J.A. Willison, hereinafter called plaintiff, brought suit against Swansea Lease, Inc., a corporation, hereinafter called defendant, for damages on account of personal injuries alleged to have been sustained by him while working for defendant. The suit was a common-law action of negligence, and the particular act of negligence complained of was set up as follows, to wit: That while plaintiff and three other employees of defendant were engaged in loading an electric motor from a platform on to a truck, by means of sliding it up a plank or skid, one end of which rested on the platform and the other on the truck, "one of the . . . employees used in his hands, for the purpose of pinching up the said motor, a piece of iron, and by the use of the said piece of iron began to slide or pinch the said motor up the said skid, . . . and while so using the said piece of iron said employee . . . carelessly and negligently placed the said piece of iron under the skid, instead of the motor, *Page 583 and slid both the motor and skid upwards, . . . causing the skid to tilt to one side, throwing the motor off of the said skid on to the body and foot of plaintiff . . ."
The case was tried to a jury, which returned a verdict in favor of plaintiff for Two Thousand Dollars ($2,000), on which verdict judgment was rendered, and after a motion for new trial had been made and overruled, defendant appealed. There are some nine (9) assignments of error, which we will discuss as seems advisable.
The first is that the court should have granted defendant's motion to make the complaint more definite and certain, in pointing out the particular acts of negligence complained of. The quotation from the complaint above given shows clearly that it was the placing of the pinch bar under the skid, instead of the motor, and sliding both forward, thereby tilting the skid, so that the motor fell off, on which plaintiff bases his claim of recovery.
The second point is that the demurrers to the complaint should have been sustained, on the ground that no negligent act on the part of defendant was set up therein. This is also answered by the above quotation.
The third and fourth assignments are that the court should have directed a verdict in favor of defendant for several reasons, to wit: Failure to prove the negligence alleged; failure to show defendant's responsibility therefor, if there was any negligence; sole negligence of the plaintiff; and assumption of risk by him. There was sufficient evidence in the record from which the jury could have found, as they evidently did, that the specific act set up in the complaint occurred as alleged, and that plaintiff was in no way negligent, and under our familiar rule we will not disturb this finding. This being true, from the argument in defendant's brief on the other points it *Page 584 would almost seem that counsel had failed to read sections 4 and 5 of article 18 of our Constitution, so we will merely suggest that the "fellow servant" doctrine has been abolished in Arizona since 1912, and assumption of risk is a question of fact for the jury. The court, therefore, properly refused to instruct the jury to find for defendant.
Defendant's requested instruction No. 2 was given elsewhere in substance by the court and it was not error to refuse to repeat it. Arizona Eastern R. Co. v. Cox, 27 Ariz. 469,233 P. 1102.
The requested instruction, to the effect that if an employee selects a dangerous way of performing his duty when there is a safe one apparent to him, and is injured in consequence thereof, he cannot recover, stated as an abstract proposition, and in the absence of qualifying circumstances, is correct. But to justify such an instruction in a particular case it must fairly appear from the evidence: First, that the way used is unreasonably dangerous for a prudent man under all the circumstances; and, second, that a safer way is presently available and not merely theoretically possible. Defendant has failed in his abstract or brief to point out where the second condition was fulfilled, and therefore it was not error to refuse the instruction.
The next error complained of is that plaintiff's wife was called as a witness, and permitted to testify to immaterial matters while holding her baby on her lap, which, according to defendant's theory, prejudiced the jury. No objection whatever was made by defendant at the trial, either to the testimony or the presence of the child, and we do not think counsel may sit by and allow error to be committed without objecting thereto, and take advantage thereof in the appellate court. The amount of the verdict is not such as would indicate passion or prejudice influenced *Page 585 the jury, nor can we assume such passion or prejudice from the mere fact that, without objection, a young mother who had, according to defendant's brief, been sitting by her husband and eighteen months old baby all through the trial, still held that baby on her lap while testifying.
We have considered all the points raised by defendant, and discussed such as in our opinion merited it, and, there being no reversible error, the judgment is affirmed.
McALISTER, C.J., and ROSS, J., concur.