650 WOHLFETili V. HENLEY. [192 WOHLFELn V. HENLEY. 4-4289
OPiniOn delivered APril 27, 1936. . • . 1. MASTER ANI) SERVANT.,--In action' by: an employee . 'to recóver darn-'igeg for injuries reCeived' by a fall occnsioned by failure of the employer to furnish safe place 'to work, held-that the. evidence .tending , to , shoW.that the injury occurred while .the employee was engaged• in . rolling a wheelbarrow , , up an inclined runway which wns not braced was sufficient to .thke cinestion of employer's negligence 'to ihe jury.' ' • • • • 2. nuAL. There was •no prejudicial error, in refusing, to instruct at the request .of defendant in an action by an . employee against hia' emPleyer' fOr 'damageS 'alleged to hnve been sustained by reason 'of einpleYer'S . failure te furnish a safe 13lace 'to work that if the injury was due solely to an accident .there . could be no recovery, where the jury was fully and fairly instructed on assumption of riSk. and contributory negligence' 'which necessarily ' excluded if.the injury . waS the resUlt-Of.a casualty which could not' have been reasonably anticipated or . avoided by the ,. exercise of ordi . na r „ y p rudence . : •: Appe'al 'front Saline"Circuit Court; H: B.. ille&d,s, Judge. ; affirmed. • ' • ' • • • MeDariviei,'Mcat'ay -(6 Crow,.thy appe • llant. . Ken:neih C. Coffelt and. Wm.' J. kii-by; • for appellee. T:UTi.,ER, J. In a suit brought by . appellee against hiS •employ j er, the appellant, he recovered $300 as .daniages for .peranal . injitry; and froth the jndgMent awarding the :same, the . present aPpeal is sproseCutea. • The theory,upon which the suit was instituted is that-appellee was..injured by, a fall . which, was occasioned by the failure of . appellant; his employer, to . .furnish hiin, safe place to :work. . 7 . 7 There are two grounds of error . assigned in the motion for a new. trial which are argued in appellant's brief for reversal of , the judgment. The first, :a.nd the one most strongly insisted Upon, is that . the eNidence insufficient to establish the negligence of appellant, and the other is that the court should have, at appellant's request, instructed the jury that, if' the injury was due solely to an accident, its verdict should be for the defendant.
ARRJ WOHLERLD ,V. • HENLE 651. . .,The evidence tending to establish . negligence :in re-speet to furnishing a safe, place iii which•to work is not altogether satisfactory:, ..bnt .when . vieWed in 'the light most . favorable to : appellee. and :the inferences reasonably deducible ;therefrom,.are . • considered i , we think .,there:,is some-substantial . evideneb warranting the submission of that .question. to ,the . ,jriTY.. ,Briefly :. stated, 'the evidence Most, :strongly- tending . to support :appellees contention is , to the effeeti that the.. -1.jury oceurred: to appellee . while he was .engaged in Tolling a. wheelbarrow up ,an inclined plane or Tunway:i . ,He hadi been at; Work on this, Tunway but; a _short tme :before his; injOry, occurred; he had m.a de. no, • inSp éction :Of the :Tunway -or,- the : nature of its construction, Jiut supposed . that :it, had been . constructed .so as.to , renderit ,Safe tb those :who • had•occasion to uSe it.. ThiS runway. began at the:ground and extended gradually upward, ending in , a.• platform about :six 'feet ;above the surface ..of ,the 'ground. ,- It. was„made. of . „pine : boards, two by ten, or twelve inches: and,twelye .or . fourteen feet long. The proper method of constructing this runway was to have: supports upon which the planks rested about seven feet apart so that a support would be at each end of the plank and one in the , nliddle.... As appellee wheeled the barrew upward and was approaching the platform, the plank on which the barrow was being rolled bent downward or. " sagged" under the w . eight o . f the barrow, and when this happened appellee's foot slipped and he fell; 'striking . 'hiS Side near the 'groin with Sufficient ; vio-Jence to,pr * o • d uce • ; an ingnin al '41 e r r i u • a. • was,no sup-nnrf midor :port Vas-. the occasion . of, the..bending :or P .sagging" of the plank'and of theinjury'resillting. It is true that there is e-Odenee , StrOngly`contyadieting the , foregbing 'Statement, and ais , o. , As.tending to show,that, there was no injury, caused to, the:appellant .from the cause assigned by him,' but theSe : questions were 'Tor-the , jury,' and, 'since there 'is some . SubStAntialt : evidenee te Snppert its finding, We Are bOUnd by it: ' ,a . number, of instructions „ given; both . ,at the request of the ap,pellee, and; of, tim .appellant, ,the• court made
.652 [192 it plain to the jury that there could be no recovery unless the injury could be shown to have been occasioned by the negligent failure of the appellant in the construction and maintenance of the runway. The jury was fully and fairly instructed on the question of assumption of risk and contributory negligence. These instructions .necessarily excluded liability if the injury was . the result of a casualty which could not have been reasonably anticipated or avoided by the exercise of ordinary foresight and prudence. The court therefore did not commit prejudicial error in refusing to tell the jury that, there could be no recovery if the injury "was due solely to an accident," for this was necessarily inferred from the dn-structions given, although the court might well have given, with accident properly defined, an instruction to the effect that appellant was not liable if the injury was occasioned . solely by an accident. It follows that the judgment of the court below will be affirmed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.