{ "id": 8721455, "name": "American Bauxite Company v. Tudor", "name_abbreviation": "American Bauxite Co. v. Tudor", "decision_date": "1921-05-09", "docket_number": "", "first_page": "500", "last_page": "504", "citations": [ { "type": "official", "cite": "148 Ark. 500" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "105 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347012 ], "opinion_index": -1, "case_paths": [ "/ark/105/0533-01" ] }, { "cite": "93 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546852 ], "opinion_index": -1, "case_paths": [ "/ark/93/0088-01" ] }, { "cite": "93 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546908 ], "opinion_index": -1, "case_paths": [ "/ark/93/0589-01" ] }, { "cite": "96 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541973 ], "opinion_index": -1, "case_paths": [ "/ark/96/0614-01" ] }, { "cite": "88 Ark. 204", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517072 ], "opinion_index": -1, "case_paths": [ "/ark/88/0204-01" ] }, { "cite": "89 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515200 ], "opinion_index": -1, "case_paths": [ "/ark/89/0024-01" ] }, { "cite": "132 Ark. 78", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576649 ], "opinion_index": -1, "case_paths": [ "/ark/132/0078-01" ] }, { "cite": "35 Ark. 602", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873871 ], "pin_cites": [ { "page": "614" } ], "opinion_index": -1, "case_paths": [ "/ark/35/0602-01" ] }, { "cite": "105 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347108 ], "opinion_index": -1, "case_paths": [ "/ark/105/0136-01" ] }, { "cite": "90 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513863 ], "opinion_index": -1, "case_paths": [ "/ark/90/0230-01" ] }, { "cite": "103 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351955 ], "opinion_index": -1, "case_paths": [ "/ark/103/0430-01" ] }, { "cite": "126 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551689 ], "opinion_index": -1, "case_paths": [ "/ark/126/0562-01" ] }, { "cite": "129 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580481 ], "opinion_index": -1, "case_paths": [ "/ark/129/0095-01" ] }, { "cite": "95 Ark. 108", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543632 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/95/0108-01" ] }, { "cite": "93 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546871 ], "opinion_index": -1, "case_paths": [ "/ark/93/0564-01" ] }, { "cite": "138 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566876 ], "opinion_index": -1, "case_paths": [ "/ark/138/0563-01" ] }, { "cite": "141 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1593008 ], "opinion_index": -1, "case_paths": [ "/ark/141/0438-01" ] } ], "analysis": { "cardinality": 448, "char_count": 8140, "ocr_confidence": 0.49, "pagerank": { "raw": 8.841249291230469e-08, "percentile": 0.4981991228060014 }, "sha256": "abbb19312f187ccc1e520ca9d67c2f4e0feea3105029774b9399dd20a236eae8", "simhash": "1:24e335c6489f933c", "word_count": 1439 }, "last_updated": "2023-07-14T16:10:39.547829+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "American Bauxite Company v. Tudor." ], "opinions": [ { "text": "Smith, J.\nAppellee recovered judgment to compensate an injury sustained while engaged in digging and mining ore as an employee of the appellant company.\nThe instructions given at his request permitted a recovery if the jury found that the company had directed him to work in an unsafe place, or if a finding was made that one of his fellow-servants had negligently rolled a boulder in front of him, thereby causing the injury.\nOn behalf of the company, it is insisted that no case was made for the jury; but the court refused to grant-its prayer for a peremptory instruction. The court did, however, give at the company\u2019s request-an instruction, numbered 2, which told the jury to find in its favor unless they found that appellee was injured \u201cby reason of having dodged a boulder that was thrown or pushed in his way,\u201d and it is insisted that error was committed in submitting any other question of negligence.\nWe think the testimony made a case for the jury; but the case was made upon a showing of negligence on the part of a fellow-servant, and no other question should have been submitted, and it was error to have submitted the question of the master\u2019s breach of duty to furnish the servant a reasonably safe place in which to work.\nAccording to appellee, he was injured in the following manner: he was carrying, boulders and was piling them on the railroad track, where cars came and hauled them away, and, while thus employed, an Italian, who was similarly engaged, released a boulder which he was carrying, and, impelled by the force of gravity, the boulder rolled down the side of the mine toward appellee, who, attempting to escape the rolling boulder, became overbalanced and was thrown on his head. Appellee was perfectly familiar with his surroundings. This was a bauxite mine, and it was appellee\u2019s duty, as well as that of the Italian, to excavate the boulders and carry them away so that the earth might thereafter be removed. The only danger incident to the employment arose out of the manner in which the employees themselves discharged their duty, and it was error to submit the question .of the safety of their place of work to the jury. The mine where the injury occurred was only ten feet deep, and the incline, down which the rock rolled, furnished the means of ingress into and egress from the mine.\nOther objections were made to the instructions given, but we think they will pass out of the case upon a trial anew when the case is submitted on the question alone of the fellow-servant\u2019s negligence.