(after stating the facts.) The uncontroverted evidence shows that, if the crane operator had been notified of the presence of Vernon and Baker on the crane tracks before Baker received his fatal injuries, the same could and would have been avoided.
The uncontroverted evidence shows that it was not the duty of the crane operator to observe the crane tracks overhead for the purpose of discovering any one who might be engaged at work there without first being notified that such persons would be employed in work that required their presence on the crane tracks. The undisputed evidence shows that the only duty of the crane operator was to operate the crane so as to avoid injury to those working on the floor of the shop, unless especially notified that the crane tracks were to be used by those doing work overhead. If necessity demanded that the tracks of the crane be occupied by the employees in the performance of the particular work, then it was the duty of the appellant, through its foreman Waits, or of the employees engaged in the particular work, as the case might be, to notify the crane operator of that fact, so that he might be on the lookout for them and thereby avoid injury to them. On other occasions it became necessary for employees of appellant to use the crane tracks for the purpose of washing the windows. At these times the crane operator was notified of their presence so that he might avoid injury to them in the operation of the crane. Witness Thomas, the crane operator, testified concerning this that: “Unless I was notified that some one was up at one of these windows, I wouldn’t look for any one at these windows when I would be operating the crane. There was a negro once that went up there to wash the windows off. He notified me that he was up there. He was washing from the inside. Unless I had that notice I wouldn’t look up there for any one.” The testimony shows that, when the crane tracks were to be used for the purpose of washing the windows, as they were annually, the employee whose duty it was to perform that work, went up on the inside of the building by way of the stairway leading to the operator’s cage, got on the beam of the crane, and thence moved over to the wall, and was carried by the crane operator from window to window on the crane. In the performance of this work, therefore, the crane operator necessarily had notice of the use of the crane tracks for the purpose of doing the overhead work.
The uncontradicted testimony in the case, therefore, shows that the proximate cause of the death of Baker was the absence of notice to the crane operator that Baker was going to occupy the crane tracks while engaged in the work of repairing the window. If the appellant through its foreman, Waits, had or should have had notice that it was necessary to occupy these tracks in order to fix the window, then it was its duty to have notified the crane operator of that fact when Vernon and Baker were sent to perform that work. But if, on the other hand, Waits did not know, and if it was not his duty to know, that it was necessary for the workmen to stand on the crane tracks while repairing the window, then it was not his duty to have notified the crane operator of the probable presence of Vernon and Baker on the crane tracks at the time Baker received his fatal injuries. The effect of the uncontradicted evidence is that the duty of notifying the crane operator of their presence on the crane tracks on the day of the injury to Baker devolved on Vernon and Baker. While there is evidence to show that Vernon and Baker had special instructions to do this work, that the window was pointed out to them with directions to fix the same, and that they were instructed to do the work mechanically, and while there was evidence to the effect that the only way in which the work could be done mechanically was to stand on the crane tracks and take the window out in the way that witness Vernon describes that it was done, yet the uncontroverted evidence shows that Waits did not know that to do the work mechanically required Vernon and Baker to occupy the crane tracks. In other words, while the instructions to Vernon and Baker were to do their work generally, and this work in particular, mechanically, it was left to them to determine what was necessary to be done in order to perform the work in a mechanical manner. There is no evidence in the record to justify the inference that Waits knew that it was necessary, or that it would be necessary, for Vernon and Baker to occupy the crane tracks in order to repair the window. While there is evidence that Waits knew of the defect in the window, and that the defect could have been discovered from the ground, there is no evidence in the whole record to warrant the conclusion that Waits knew, or should have known, that, in order to repair the defect, it might become necessary for Vernon and Baker to occupy the crane tracks. The instructions to Vernon and Baker were to fix the window and to fix it mechanically. They, under the uncontradicted evidence, were the sole judges of what was necessary to be done in order to repair the window in a mechanical way. The uncontradicted evidence shows that Vernon and Baker themselves did not know that it was necessary to occupy the crane tracks in order to repair this window in a mechanical way until they had gone up from the outside -and examined the same. It was only after investigation that they themselves determined that it was necessary to go on the inside and stand on the crane tracks while doing the work. This duty, under the uncontroverted evidence, was delegated to them, and when they ascertained that it was necessary to occupy the crane tracks, which placed them in a place of obvious danger while performing their work, they should have notified their foreman, Waits, of that fact, so that he might see that the necessary notice was communicated to the crane operator. The appellant undoubtedly would have been liable had Waits been notified by Vernon and Baker that, in repairing the window, it would be necessary for them to stand on the crane tracks. Appellant would have been liable had the crane operator been notified directly by Vernon and Baker of that fact. But it was not the duty of Waits to have so notified the crane operator in the absence of notice to him from Vernon and Baker, because, under his instructions to Vernon and Baker, it was their duty to ascertain what was necessary to be done in order to repair the window. While there is evidence to show that Waits instructed Vernon and Baker to fix this window, there is no evidence to warrant the conclusion that it was his duty to tell them how to do it. On the contrary, the uncontroverted evidence shows that it was left to them to determine how the window was to be repaired. Vernon testified: “He didn’t give me any instructions as to where to stand or where not to stand. My judgment was that, in order to do it in a mechanical way, it was necessary to take the window out.” Certainly, Waits, the foreman of Baker, was not chargeable with knowledge of the manner in which the window should be repaired, and of the place where it was necessary for Vernon and Baker to stand in order to do the work, in the absence of notice from them of these facts, when -the very duty of obtaining that knowledge and of communicating the same to Waits was imposed upon them.
