The appellee recovered a judgment against the appellants for damages on account of personal injuries to him, occasioned by the alleged negligence of appellants while engaged in blasting rock near where the appellee was at work.
It is contended that the appellants were not liable to the appellee, because he was upon their premises, and they owed no duty to him in the performance of their work. If it were conceded that their contention as to the law was right, the facts would not justify its application in this case. All the parties were, at the time of the accident, on the premises of a third' person lawfully engaged in the construction of a railway track. If by reason of employment it was the premises of either, it was the premises of each.
The charge as given by the court fairly submitted the cause to the jury upon the two material issues — the negligence of appellants and contributory negligence of appellee.
The appellants’ rejected prayers should not have been given.
ju^_Weig8ht Óf evidence. By their second they requested the court to charge the jUIy Upon the weight of the evidence, which it is by the constitution prohibited from doing. Constitution, sec. 23, art. 7; Keith v. State, 49 Ark., 439.
2. ^ Burden! of Their third prayer requested the court to charge the jury that the appellee was required to prove the negligence of appellants “to a moral certainty to the exclusion of reasonable doubt.’’ This does not correctly state the rule of evidence, which required only that negligence be proved by a preponderance of the evidence.
^ Negligence notice™0'° giv° The negligence of appellee’s employers in failing to notify him that a blast would be fired did not excuse the negligence of appellants in firing the blast which they had reason to believe would endanger his safety, without giving such timely notice thereof as would enable him to escape the danger. They knew his situation and that the blasting endangered his safety. They should have used reasonable care and caution to prevent injury to him. Bizzell v. Booker, 16 Ark., 308.
4. Venue of action. The rock which occasioned the injury was put in motion by the appellants in the Indian Territory; but by the same force its motion was continued and -the injury done in this .State. The cause of action arose here.
5. Elements of damages. The seventh prayer excluded from the computation of damages all elements of impaired physical ability and of pain and suffering unavoidably incurred, if it should be found that the injury was increased for want of proper care and medical attention on the part of appellee. Such is not the law, and the court properly refused to so charge.
There was no error of law in the trial, and the verdict of the jury determines the issues of fact against appellants.
Affirmed.