(after stating the facts). The defendant adduced evidence tending to show that the log deck in question was built like those in common use by other saw mills. Counsel for the defendant insist that, inasmuch as the master is not bound to use the newest and best appliances, he performs his duty when he furnishes those which are in common use and are reasonably safe, and that the former is the test of the latter. There is. an irreconcilable conflict- of opinion upon the question whether or not the master, in furnishing appliances for the servant, has fulfilled his duty in this regard by furnishing those which are ordinarily used in the business. An extended discussion and citation of authority on both sides of the question will be found in the case note to Niko Wiita v. Interstate Iron Company, 103 Minn. 303, 16 L. R. A. (N. S.) 128.
A careful consideration of the question leads us to the conclusion that the contention of the defendant is not sound. It is true that a master is only bound to exercise ordinary care to furnish his servant a safe place in which to work. Holmes v. Bluff City Lumber Co., 97 Ark. 180; Ozan Lumber Co. v. Bryan, 90 Ark. 223.
In the case of Wilcox v. Hebert, 90 Ark. 145, we held: “A master is only held to the exercise of ordinary care, proportionate to the danger to be incurred, in the selection of reasonably safe machinery and appliances, and in keeping them in proper condition, and it is not an insurer of the safety of the appliances furnished, nor bound to supply any particular kind of machinery, nor to use any particular character of safeguard against danger.” But the controlling test of the exercise of reasonable care is not what has been practiced by others in like situation, but what a reasonably prudent person would have ordinarily done in such a situation. A bad custom may have grown up through ignorance or selfishness.
The jury were required to test the character of the defendant’s conduct by what a reasonably prudent person would ordinarily have done in the like circumstances, as disclosed by all of the evidence, including that relating to the conduct and practice of others. What was the custom of others under like conditions and circumstances is evidence of what a reasonably prudent man would ordinarily do, but it is not conclusive evidence of that fact. Professor Wigmore, in discussing this phase of the question, says: that the thing was in fact dangerous, defective, or the reverse, and that its maintenance was or was not negligence in spite of the above evidence. (2) Meanwhile, the substantive laws tell them what the standard of conduct for negligence is; and this standard is a fixed one, independent of the actual conduct of others. To take that conduct as furnishing a sufficient legal standard of negligence would be to abandon the standard set by the substantive law, and would be improper. This conduct of others, then, (1) is receivable as some evidence of the nature of the thing in question, because it indicates what is the influence of the thing on the ordinary person in that situation; but (2) it is not to be taken as fixing a legal standard for the conduct required by law. This distinction is patent enough, but it is sometimes judicially ignored. Such evidence is sometimes improperly excluded on the erroneous supposition that the mere reception of it implies that it is to serve as a legal standard of conduct. The proper method is to receive it, with an express caution that it is merely evidential, and is not to serve as a legal standard.” Wigmore on Evidence, § 461. See also 1 Labatt on Master & Servant, § 50; Chicago Great Western Ry. Co. v. McDonough, 161 Fed. 657, 88 C. C. A. 517; Chicago, M. & St. P. R. Co. v. Moore, 166 Fed. 663, 92 C. C. A. 357, 23 L. R. A. (N. S.) 963.
“The distinction is in itself a simple one: (1) The conduct of others evidences the tendency of the thing in question; and such conduct — e. g., in using brakes on a hill, felt shoes in a powder factory, railings around a machine, or in not using them — is receivable with other evidence showing the tendency of the thing as dangerous, defective, or the reverse. But this is only evidence. The jury may find from other evidence
It is next insisted by counsel for defendant that there was no negligence on its part, and that the court erred in refusing to take the case away from the jury. As we have already seen, it is the duty of the master to exercise ordinary care in seeing that the servant is provided with a reasonably safe place in which to work, and in default thereof he is guilty of negligence. - Where a master furnishes, or causes to be built under his direction and control, a platform, scaffold, staging or like structure for the use of his servant in the prosecution of his work, it is his duty to exercise ordinary care to see that it is reasonably safe for the purpose contemplated. 26 Cyc. 1115. The general rule is that, where the facts are such with respect to the negligence of the parties that reasonable minds might differ with respect thereof, the case should go to the jury.
