On Rehearing.
Opinion delivered October'19, 1908.
‘McCueeoci-i, J.It is contended now for the first time in argument in this case that the undisputed evidence shows that the cars which Henrie attempted to couple together were supplied with automatic couplers as required by the terms of the Federal statute, and that his failure to use the coupling appliances from the outside, instead of going between the cars, constituted contributory negligence, and that, for this reason, a peremptory instruction should have been given to the jury to return a verdict for appellant. The rules of this court forbid that the losing party may, on petition for rehearing, take advantage of a point which he failed to bring to the attention of the court on the original hearing.
It is true that the -complaint contains an allegation, which is denied in, the answer, to the effect that the automatic coupler was out of repair, so that it became necessary for Henrie to go between the ■ cars to make the coupling; but that question does not appear to have been pressed in the triaj by either party. There was evidence tending to show that the coupling appliances would not work, and that it was necessary for Henrie t-o go in between the cars to adjust the knuckle, and there was evidence adduced by appellant to the effect that the coupling appliances were found on inspection to be in good condition, but the controlling issue in the trial was whether or not the drawheads were defective, and whether or not the running boards on the ends of the cars came so close together that enough clear space was not left for a man’s body. The result of the trial turned principally on these issues, and it does not appear that a single witness was asked "the direct question whether the automatic coupling appliances were in such condition that it was unnecessary for Henrie t-o go between the cars. No instruction was asked by either party directly submitting that particular question to the jury. •
The argument on the original hearing of the case here turned upon the same questions as to defects in the drawheads and condition of the running boards, and nowhere in appellant’s brief do we find a contention that the undisputed evidence showed the coupling appliances to be in perfect order, so that they could be operated from the outside. Therefore appellant is forbidden by the rules of the court to raise that question here now for the first time.
But, as already stated, we find that there was evidence sufficient to go to the jury and sustain a finding that the appliances could not be operated. The evidence tends to show that efforts to couple the cars both before and immediately after the accident were unsuccessful because the coupling would not work.
Error is assigned and now reargued on the refusal of the court to give the following instruction:
“9. If the jury believe from the evidence that there were two ways to make the coupling, one of which was less dangerous than the other, and deceased chose the most dangerous place or way and was killed, he was guilty of contributory negligence, and plaintiffs cannot recover.”
The contention of counsel with respect to this instruction in their original brief was not overlooked, but the correctness of this instruction was not discussed in the opinion for the reason that we considered the discussion concerning other instructions to be applicable to this one. We still think that the purport of this instruction was the same as refused instructions numbers 7 and 7a, and that it was incorrect and properly refused for the reasons stated in the opinion.
' An instruction to the same effect, substantially, was condemned in Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11. It was stated in the opinion in that case that authorities to the contrary were, to be found, but that we considered them unsound and declined to follow them.
A request for an instruction telling the jury that if safety, appliances were provided on the cars, so that the coupling could have been made from the outside without the necessity of going between the cars, and if the employee disregarded these appliances provided for his safety and heedlessly went between the cars to make the coupling, he would, as a matter of law, be deemed guilty of contributory negligence and also held to have assumed the risk of the increased danger would present a different question for our consideration. The correctness of such an instruction seems to be sustained by the authorities. Morris v. Duluth, S. S. & A. Ry. Co., 108 Fed. 747; Gilbert v. Burlington, C. R. & N. Ry. Co., 123 Fed. 832, s. c. 128 Fed. 529; Suttle v. Choctaw, O. & G. R. Co., 144 Fed. 668; Dawson v. Chicago, R. I. & P. Ry. Co, 114 Fed. 870; Tuttle v. Detroit, etc., Ry. Co., 122 U. S. 189; Union Pac Rd. Co. v. Brady, 161 Fed. 719. But no such instruction was asked in the present case. The instruction now under consideration might 'have been understood by the jury to mean that, even if the automatic coupling appliance on the car was so defective that i-t could not be operated from the outside, yet if Henrie made use of a way to couple the cars which turned out to be more dangerous than some other way which he might have chosen, he was guilty of negligence. They might have understood it to mean that, notwithstanding a defect in the appliance which prevented him from operating it with the lever on the outside, yet if some other way to adjust the knuckle and make the coupling could have been found without going between the cars, he would, as a matter of law, be deemed guilty of negligence. That is not the law. When safety coupling appliances have not been provided, or where those provided have got out of repair, and it becomes necessary to couple cars without them, it is always a question of fact for a jury to determine, under the particular circumstances of each case, whether an employee who went between cars to couple them was guilty of negligence in so doing. It is not correct to say, as a matter of law, after balancing' the chances, that an employee was necessarily guilty of negligence because he selected a method of doing his work which turned out to be the more dangerous way. This, as we have already said, is to make the servant the insurer of his own safety, notwithstanding the fact that the master has failed to discharge his duty.
We have reconsidered all the other assignments of error in the case, and find no cause for changing the result announced in the former opinion. The evidence is not altogether satisfactory, either on the question of appellant’s negligence or contributory negligence of deceased or as to the amount-of damages, but we think it is sufficient to sustain a verdict for damages in the amount which we have allowed to stand, and we do not feel justified in disturbing the verdict further than the remittitur of the amount already ordered.
The petition for rehearing is therefore denied.