The case comes within the rule announced by this court in Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, where we said: “If appellant deputed to Thrasher the duty of making the wire rope secure, and he neglected to perform this duty, he assumed the risk of injury from his negligence in failing to discharge the duty imposed on him, and the master is not liable to him for the injury resulting. ” See cases cited.
In the case of American Tin Plate Co. v. Smith, 143 C. C. A. 286, cited by appellee (a crane case), in which the appellant was held liable to appellee, the appellant directed the appellee to engage in the work of fastening certain cleats for the hanging of electric wires to a certain tall pillar in appellant’s mill. The appellee was directed to do the particular work of putting on the cleats in a particular way-which placed him in a place of danger that appellant knew to be dangerous at the time it directed him to do the work. Appellant knew at the time precisely how the work should be done, and did not leave it to appellant’s judgment to ascertain how it should be done. The facts of that case are entirely different from this.
In the case of McMenamy v. Iron & Steel Co., 144 Mo. App. 707, another case cited, the deceased was killed on Sunday, a day that was used by the defendant as repair day, at which time the machinery, furnaces and. appliances were gone over and all necessary repairs made. During the week the cranes were in constant operation, and none of the men were upon the tracks, but on Sunday the cranes were only operated as occasion should require, and men were sent up on these tracks to make whatever repairs should be needed. On the Sunday in question deceased and fellow workmen were repairing crane A over the middle room. The south end of this crane was a little west of and very near one of the posts between the south room and the middle room — so close that a man could not pass between the comer of the crane and the post. These men were at work replacing a wheel at the south end of crane A. Deceased had been sent below, and, on his return, climbed up the west side of the post near which they were working, and as he was passing around this post on the south side to get to his place to work he was caught by the north end of the crane over the south room called crane B, and crushed to death. None of the cranes were equipped with a bell, gong or other device to give a warning of their approach nor any means used to warn workmen of the movement or approach of the cranes. The Supreme Court of Missouri, in part, said:
“It will not do to say that this was an exceptional case, and one that could not be reasonably anticipated on the part of defendant, for the evidence shows that Sunday was, generally speaking, repair day, and whenever any of the cranes or the track or wires used by the electrical department should need repairing, it would be necessary for men to be upon this track, twenty-five feet from the floor, with little or no chance to avoid danger, should it appear suddenly, and at this particular time there were workmen on crane B who were notified before it moved. The employer should also have known that there were other workmen upon crane A, and the same regard for the safety of its employees which induced it to warn workmen upon crane B before moving it would have suggested that it warn workmen upon crane A working near the rail of crane B who were liable to be required to pass up and down, climbing the post just as deceased did at that time. ”
The facts of that case clearly differentiate it from this case. There the presence of the workmen at the particular place where deceased was injured on Sunday was to be anticipated. He was doing a particular work at a particular time and in a special manner which appellant knew or should have known. The work was being done in the usual way. The doctrine making it the duty of the master to exercise ordinary care to provide a safe place for his employees to work and to protect them while engaged in their work, of course, applies in a case of that kind. But here, as we have seen, the uncontroverted evidence made it the duty of Baker to exercise ordinary care to make his own place and manner of work safe, which he could have easily done by notifying his foreman or the crane operator of the time and manner in which he was performing his work. Under his. contract of employment the manner of performing the work assigned to him was left to his judgment and discretion. If, by reason of the method he adopted for doing the work, the same became dangerous, and it was necessary for him to have protection from the master, it was his duty to have notified the master of that fact. He assumed the risk of his failure to perform that duty, and also was guilty of negligence which contributed to his death. To use the language of the court in McCafferty v. Maine Cent. R. Co., 76 Atl. 866, we feel compelled to say “that the distressing injury of the plaintiff was so clearly the result of his own negligence that the verdict of the jury ought not to be allowed to stand. Their conclusion was manifestly wrong. ”
The judgment is therefore reversed, and the cause is remanded for new trial.
Hart, J., dissents.