(after stating the facts). The court did not err in refusing prayers for instructions numbered 10 and 11. There was no evidence to show that the appellant had promulgated a rule for the safety of its servants as to the manner of unfastening the toggle chains. Even if a rule had been promulgated upon the subject, the prayers for instructions were defective because they did not leave it to the jury to determine whether or not the appellee had knowledge of such a rule, and, under the evidence, this was a disputed question of fact, as appellee himself testified that he was never directed by any one not to undertake to unload the cars while on the incline when they were fastened in an unusual manner; that he never knew of any instructions to any of the servants to that effect. Contributory negligence, under the evidence, was a question for the jury..
A majority of the judges are of the opinion that the undisputed evidence shows that appellee, in undertaking to unfasten the chains around the car load of logs in the manner indicated by his testimony, assumed the risk of the danger in so doing. The promise of the master to assume the risk refers to the particular car of logs that was unloaded by appellee three or four days before his injury, and not to the manner of the fastening of the logs on the particular car by which appellee was injured. Appellee had no right, according to his own testimony, to rely upon any promise of the master to repair the fastenings on any future car, for the master specifically limited his assumption of the risk to the car that appellee was unloading when he called the master’s attention, to its defective condition. If the master had said generally for the servant to go ahead and he would stop it, the case would have been différent; but the master only promised with reference to “that one,” i. e., the particular car that the appellee was then unloading.
The appellee himself testifies that he saw, four or five minutes before he was injured, that the car load of logs that injured him was fastened in the same manner as the car to which he had called attention three or four days before, and that the master had not corrected that manner of fastening the logs; that “he hadn’t lived up to his promise. ” This testimony of appellee shows that he knew that the promise of the master to repair had come to an end and had not been fulfilled, and that he, appellee, was no longer relying upon same. Since the master only told appellee “to go ahead with reference to that one, ” appellee, by undertaking to unfasten another and future car when he saw it to be dangerous to do so, assumed the risk.
The verdict is without evidence to sustain it. The judgment is therefore reversed, and the cause is remanded for a new trial.
Kirby, J., concurs in the judgment; Frauenthal, J., dissents.