in the case. Without such explanation it was calculated to mislead the jury, and was tantamount to a peremptory instruction in favor of the appellee, and is in conflict with other instructions. K. C. Ry. Co. v. Becker, 63 Ark. 477, 484, 39 S. W. 358; St. L., I. M. & S. R. Co. v. State, 102 Ark. 205-207, 143 S. W. 913.

[5, 6] Instruction No. 10, given at the instance of the appellee, was erroneous, because it also ignored the theory of the appellant that it was the duty of the appellee to inspect the lumber for himself. If such were appellee's duty, then he assumed the risk, whether he knew of the danger resulting from a failure to perform such duty or not. He also assumed the risk of obvious defects. It is also erroneous because it placed the burden of proof upon the appellant to show that the appellee did know and appreciate the danger. The proof shows that appellee was an employee of mature years and experience. It is not alleged, and not pretended, that the appellant owed him any

duty of instruction or warning. If it was his duty to make the inspection, the risk of injury from failure to perform this duty was one of the ordinary risks which he is presumed to know. C., O. & G. R. Co. v. Thompson, 82 Ark. 11, 100 S. W. 83.

[7] The court erred in modifying appellant's prayer for instruction No. 18, by adding the words in italics, for if the appellee knew that the board was defective, or if the defect was so obvious that a man of ordinary care must have known it, then he assumed the risk, even if it was the duty of the appellant's "passer" to inspect the boards. E. L. Bruce Co. v. Yax, 135 Ark. 480, 199 S. W. 535.

It would unduly extend this opinion to comment further upon the numerous specific assignments of error concerning the rulings of the court in giving and refusing prayers for instructions. It is believed that what we have already said will be a sufficient guide to the lower court in framing its charge on a new trial. We have already pointed out errors in this respect of which the appellant has the right to complain. There were other errors in some of the prayers for instructions, but they were not prejudicial to the appellant. There were 62 assignments of error as grounds of appellant's motion for a new trial, but many of these rulings upon which error is predicated may not arise on another trial, and hence we do not comment upon them.

For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.

(149 Ark. 91)

STEELE et al. v. BUCHANAN et al. (No. 25.) (Supreme Court of Arkansas. May 30, 1921.

Rehearing Denied' July 4, 1921.) Highways148-Restraint of collection of assessment for special road district and order to return tax as paid held erroneous.

In a suit to enjoin collection of assessments for a road improvement district created by Road Laws 1919, vol. 1, p. 530, held that it was error to grant a writ and to order the return of taxes to the landowners who had paid them, in view of provisions of the act; such taxes having been levied in accordance with the intent of the Legislature in the exercise of its authority, with which the courts will not interfere.

Appeal from Nevada Chancery Court; James D. Shaver, Chancellor.

Suit by C. E. Buchanan and others against L. C. Steele and others for an injunction. Decree for complainants, and defendants appeal. Reversed and remanded, with directions.

Rose, Hemingway, Cantrell & Loughbor ough, of Little Rock, amicus curiæ. H. B. McKenzie, of Prescott, for appellants.

J. O. A. Bush, of Prescott, for appellees.

SMITH, J. In 1918 Road Improvement District No. 1 of Nevada county was organized under the provisions of Act 338 of the Acts of 1915, p. 1400, which act was carried into C. & M. Digest as section 5399 et seq.

At the 1919 session of the General Assembly, Act No. 130 (Special Road Acts, vol. 1. p. 330) was passed, creating Road Improvement District No. 2 of Nevada county. The territory embraced in the act of 1919 was divided into five sections, each of which, for all practical purposes, was a separate road district. Sections 1 and 3 of district No. 2 overlap and include all of the territory of district No. 1. The proposed roads in district No. 1 and in sections 1 and 3 of district No. 2 have the same termini and follow the same route, with the exception of four or five miles of section 1 of district No. 2 between the village of Boughton and the city of Prescott and the lateral running from the village of Emmett southeastwardly to the village of Antioch. There are approximately 22,000 acres in district No. 1 and about 80,000 acres in sections 1 and 3 of district No. 2.

