Defendant, while operating a stave mill in Stone County, Arkansas, employed plaintiff to work at the equalizer saws. He received personal injuries while in the discharge of his duties, and sues his employer for damages, alleging negligence on the part of his foreman in failing to box the equalizer saws and to keep the hole underneath the saws free from sawdust and blocks.
Defendant in its answer denied negligence, and pleaded contributory negligence on the part of plaintiff, and also assumption by him of the risk. The trial court, after plaintiff had concluded his testimony, gave a peremptory instruction in favor of defendant, and judgment was accordingly entered against plaintiff.
We must therefore, in testing the correctness of the court’s ruling, give the testimony its strongest probative force, to determine whether or not it is legally sufficient to sustain a verdict in plaintiff’s favor. Hlis injury occurred August 231, 1906. Plaintiff’s work, as before stated, was at the equalizer saws, so as to make the stave bolts of equal lengths; and it was also a part of his work to go to the rear of the- table and check or steady the barrel saw and strike the teeth of that saw at certain intervals. He worked under the immediate supervision of Shaver, the foreman, who was the defendant’s vice-principal.
There were egg-shaped holes under the equalizer saws, about two feet long and eighteen inches wide, -to receive the sawdust and blocks from the saws. It was the duty of Arnold, another workman, to keep the holes clear of accumulated sawdust and blocks. When the holes were full, it was- difficult to discern them, as there was also an accumulation of sawdust on the floor, so that the edges of the holes could not be seen.
About two feet to the left of the equalizer saws there was a table or bench on which the bolts were laid after being equalized, and the barrel saw was about ten inches to the left of this table.
The afternoon before the injury occurred the plaintiff complained to Shaver that the saws should be boxed, and that the holes should be cleaned out so as to make the place about the saws safe. Shaver promised to see that this was dome, and asked plaintiff to continue work. The ekact language in which the promise of the foreman was couched is, as testified to by plaintiff, as follows: “Headrick, if you will work on I will box the holes up, and I will see that John Arnold keeps the dust out of the holes. I can’t hardly run without you. If you quit, I will have to stop until I get another hand.” No time was specified when the promise should be complied with. Shaver did not box the saws, and did not have the holes cleaned out as promised.
The next day after the promise was made, plaintiff, in passing between the saws and the table in order to get to the barrel saw to steady it as he was commanded to do, stepped on the edge of the hole, his foot slipped in and was struck by one of the saws. Shaver was standing at the barrel saw and signaled plaintiff to go to that saw and steady it. Plaintiff testified that the holes were full, and that he could not see the edges on account of the sawdust. He also testified that there was not sufficient room to permit him to pass between the -table and the barrel saw, and that it was not practical to -go around the barrel saw so as to -avoid going between the table and the equalizer saws.
It is insisted by counsel for defendant in the first place that the bill of exceptions does not contain all the testimony, and that for this reason the judgment should be affirmed. The only omission suggested is a diagram concerning which plaintiff testified. This w-as not formally introduced in evidence, but it appears to 'have -been produced --by counsel for defendant and, while testifying in response to questions, the plaintiff indicated his explanations by pointing to the diagram and referring to it. The witness, however, testified fully as to the- relative positions of the saws, holes, table, etc., and his testimony is complete and can be readily understood without the aid of the diagram. It would add no additional light on the subject, and does not strengthen the case either way, so far as concerns the legal sufficiency of the evidence. If plaintiff’s testimony, as set forth in the bill of exceptions, is found to be legally sufficient to make out a case which should have gone to the jury, the absence of the diagram does not weaken it nor leave room for a presumption that its presence in the bill of exceptions would establish facts to contradict or overcome his positive statements.
The evidence was legally sufficient to warrant a finding that defendant’s foreman was guilty of negligence in failing to have the holes cleaned out, and that this was the proximate cause of plaintiff’s injury. I.t was the duty of Arnold, a fellow servant, to keep the holes clean; but plaintiff was working in the presence and under the immediate supervision of the foreman, who promised to see that the holes were cleaned out and assumed the duty of doing so. He called on the plaintiff to perform a service which required him to pass along by the hole, and it was then his duty as vice-principal of the master to exercise ordinary care to make the place reasonably safe. Archer-Foster Construction Co. v. Vaughn, 79 Ark. 20.
We can not say as a matter of law that the danger from going between the table and the saws with the hole beneath was so obvious that an ordinarily prudent person would not have undertaken it. It was a question for a jury to determine whether or not it constituted negligence under the cimcumstances for plaintiff to pass between the table and the saws and to place his foot so close to the edge of the hole as to permit it to slip into the hole. Different minds may reasonably reach different, conclusions from these facts, and under suoh circumstances it is the duty of the trial court to submit the question to the jury.
Nor should it be said that because plaintiff went between tire table and the saws when it was possible for him to have chosen a safer route around the table and barrel saw, he was, as a matter of law, guilty of contributory negligence in failing to choose the safe route. The Federal Court of Appeals for this district has announced that rule in several cases. Gilbert v. Burlington, etc., Ry. Co., 128 Fed. 529. That court did so in this case when it was pending there. H. D. Williams Cooperage Co. v. Headrick, 159 Fed. 680. But we have declined to adopt that rule, as we think it makes the employee the absolute insurer of his own safety. Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443. Even though there may be two ways open to' an employee in which to perform his work, one of which turns out to be less dangerous than the other, and he adopts the other way, yet, if that way is not so dangerous that a person of ordinary prudence would not have undertaken 'it, the court should not say that the employee was guilty of negligence because he chose that way which was reasonably safe, but which was not the safer. We think, as said in our former oases, that to adopt that rule would be to make the employee the insurer of his own safety in choosing between two methods of doing his work, either of which might be reasonably safe.
The testimony of plaintiff in the trial below tended to show that, while it was possible for him to go around on the other side of the barrel saw, so as to avoid the narrow path between the equalizer saw and the table where he was injured, yet it was not convenient to do so in a manner to respond promptly to his master’s signal and perform ibis duty expeditiously. The jury should therefore have been allowed to say whether or not he was guilty of negligence.
The plaintiff may not be said to have assumed the risk of the danger where he has complained of a defect and danger and is relying on the express promise of the master to repair the defects, so as to obviate the danger, unless the danger .is so imminent and obvious that no prudent man would continue to work in it. St. Louis, I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507; Marcum v. Three States Lumber Co., 88 Ark. 28; St. Louis, I. M. & S. Ry. Co. v. Holman, 90 Ark. 555.
While the unfulfilled promise of the master is' outstanding — ■ that is to say, during the period in which compliance with the promise may reasonably be expected — the master, and not the servant, is deemed to have contracted to bear the risk of the danger, unless the danger is so obvious that no prudent man would continue to work under the circumstances. 2 Labatt on Master & Servant, § 425.
After a careful consideration of the testimony adduced, we are of the opinion that tire case should have been submitted to the jury under appropriate instructions of law, and that the circuit court erred in giving a peremptory instruction.
Reversed and remanded for new trial.