#### Railway Company v. Kelton.

Decided February 27, 1892.

■Master and servant—Defective appliances—Contributory negligence.

In an action by a house-painter to recover damages for an injury occasioned by a fall from a defective ladder furnished by his employer, he is not entitled to recover if, knowing that the ladder could not be used with any assurance of safety, he continued to use it until the injury occurred, relying upon his employer’s promise to furnish a safe ladder.

APPEAL from Lafayette Circuit Court.

Charles E. Mitchel, Judge.

Charles H. Kelton, a painter in the employ of the St. Louis, Arkansas & Texas Railway Company, brought suit to recover damages for an injury by a fall from a defective ladder.

Plaintiff’s testimony was to the effect that he was injured while painting the wall of a depot house for defendant company; that the ladder which was furnished to him about March I, 1888, was brittle and would not hold nails; that he made complaint between the 5th and 10th of March following to his immediate superior, who promised to furnish him a safe ladder; that he continued to use the defective ladder until, the injury occurred on the 30th of April following.

Defendant’s testimony tended to establish that the ladder was safe, and that plaintiff was injured in some other manner. There was a verdict and judgment for plaintiff for the sum of $7000. Defendant has appealed.

Bunn & Gaughan and Sam H. West for appellant.

1. If appellee and his witnesses are to be believed, he knew the defective condition of the ladder, and, so knowing, used it, and hence assumed the risk. 46 Ark., 368 ; 18 A. & E. R. Cas., 35 ; 31 id., 272; 48 Ark., 333; 100 U. S., 213; IS S. W. Rep., 831.

2. If appellant’s witnesses told the truth, the ladder was *484not defective, and plaintiff was not injured thereby. 39 A. & E. R. Cas., 363.

Scott & Jones for appellee.

1. Remaining in the service after knowledge of the danger, and relying upon a promise of the master to remedy-defects, is not an assumption of the hazard and-risk, unless the danger is so imminent and obvious as to impute negligence. Wood on Master & S. (2d ed.), secs. 360, 378, 380-.

Per Curiam.

If the testimony of the appellee and of his supporting witnesses is true as to the condition of the-ladder (a fall from which, according to his claim, caused his-injury), he knew that it could not be used with any assurance of safety, and he assumed the risk of its use.

.The promise on the part of the employer to furnish a better ladder would not justify the employee in looking to* his employer for compensation for damages which he sustained by wantonly and recklessly encountering the danger which he knew necessarily attended the use of the old ladder.

If the statements of the opposing witnesses are true, the ladder was not defective, and the appellee did not receive his injury by a fall from it.

Upon no theory is the verdict sustained by the evidence»

Reverse the judgment.