#### Allison v. Chicago, Rock Island & Pacific Railway Company.

Opinion delivered May 19, 1924.

Master and servant — changing condition of place of work — instruction.' — In an action ior injuries to a repairer of a caboose, in which the pleadings and evidence predicated liability solely on the alleged negligence of a fellow-servant, instructions that no recovery could be had if injury resulted from the changing condition of the place of work, were erroneous.

Appeal from Lonoke Circuit Court; George W. Clark, Judge;

reversed.

Harry H. Myers and Reed S Beard, for appellant.

Humphreys, J.

Appellant, an employee, instituted suit against appellee, employer, in the circuit court of Lonoke County, to recover damages for an injury which occurred' through the alleged negligence of a fellow-servant. The substance of the allegation of negligence contained in the complaint is that, while engaged in repairing the roof of a caboose with two fellow-servants, one in the capacity of carpenter and the other a tinner, appellee was told by the tinner, who was working on the opposite side of the cupola, which obstructed his view, that he had finished the work and was ready for him on that side; that, believing that the tinner had left the place in a safe condition, he stepped around the corner of the cupola to pursue the work, and, instead of stepping on the sheeting of the roof, which he expected to, he stepped upon some loose tin, concealed from his view by the cupola., which had been carelessly and negligently left there by the tinner; that the tin gave way and caused him to lose his balance and fall from the top of the caboose about sixteen feet to the ground, seriously and permanently injuring himself.

Appellee filed an answer, denying the allegation of negligence and the extent of the injury, and pleading contributory negligence on the part of appellant.

The cause was submitted to a jury upon the pleadings, testimony introduced by the respective parties, and *334instructions of the court, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

Appellant contends that the court submitted the case to the jury upon the erroneous theory that there could be no recovery if the injury resulted from the changing condition of the place where appellee and his fellow-servants were working. The trial judge seemed to be laboring under that impression, as evidenced by instructions Nos. 4 and 5 which were given. They are as follows:

> “No. 4. The jury are instructed that, where the condition of the man’s place of work is being constantly changed, as in the course of tearing down the place or repairing the- place, the employer does not owe the employee, in such circumstances, any duty to make such a place reasonably safe, and the employee assumes the risk of any injuries which he must suffer as a result of such changing conditions.

> ‘ ‘ No. 5. The jury are instructed that, if the character of work which a person is employed to perform is such that the condition of the working place is being constantly changed, as where it is being torn up, or is undergoing repair, the employee assumes the risk of any injury resulting to him ordinarily incident to such changing conditions, and is not entitled to recover damages -from his employer if he gets hurt on account of some changing condition in his place of work ordinarily incident to its being torn down or being repaired. ’ ’

These instructions' wholly ignore the issue presented by the pleadings and testimony of whether the injury was occasioned through the negligent act or omission of the fellow-servant, over whom appellant had no control, and of which lie had no knowledge, in the exercise of due care for his own safety.

We deem it unnecessary to set out or discuss the other instructions, given or refused, further than to say that the appellee’s duty to furnish appellant a safe place in which to work was not -an issue in the case, and should not have been brought into the case by instructions.

On account of the error indicated the judgment -is reversed, and the cause is remanded for a new trial.