#### Western Arkansas Telephone Company v. Grantham.

4-5902

139 S. W. 2d 49

Opinion delivered April 15, 1940.

Evans & Evans, for appellant.

B. 8. Dunn and Paul X. Williams, for appellee.

McHaney, J.

Appellee brought this action against appellant to recover damages for personal injuries sustained by him while in the employ of appellant. His *412complaint alleged that lie was employed as a lineman and general repair man and received an injury to bis left hand and wrist in setting a 23 foot cedar pole with a crook near tbe large end of tbe pole, that when be elevated the pole for tbe purpose of setting it in tbe bole previously dug by bim, tbe crook in tbe pole caused it to turn which twisted and injured bis band and wrist. Tbe negligence charged was in furnishing bim “such an unsafe telephone pole” and in failing to “furnish additional help” and requiring bim “to set the pole without help.” Appellant’s answer was a general denial and pleas of assumed risk and negligence of appellee. Trial resulted in a verdict and judgment in appellee’s favor for $1,500.

We think tbe court erred in not directing a verdict for appellant at its request at tbe conclusion of tbe evidence for appellee. Only three witnesses testified in tbe case — appellee and two physicians, and tbe evidence is not in dispute. By bis own testimony be shows that be was working alone in Booneville, and that Elsken, tbe district manager for appellant, was in Paris, 20 miles distant. He bad been working for appellant about ten years and bad worked for other telephone companies prior thereto. On March 31, 1938, be found four poles broken off by tbe high wind tbe night before. He called Mr. Elsken on tbe long distance telephone and told bim about it, that be bad to get some new poles, and that be needed help to reset them. Elsken replied: “You beard what Mr. McLane said, (meaning Mr. Lane) we have to cut out this expense and there would be no extra help, and that if a man couldn’t do it, there would be some new faces on tbe job.” He set three of tbe poles that day and in setting the fourth pole on April 1, be twisted bis band and wrist in elevating tbe pole to get it in tbe hole. He got tbe pole from tbe supply on band in Booneville, but had previously gotten bis supply from Paris. No one directed him as to what pole to get either in Booneville or in Paris. The only complaint made of the pole is that, it was crooked at or near tbe large end, a fact which was perfectly open and obvious to bim. He bad brought this pole over from Paris, with *413others, about amonth before. He was setting these poles on his own initiative. If this particular pole were dangerous, he alone knew about it. He didn’t call Elsken at Paris to get an order to set it, but to tell him it must be done as the broken poles were pulling the line down in the highway. He called to request help and received the reply above quoted. He did not tell Elsken he wanted help because the poles were crooked and dangerous, nor that they were too heavy to handle alone. The fact that he put up three of the poles without help and without mishap .shows that he did not need help. If he thought the fourth and last pole was dangerous because it had a crook in it, why did he select that pole to be erected without help?

We think there is no liability for the injury in this case for two reasons. The first is that appellant was guilty of no negligence and the second is that appellee assumed the risk by proceeding to do.the work alone, without help, after having requested help, and it having been refused. The allegations of negligence that appellant furnished him a crooked pole fails, because he, himself, selected the poles at Paris and trucked them to Booneville, and he, himself, picked out the crooked pole from his supply in Booneville and dragged it with his truck to the place of injury. If there were any negligence, it was his, and his alone. But if we assume negligence, then we are confronted with the fact that he assumed the risk by proceeding to do the work without help. St. L. I. M. & S. Ry. Co. v. Middleton, 116 Ark. 284, 171 S. W. 869.

There are many cases on the subject of the duty of the servant to obey all reasonable commands of the master, but- here the servant was not acting in obedience to a command, nor in the presence of a superior or foreman. He was his own boss, doing the job in his own way without direction or supervision of anyone. His injury was the result of his own negligence, or it was an unavoidable accident, for which appellant is not liable.

The judgment is, therefore, reversed, and as the cause appears to have been fully developed, it will be dismissed.