This act 130 of the Acts of 1919 is very similar to, and in many respects identical with, a number of other special road acts passed at the 1919 session of the General Assembly. A study of its provisions would appear to indicate that legislative sanction and authority had been given to construct the improvements committed to each of the five subdistricts or sections of road improvement district No. 2. But there appears in the act a section numbered 22, which reads as follows:

"Sec. 22. If the commissioners and the county court find that it is feasible, practicable, and desirable to construct sections 1 and 3 of the roads, as provided for in this act, and shall file the plans therefor with the county clerk, as provided in this act, or shall make the assessment of benefits in said sections one and three, and said assessment of benefits in each of these sections shall be sufficient to complete the improvement in each, and this act and the said assessment of benefits shall not be held invalid, and the commissioners are ready to let the contract for the construction of the improvements in each of sections one and three, they shall file a statement to this effect with the county court, and the county court is thereupon authorized to enter an order terminating the existence of road improvement district number one of Nevada county. Appeals from such order shall be taken within thirty days after its entry, and not thereafter. If the county court does not enter an order terminating the existence of said road improvement district number one, as herein provided, then its existence and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

the proceedings of its commissioners and as-
sessors shall not be affected by this act, but
they may proceed to make the improvements in
their district, under the provisions of the law
under which said road improvement district No.
1 was created.
"It is found and hereby declared that the
surveys, plans and other expenses incurred by
said road improvement district number one pro-
duced results that will inure to the benefit of
sections one and three of the respective roads
and the respective territory, set forth in this
act, and in the event the existence of road im-
provement district number one shall be termi-
nated, as herein provided, the said sections one
and three, created under this act, shall assume
and pay each one-half of such expenses and

other indebtedness."

did assess, the betterments against the lands in sections 1 and 3 of district 2 to result from the improvement of the roads lying therein. In other words, district No. 2 was authorized to proceed, and did proceed, just as is district No. 1 was not existent until the period of time had arrived when the judgment of the county court was to be invoked as to the termination of district No. 1. As to the wisdom of that course we are not concerned, as the manner of procedure was within the control of the Legislature. Betterments were assessed and extended on the tax books as provided by Act 130. Thereupon certain citizens and taxpayers who owned land in

district No. 1 and in sections 1 and 3 of district No. 2 brought this suit against the commissioners of the district and the collector of the county to enjoin the collection of in district No. 1 on account of the preliminany assessment of benefits against the lands ary expenses incurred by sections 1 and 3 of district No. 2. The court held that such assessments were unauthorized and illegal,

them.

We think the court below erred in its ac

tion. It was within the contemplation of the Legislature that the improvement authorized by Act 130 might never be constructed, and section 27 of that act provided against that contingency. It reads as follows:

This section is somewhat ambiguous, and the difference of opinion as to its meaning resulted in the litigation which was terminated January 17, 1921, by the decision of this court in the case of Pittman et al. v. Road Improvement Dist. No. 1, 227 S. W. 4. It was insisted by the commissioners of and that they should be canceled and set district No. 2 that it was mandatory upon aside and the collection thereof be enjoined the county court, under the provisions of sec-and restrained. The court further ordered tion 22 of the act of 1919, to terminate road that certain taxes which had been paid be reimprovement district No. 1 when the com- turned to the landowners who had paid missioners of said district No. 2 filed a statement with the county court in accordance with the requirement of section 22 of said Act 130. We held against that contention, and expressed the opinion that the word "authorize" as there used was directory because the section itself provided that, in the event the county court did not enter an order terminating the existence of said road improvement district No. 1, then its existence and the proceedings by its commissioners and assessors should in no wise be affected by the act. In other words, our holding was that the county court was vested with a discretion to determine whether road district No. 1 should be allowed to proceed with the construction of the improvement which it was organized to construct. The county court upheld district No. 1, and we affirmed the judgment of the circuit court on the appeal from the judgment of that court, which had affirmed the judgment of the county court, in the case of Pittman v. Road Imp. Dist., supra.

It appears that the General Assembly in its wisdom so provided that the judgment and decision of the county court as to whether district No. 1 should be terminated, or should be continued, was not to be invoked until certain preliminary expenses had been incurred by district No. 2. In fact, portions of those expenses were to be incurred in acquiring the information upon which the county court would act, in part, in making up and rendering its judgment. The commissioners of district No. 2, pursuant to the authority conferred by law, proceeded to assess, and

"Section 27. If for any reason the improvements herein authorized and directed shall not time shall be charged against the real property be made, all expenses and costs accrued to that of the district, and the amount necessary to discharge all such indebtedness shall be assessed and apportioned and paid in the manner herein provided. The commissioners shall have the right to pay such reasonable expenses as may have been incurred in preparing this act and securing the information therefor."

We do not have before us the items properly chargeable against the lands in sections 1 and 3 of district No. 2 under the authority of this section 27.

The betterments were assessed against the lands in sections 1 and 3, of district No. 2 and those assessments became final and would be now collected in the manner provided by Act 130 but for the action of the county court in refusing to terminate district No. 1.

Preliminary expenses were incurred by authority of law and for the prospective benefit of all the lands in sections 1 and 3 of district No. 2, and section 27 of Act 130 directs that these expenses be paid, and that they be "paid in the manner herein provided; that is that they be paid just as the cost of the improvement would have been paid, had it been constructed.

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