(after stating the facts). It is contended that the court erred in giving said instruction No. 1, which it is claimed in effect directs a verdict for plaintiff if her intestate was working for the defendant unless he was guilty of contributory negligence, and disregards the defense of assumed risk on his part. Upon the other hand, it is contended by appellee that the jury were properly instructed, in separate instructions requested by defendant, both as to the law of assumed risk and contributory negligence, and that no prejudice could have resulted to plaintiff on account of giving said instruction No. 1, even if same was erroneous, and that it lost its right to object to said instruction for the failure to' include proper mention of the defense of assumed risk by not making a specific objection thereto on that account at the time.
There is a distinction between the defense of assumed risk and contributory negligence, although both may be available in the same case. The one of contributory negligence, negligence on the part of the defendant being proved or admitted, denies the right of the plaintiff to recover damages for the injury which would not have occurred but for his own negligence contributing thereto; while the other arises out of the contract of employment, and does not impliedly even admit negligence on the part of defendant and attempts to defeat the right of action therefor, as the defense of contributory negligence does, for, if the injury was the result of the risk assumed by the servant, no right of action arises in his favor at all, since the master owed no duty to protect him against dangers the risk of which he assumed as part of !his contract of service.
A servant would not be guilty of contributory negligence in working at or with a defective appliance known to'him to be defective, unless the danger was so obvious that no man of ordinary prudence would incur the risk under similar circumstances; while if he voluntarily worked with such appliance, realizing its dangerous condition, he would assume the risk thereof, and, having done this of his own accord, could not ask the master to compensate him for the resulting injury, even though he was not negligent in the operation of the appliance. Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367.
Said instruction No. 1 told the jury that the master was negligent in furnishing the defective log loader, and if the injury was due solely or in part to the fact that it was defective the defendant was guilty of negligence; and directed them to find for the plaintiff unless the deceased was guilty of contributory negligence. Being drawn in this way, it not only excluded the defense of assumed risk, which was sufficiently alleged in the answer, but was in conflict with the instructions given on defendant’s part relative to assumed risk, and erroneous and prejudicial. Being in conflict, the instructions separately given could not be read together and present the law as a harmonious whole, as said in St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61; and the jury were left without proper guidance as to which instructions they should follow. St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 225.
Since the case must be tried again, it is proper to say that the instruction relating -to the measure of damages was incorrect under the pleadings, the loss of parental care and training of the children not having been alleged as an element of damage.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial.
Mr. Justice Hart dissents.