(after stating the facts). In support of the judgment of the court directing a verdict for the defendant, now appellee, it is contended that upon the undisputed facts of the case the plaintiff, now appellant, must be deemed to have accepted the risk of such injury as befell him.-
In a note to the case of Foster v. Chicago, &c., Ry. Co., 127 Iowa 84, 4 Am. & Eng. Ann. Cas., 153, the servant’s assumption of risk, as affected by the master’s promise to repair, is aptly stated as follows: “It is a well settled general rule that the assumption of risk implied from a servant’s knowledge that a tool, instrument, appliance, piece of machinery or piece of work is defective or dangerous is suspended by the piaster’s promise to repair, made in response to the servant’s complaint, so that if the servant is induced by such promise to continue at work he may recover for an injury which he sustains by reason of such defect within a reasonable time after the making -the promise, provided he exercises due care, unless the defect renders the appliance so imminently and obviously dangerous that a reasonably prudent person would decline to use it at all until it was repaired.”
Many decisions from a great number of the States are cited to support the rule. Mr. Thompson, in his work on Negligence, vol. 4, § 4667, expresses the same views; and adds that under such circumstances “he will not, as a matter of law, be put in the position of having accepted the risk, but whether 'he has done so will be a question, for the jury.” See also x Labatt on Master and Servant, § 453.
The latest decision of our court in which the rule has been recognized and applied is the case of St. Louis, I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507, in which the prior decisions of our court on the subject to the same effect as the rule above quoted are cited and approved. In t'he case of Greene v. Minneapolis & St. Louis Ry. Co., 31 Minn. 248, the court said:
“If a servant who has knowledge of defects in the instrumentalities furnished for his use gives notice thereof to his employer, who thereupon promises that they shall he remedied, the servant may recover for an injury caused thereby, at least where the master requested him to continue in the service, and the injury occurred within the time at which the defects were promised to be remedied, and where the instrumentality, although defective, was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use it. Under such circumstances his subsequent use of the defective instrumentality would not necessarily, or as a matter of law, make the servant guilty of contributory negligence, but it would be a question for the jury whether, in continuing its use after he knew of the defect, he was in the exercise of ordinary care.” The opinion was delivered by Mr. Justice Mitchell, and in support of it he cited, among other cases, that of Hough v. Railway Company, 100 U. S. 213. The latter is a leading case on the question, and has been followed in numerous decisions of the State as well as United States courts.
We also call attention to the following cases as sustaining the decision: Indianapolis & St. Rouis Ry. Co. v. Watson, 114 Ind. 20; Erdman v. Illinois Steel Co., 95 Wis. 6; Rothenberger v. Northwestern Consolidated Milling Co., 57 Minn. 461; Patterson v. Pittsburg & Connellsville Rd. Co., 76 Pa. St. 389; McKelvey v. Chesapeake & Ohio Ry. Co., 35 West Va. 514.
Counsel for appellee rely upon the case of Railway Co. v. Kelton, 55 Ark. 483, to sustain the action of the court in directing a verdict for it. In that case the court said:
“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.” In that case the facts were undisputed, and the court said as a matter of law that 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 danger which he knew necessarily attended the use of the old ladder. Later adjudications of our court have said it was a question for the jury, where the servant relies upon the promise of the master to repair, if the appliance is so obviously and imminently dangerous that a reasonably prudent person would decline tó use it until it was repaired. There is an apparent, but no real, conflict in the two classes of decisions. In the Kelton case no special knowledge was required to discern the danger of the continued use of the ladder. It was not an appliance which required the exercise of skill and care. The danger of its continued use could be as well comprehended by one man as another. It was used only by the one -man. The case is different where the appliance is either so complicated that the servant may rely upon the superior knowledge of the master, or where it is a machine or appliance which requires several persons to operate it, and the danger in its continued use in its defective condition depends upon the mutual care toward each other of the servants operating it. This distinction is recognized in the following cases: Gunning System v. Lapointe, 72 N. E. (Ill.) 393 and cases cited; Swift v. O'Neal, 58 N. E. (Ill.) 416; Morden Frog & Crossing Works v. Fries, 81 N. E. (Ill.) 862; Webster Mfg. Co. v. Nesbitt, 68 N. E. (Ill.) 936; Marsh v. Chickering, 101 N. Y. 396.
The application of the following rule differentiates the two classes of cases: “It is only when the facts are undisputed, and are such that reasonable minds may draw but one conclusion from them, that the question of negligence is ever considered one of law for the court.” St. Louis & San Francisco R. Co. v. Summers, 111 S. W. (Tex. Civ. App.) 211.
Where the servant is engaged in ordinary labor, with tools of simple construction, which are used by himself alone, and where the facts are undisputed, reasonable minds must inevitably come to the same conclusion. Hence there is nothing to submit to the jury.
On the other hand, in the case of complicated machinery, or in cases where the danger in the continued use of the machine or instrumentality depends upon the want of due care of the fellow servants engaged in operating it, although the facts are undisputed, reasonable minds might draw different conclusions. In such cases the question of negligence is one for the jury. The case under consideration!is a good illustration.
The jury might have found that the proximate cause of the injury was the negligence of the master in furnishing defective tongs, together with the concurring negligence of the fellow servants, either the flagman in prematurely signalling the engineer to start the machinery in motion, or the engineer in starting it without a signal. That a master is liable for the negligence of a vice principal concurring with that of a fellow servant, we refer to the following cases: Archer-Foster Construction Co. v. Vaughn, 79 Ark. 20; Kansas City, Fort Scott & Memphis Rd. Co. v. Becker, 67 Ark. 1.
The court should also have submitted to the jury under proper instructions the sufficiency of the complaint by the servant' and the promise to repair by the master and the servant’s reliance on this promise, and the reasonableness of the time to repair.
The judgment is therefore reversed, and the cause remanded for a new trial.