\nThe proof on the part of the company tended to show that appellee was not injured in the mine, and that, if he did fall, the fall was not occasioned by any negligence of a fellow-servant, but by his own negligence. However, we have said that question is for the jury.\nIt is insisted that an erroneous instruction was given on the measure of damages, in that the jury was not required to take into account the contributory negligence of appellee. Such, however, is not the case when instructions numbered 4 and 5 are read together, as we think they should be. In instruction numbered 4 the jury was told that appellee\u2019s negligence would not defeat a recovery if the company\u2019s negligence was of a greater degree than his own, in which event they would \u201cdiminish the amount of damages, if any, in proportion to the amount of negligence attributable to the plaintiff, if any.\u201d Instruction numbered 5 dealt with the elements of damage and told the jury the matters they would take into account in computing the damag\u2019d, and this sum was, of course, to he reduced as stated in instruction numbered 4.\nFor the error indicated in submitting the question of negligence in regard to the safety of the place in which appellee was employed the judgment will be reversed and the cause remanded for a new trial.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Mehaffy, Bonham & Mehaffy, for appellant.", "N. A. McDaniel, for appellee." ], "corrections": "", "head_matter": "American Bauxite Company v. Tudor.\nOpinion delivered May 9, 1921.\n1. Master and servant- \u2014 safe place to work \u2014 instruction.\u2014In an action for injuries received in a fall in dodging a rolling boulder., released by a fellow-servant, where the only danger incident to the employment arose out of the manner in which the employees themselves discharged their duty, it was error to submit to the jury the safety of their place of work.\n2. Master and servant \u2014 questions for the jury. \u2014 In an action for injuries from a fall in dodging a rolling boulder released by a fellow-servant, held under the evidence that plaintiff\u2019s negligence and his fellow-servant\u2019s negligence were questions for the jury.\n3. Negligence \u2014 contributory negligence \u2014 instruction. \u2014 An instruction that plaintiff\u2019s negligence would not defeat a recovery if the company\u2019s negligence was of a greater degree than his own, in which event the jury would diminish the amount of damages, if any, in proportion to the amount of negligence attributable to the plaintiff, if any, held proper.\nAppeal from Saline Circuit Court; W. II. Evans, Judge;\nreversed.\nMehaffy, Bonham & Mehaffy, for appellant.\nNo case was made for a jury, and it was error to refuse a peremptory instruction. A servant, even as to dangers created by the acts of the master, assumes the risk of such danger when he is aware of such act of negligence and appreciates the danger. 141 Ark. 438, and many other needless to recite.\nThe court gave conflicting instructions, which is always error. 138 Ark. 563; 76- Id. 224; 83 Id. 61; 99 Id. 377.\nAn instruction which ignores a material issue about which the evidence is conflicting is misleading and prejudicial. 93 Ark. 564. See, also, 95 Ark. 108; 94 Id. 282; 96 Id. 184; 102 Id. 627; 134 Id. 575.\nNo case was made for a jury, and a verdict should have been directed for defendant.\nN. A. McDaniel, for appellee.\n1. The instructions objected to are not set out in appellant\u2019s abstract, and this court will not presume error but will presume that correct instructions were given curing any errors complained of. 129 Ark. 95; 132 Id. 449; 121 Id. 274; 126 Id. 562. Any objections thereto are considered waived. 126 Ark. 562; 104 Id. 375. See, also, 103 Ark. 430; 101 Id. 207.\nAppellant has failed to set out in his abstract two instructions given by the court. None of those given were inherently defective as defined in the law Century Dictionary verb.0. 95 Ark. 108.\nRule 9 requires the instructions to be set out \u2014 those given as well as those refused \u2014 if not, the case will be affirmed. 90 Ark. 230. See, also, Brickwood\u2019s Sackett on Instructions, \u00a7 175.\n2. The court properly refused the peremptory instructions asked by appellant, as there was evidence to establish the issue. 105 Ark. 136; 98 Id. 370; 120 Id. 206; 119 Id. 589.\nThe question of negligence is a mixed question of law and fact and should be submitted to a jury. 35 Ark. 602, 614; 71 Id. 445.\n3. The instructions given for appellee are not in conflict with those given for appellant, but, if so, they are not set out in the abstract. The instructions must be taken as a whole, and if on the whole they are correct it is sufficient. 132 Ark. 78. See, also, 89 Ark. 24; 95 Id. 209; 118 Id. 337.\nThe instructions state the law, and the objections thereto are not well taken. 88 Ark. 204; 70 Id. 441. They were not abstract nor conflicting, nor were they misleading or prejudicial. 96 Ark. 614; 90 Id. 278; 88 Id. 231; 76 Id. 348, 599.\nThe question of assumed risk was submitted to the jury by instruction No. 7 for appellant. It is not practical or possible to state all the law in one instruction, and it is sufficient if the various phases of the law are submitted to the jury in separate instructions. 93 Ark. 589.\nThe evidence was conflicting, and the verdict of the jury settles all questions of fact and is final on appeal, as there is no error in the instructions as to the law.\nUnder our statute appellant is liable, as no warning of danger was given and appellee did not assume the risk. Appellant is liable for the employee\u2019s negligent act. C. & M. Digest, \u00a7 7137. A servant does not assume the risk of negligence of a fellow-servant (93 Ark. 88), unless he realizes the danger and then exposes himself to it. 105 Ark. 533; 98 Id. 227; 108 Id. 578 f 97 Id. 344." }, "file_name": "0500-01", "first_page_order": 524, "last_page_order": 528 }