Ft. Smith Oil Co. v. Slover

• Decision Date: 18 November 1893
• Citation: 24 S.W. 106
• Parties: FT. SMITH OIL CO. v. SLOVER.
• Court: Arkansas Supreme Court

24 S.W. 106

FT. SMITH OIL CO. v. SLOVER.

Supreme Court of Arkansas.

November 18, 1893.

Appeal from circuit court, Sebastian county; J. Frederic, Special Judge.

Action by Nellie J. Slover against the Ft. Smith Oil Company for personal injuries resulting in the death of said Nellie's husband. From a judgment for plaintiff, defendant appeals. Reversed.

Clendening, Read & Youmans and H. C. Mechem, for appellant. J. B. Turner and Winchester & Bryant, for appellee.

HUGHES, J.

Twenty-eight instructions were given in this case, an equal number for the plaintiff and the defendant. Sixteen asked for by the defendant were refused. There was no evidence upon which to base the fourth instruction, as modified and given by the court, for the plaintiff below. The sixteenth given for the plaintiff, to the effect that the burden of proving negligence on the part of the defendant was on the plaintiff, and of proving contributory negligence on the part of the plaintiff was upon the defendant, accords with the rule settled by the former decisions of this court. Some of the other instructions are abstract, some not explicit, and some obscure, and others are based upon the same theory as that embodied in the second given for the plaintiff, which is the only one we feel called upon to notice at length in this opinion, and which we find is, in our opinion, erroneous. It is as follows: "The servant's implied assumption of risk is confined to the particular work or class of work for which he is employed. There is no implied undertaking of risks. except such as accompany and are part of the contract of hiring between the parties. If the servant, by the express or implied authority of the master, is carried beyond the contract of hiring, he is carried away from his implied undertaking as to risks. If the master orders him to work temporarily in another department of the general business, where the work is of such a different nature and character that it cannot be said to be within the scope of the employment, and where he is associated with a different class of employes, he will not, by obeying such orders, assume the risks incident to that service, or assume the risk of the negligence of such class of employes, but would be entitled to recover if injured by reason of the negligence of such class of employes, provided he himself was not guilty of contributory negligence." While an employer is not an insurer of the lives or persons of his employes, he does impliedly engage that he will not expose them to unnecessary and unreasonable risks to life or serious bodily injury. Negligence is defined to be "the omission to do something which a reasonable, prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable, prudent man would not do, under all the circumstances surrounding and characterizing the particular case."

In the case at bar it was proper, in determining the question of negligence, that the jury should consider the age, intelligence, and extent of judgment of the deceased, and the character of the service demanded of him, whether the dangers of the service were apparent or not, and whether they were such as a man of such judgment, experience, and intelligence as he possessed was capable of understanding and appreciating. In Railroad Co. v. Fort, 17 Wall. 558, when a youth of inexperience was ordered to do a temporary work outside of his usual employment, and was injured in attempting to obey the order, the court said: "If the order had been given to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he must have known that its execution was attended with danger, or, at any rate, if he chose to obey, that he took upon himself the risk incident to the same." Before an employer can be held liable for an injury to an employe while in his employ, the evidence must show in every case that the employer has neglected some duty which he owes to the employe; and the mere fact that the employe was requested by the employer to do a temporary work outside of his ordinary employment is not a violation of a duty which he owes to his employe. If an employe, in obedience to the order of his employer, undertake to do work outside of his usual employment, without objection upon his part, and there is danger incident to performance of the work which is not apparent, or which the employe could not reasonably be expected from lack of knowledge and experience to understand and appreciate, and the employe's inexperience and lack of knowledge is known, or ought to be known, to the employer, then it is the duty of the employer to instruct the employe how to proceed in the performance of the work, and caution him as to the dangers incident thereto; and if the employer fail or neglect to so instruct his employe and warn him of the danger, and the employe is injured by reason of such negligence of the employer, the employer is liable in damages for the injury thus occasioned. An employe assumes all ordinary risks within the scope of his employment, whether ordinary employment or special employment. If Slover, the deceased, was requested by Burke to assist in...