#### St. Louis-San Francisco Railway Company v. Miller.

Opinion delivered April 11, 1927.

*600 E. T. Miller, E. L. Westbrooke, Jr,, and E. L. West-brooke, for appellant.

Walter L. Pope, and T. W. Campbell, for appellee-.

*601Kirby, J.,

(after staling’ the facts). It is earnestly insisted that the court erred in not directing a verdict for defendant, and that there is not sufficient, testimony to sustain the judgment.

Plaintiff was foreman, of the section gang, and helping and directing the men in the work of replacing the ties. The evidence is undisputed as to the manner in which the injury occurred. Appellee was a vice-principal, ail'd the suit was brought under the Federal Employers’ Liability Act, which is copied in our act 88 of 1911. Appellant relies upon our opinion in St. L. I. M. & S. Ry. Co. v. Cobb, 126 Ark. 225, 190 S. W. 107, and Kansas City & Memphis Ry. Co. v. Huff, 116 Ark, 461, 173 S. W. 419, in its insistence upon plaintiff’s failure to show a right to recover.

In the first case it was said: “Under the statute it matters not whether the injured employee stands in the relation of vice-principal to the employee injuring him, provided the injury is caused through the negligence of such employee. But, if the relation of vice-principal and subordinate exists between the two servants at the time of the injury, and the injury is caused while the subordinate is acting, without negligence, under the orders and directions of his superior, then there would be no negligence for which the company would be liable, because, in such cases, the negligence would be that of the vice-principal himself.”

There was some testimony tending to show that the helpers, fellow-servants of plaintiff, were not acting without negligence under the orders and directions of plaintiff, the vice-principal, when the injury occurred. That they were negligent in failing to give the signal for beginning to move the tie, or waiting for him to give it before doing so, while plaintiff was unprepared for this action, hut jfor which, being unexpectedly made, the injury would not have resulted. The testimony is sufficient to sustain the verdict, and no error was committed in the court’s refusing to direct a verdict for appellant.

*602Wo do not agree with appellant’s contention that instruction No. 1 was tantamount to a directed verdict for plaintiff. The instruction told the .jury to return a verdict for plaintiff only if it found fropa a preponderance of testimony “that it was the duty of the other employees to wait until plaintiff had put his pick into the tie that was to be put under the rails of said track and prepared himself to pull said tie,” and only if the jury further found “that plaintiff’s said helpers failed to wait until plaintiff had prepared himself for pulling said tie, but immediately pulled said tie after plaintiff had stuck his pick into it, and thereby caused plaintiff’s foot to bo injured;” and only on a further finding* by the jury “that plaintiff’s said helpers thereby failed to exercise ordinary care for plaintiff’s safety, and that plaintiff had not assumed the risk.”-

If appellant regarded the instruction as so indefinite as not to furnish a guide to the jury as to what would be negligence on account of it not stating that the failure of plaintiff’s helpers to wait for the signal to move the tie, and moving it without the giving of said signal, it should have pointed this out with a specific objection.

It is next contended that the court erred in giving instruction No. 2, contributory negligence not being-pleaded as a defense. The answer “alleges the fact to be that the plaintiff was, at the time he was injured, foreman of the men working with him, and each of them was under his control, and whatever injuries he received were due-to his own negligence and failure to take any precautions for his own safety.”

It is true this is not a plea of contributory negligence, but the jury could have found that the railroad company was guilty of negligence and, under the allegations that plaintiff’s injuries were due to his own negligence, the question arose necessarily whether his negligence contributed to the injury, and no prejudicial error was committed in giving the instruction a correct declaration of the law on the subject. , St. L. S. W. Ry. Co. v. Rogers, 166 Ark. 389, 286 S. W. 281. Neither was error *603Committed in giving instructions on assumed, risk and comparative negligence. K. C. So. Ry. Co. v. Sparks, 144 Ark. 227, 222 S. W. 724. Nor does the instruction complained of relative to recovery of damages appear to have been erroneous or prejudicial under the circum-si anees of this case. K. C. So. Ry. Co. v. Sparks, supra.

Appellant’s next contention is that the court erred in amending its instruction No. 4 by striking out the last sentence and giving only the first one. The part given told the .jury that, the railroad company was not liable for unavoidable accidents, was only liable for negligence, and that the burden of proving that the company was negligent and that such negligence caused' the injury to plaintiff, rests on the plaintiff, which is, of course, a correct declaration of the law. This precluded-a recovery by the plaintiff unless'the proof showed that the injury was caused by the company’s negligence, and he would have been entitled to recover, even though his own negligence contributed to his injury, under the Federal Employers’ Liability Act, such negligence only causing a diminution of damages.

Another instruction allowed the jury to hold the defendant liable only upon a finding that plaintiff’s helpers were negligent and that the injury or damage was caused'by or resulted from such negligence.

There xvas no testimony showing the accident or occurrence was caused on account of the failure of the plaintiff to have .the work performed in a reasonably safe manner.

The last assignment, that the court erroneously permitted the plaintiff to testify that he'would have given the signal to move the tie if they had -waited a little bit, was not prejudicial, under, the circumstances. The negligence alleged was in the helpers or the other employees suddenly moving the tie without giving warning or waiting for a signal from plaintiff to move it, and the jury found that it was negligence to move it without such signal being given, and a statement that the signal would have been given by plaintiff, had it not been so *604suddenly done, could not have been prejudicial, under the circumstances.

Certainly appellee did not assume the risks of an injury arising from the master’s negligence nor the risk of danger or peril arising from the negligence of a fellow-servant of this railroad corporation. St. L. S. W. Ry Co. v. Smith, 102 Ark. 565, 145 S. W. 218.

We find no prejudicial error in the record, and the judgment is affirmed.