(after stating the facts). Appellee grounds his right to recover upon the allegation that “it was the duty of Frank Sherrod, the edgerman, and also of John Young, the off-bearer, to throw the lever and deaden the live rollers to prevent injury to plaintiff, and that, knowing the plaintiff’s danger, which was to them apparent, they sent a slab or board moving down the live rollers while plaintiff was engaged in the performance of his duty removing the slab that had become fastened in the chains, and that said board or slab moving down the live rollers struck the plaintiff and crushed his arm and wrist.”
Giving the testimony of appellee and that of the other witnesses the strongest probative force possible in his favor, it tends to show that the edgerman and the off-bearer, fellow-servants of appellee, owed him the duty to exercise ordinary care to prevent injury after his peril was discovered — not before. It was the duty of appellee, according to his testimony, to remove any slab that might be caught under the slab chains. This carried with it the corresponding duty to discover when any slabs were so caught and to exercise ordinary care for his own protection while removing the slabs. This ordinary care for his own protection required that he notify those in charge of the rollers and the edger of the fact that he was going to take out any slab that might be fastened under the slab chains in order that they might use the means which he says they had at hand to protect him. He recognized that this was his duty, for he says, “I gave him (the off-bearer) the signal that I was going over there. I simply motioned that I was going to take out the slab. I knew there was danger in going in there, or I would not have given the signal.”
The undisputed evidence shows that it was the duty of the appellee to discover and to remove slabs that had become fastened under the slab chains. There is no testimony to warrant a finding that this duty devolved upon any one else, nor that it was the duty of any one else to exercise ordinary care to discover when the slabs were fastened under the slab chains, or to discover when appellee was going to proceed to remove them.
Under the allegations of his complaint and the undisputed evidence, the only theory upon which appellee could recover at all is that the edgerman and the off-bearer, after discovering that he was about to remove a slab, and that he was in . a position of danger, failed to exercise ordinary care to protect him from injury. But instructions 1, 2, 5 and 6, given at the request of the plaintiff, allowed recovery regardless of whether or not Sherrod, the edgerman, knew that the plaintiff was in peril at the time he was undertaking to extricate the slab. The instructions, in this particular, were abstract. They should have embodied the idea that if Sherrod, the edgerman, knew that plaintiff was trying to extricate a slab, and knew that he was in a position of peril while so doing, and then negligently failed to keep up the check board or bumper for his protection, appellant would be liable.
It can not be said that the undisputed evidence showed that Johnson, while removing the slab, was in a position of peril, and that the edgerman and off-bearer had knowledge thereof, for the edgerman testified that he “did not see any piece of timber go down the live rollers to where Johnson was while he was trying to get the slab out.” “I saw,” he says, “a slab start down the roller, but the off-bearer stopped the roller.” Again: “I saw a plank or slab start down the roller after Johnson had gone over there, but the off-bearer stopped the roller and stopped that piece. That is the only piece I saw start down while Johnson was there.”
And the off-bearer testified: “If a slab went down there while Johnson was getting a slab out, I didn’t see it. It was not my duty to stop and reverse the rollers when nothing was going down. I didn’t see anything go down the rollers while Johnson was there except a plank, and that went through the edger.”
This testimony tends to show that neither the edgerman nor the off-bearer knew that appellee was in a perilous position while he was removing the slab.
In instructions 11 and 12, given at the request of appellant, the court told the jury, in substance, that if the off-bearer and the edgerman did not see the plaintiff at or just before the time he alleged he was injured, and didn’t know he was in a position in which he might be injured, then he could not recover on account of anything done or omitted by the off-bearer and the edgerman. These instructions were correct, and were tantamount to a specific objection (for the error indicated) to the instructions given above at the instance of appellee.
The instructions given at the instance of the appellee, in the particular mentioned, were erroneous, and were in conflict with those given at the request of appellant. Conflicting instructions should not be given. Southern Anthracite Coal Co. v. Bowen, 98 Ark. 140.
The court erred in giving instruction No. 16, which is as follows:
“You are instructed that the only allegation of negligence in the complaint is that it was the duty of the off-bearer and edgerman to throw the lever and deaden the live rollers, so as to prevent any slab from going down the live rollers and striking the plaintiff while he was removing the slab which had caught under the slab chains, and that the off-bearer and edgerman, knowing that the plaintiff was trying to remove the slab which was caught, failed to deaden the live rollers, and thereby permitted another slab to pass down the live rollers and strike the plaintiff. Unless, therefore, you find from a preponderance of the evidence that the off-bearer and edgerman, or either of them, knew that the plaintiff was in a position to be injured by a slab passing down the live rollers, or in the exercise of ordinary care should have had that knowledge, and that it was the duty of the one having such knowledge to stop the live rollers or keep up the bumper, and he negligently failed to stop them, and thereby permitted a slab to be propelled against the plaintiff, and this was the sole cause of the injury complained of, then your verdict should be for the defendant.”
The appellant objected to the clause “or in the exercise of.ordinary care should have had that knowledge.” The insertion of this language in the instruction was erroneous, for the reason, as already stated, that appellee, in his complaint, based his right to recover upon the allegation that the •off-bearer and the edgerman did have knowledge of plaintiff’s danger, not that “in the exercise of ordinary care they should have had knowledge” of his danger. And, furthermore, the undisputed evidence, as we have seen, showed that no duty devolved upon the off-bearer or the edgerman to exercise ordinary care to discover appellee’s situation while removing the slab. It devolved upon the appellee himself to notify the off-bearer and the edgerman of the peril he was in while removing the slab; and, under the most favorable view of the evidence, the duty of the ofl>:bearer and edgerman to protect him did not begin until they had been apprised of his danger. There was no affirmative duty on their part to exercise care to become aware of such danger.
We find no error in the refusal of the court to grant other prayers of appellant.
It follows from what we have said that the answers to interrogatories 3 and 4 propounded by the court to the jury were conflicting and inconsistent, for if Sherrod, the edger-man, did not know that Johnson was about to be . struck by a slab or board impelled along the live rollers in time to avert it, as the jury found, then he was not negligent in failing to keep the checkboard raised. If Sherrod did not know that Johnson was about to be struck by a slab, it would be impossible for him to be negligent in failing to prevent that which he did not know, and which, as we have stated, it was not his duty to anticipate. There can not be any actionable negligence where there is no duty to be performed by the party charged with the negligence. The inconsistent and conflicting responses to the court’s interrogatories must have been caused by the erroneous and conflicting instructions, which were well calculated to confuse and mislead.
For the errors mentioned the judgment must be reversed, and the cause remanded for a new trial.