The alleged defect in the log deck was a structural one. The evidence on the part of the plaintiff shows that in the discharge of his duties he was required at times to go on all parts of the deck, that frequently when the logs were started by him down the deck they would stop rolling on account of the knots in them, pinning them to the floor; that in such cases he was required to go down and take a cant hook and roll them down to the foot of the deck near the saw carriage; that the deck in question had two loose boards, which had cleats on the under side to keep them in place, but which were not nailed down to the sills like the other planks in the floor; that these unfastened planks fitted closely in to the other parts of the flooring; and that on this account, and because of the accumulation of shavings on the deck floor, he was not aware that the planks were not nailed down. On the day he was injured, a lot of logs had accumulated on the upper part of the deck, and failed to roll down to the lower end of it because of some knots in the logs. The plaintiff took his cant hook and rolled one of these logs down the deck next to the saw carriage. He says that on his way back from the west to the east end of the deck he had occasion to walk across these unfastened planks, and that just as he stepped on one of them the sawyer worked the trip, and this caused the log at the lower end of the deck to strike the unfastened plank and make it fly upwards. The plank as it flew upwards struck the mass of logs piled up -above them on the floor of the deck with such violence as to dislodge them, and they rolled down and crushed his foot. The evidence on the part of the defendant shows that it was necessary to construct the log deck with these unfastened planks in order to go down under the deck to adjust the nigger bar, when it became necessary. Evidence was also adduced by it tending to show that this was the usual and customary way to construct log decks. It will be observed that the two planks had cleats nailed on their under side to keep them in place, so that the planks were constructed in the nature of a trap door. At but little cost, hinges or other fastenings could have been put on them so that when a log with a knot on it struck the lower part of the planks they would not fly up. The evidence for the defendant also tends to show that the injury did not happen as testified to by the plaintiff himself, but that the plaintiff himself started the logs to rolling by pulling on them with his cant hook.
It is also insisted by counsel for defendant that the case should have been taken from the jury because the physical facts are opposed to the testimony given on the part of the plaintiff. We can not agree with him in this contention. The plaintiff himself testified that the injury occurred as detailed above. Another witness for the plaintiff testified that he was a log scaler at the defendant’s mill and had seen the unfastened planks fly up by reason of a log with a knot on it striking the lower end thereof. He said this had occurred only a day or two before "the day he testified. The undisputed testimony shows that the unfastened planks extended about five inches over the sill next to the saw carriage, and, according to the testimony of the plaintiff, there was sufficient room for a log with a knot on it to strike the lower end of these unfastened planks and cause them to fly up. The shaft extended in a parallel direction to the lower end of the deck floor. The plaintiff said that a knot could go between this shaft and the end of the unfastened plank; that there was nothing to prevent the knot from striking the plank and kicking the plank up.
Under all the facts and circumstances adduced in evidence, we think both the question of the defendant’s negligence and the plaintiff’s contributory negligence were properly submitted to the jury. As bearing on the question and as illustrative cases, we cite the following: Oak Leaf Mill Co. v. Smith, 98 Ark. 34; Doyle v. Missouri, K. & T. Trust Co., 41 S. W. (Mo. Sup. Ct.) 255; Rice & Bullen Malting Co. v. Paulsen, 51 Ill. App. 123; Burnside v. Peterson, (Col.) 17 L. R. A. (N. S.) 76.
It was contended by counsel for defendant that the leaving of the two loose boards in the log deck floor was not the proximate cause of the accident, but we can not agree with his contention, It is a fundamental rule of law that, to recover damages on account of unintentional negligence of another, it must appear that the injury was the natural and probable consequence thereof, and that it ought to have been foreseen in the light of the attending circumstances. St. Louis, I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402; St. Louis, I. M. & S. Ry. Co. v. Buckner, 89 Ark. 58; Pulaski Gas Light Co. v. McClintock, 97 Ark. 576.
From the evidence it appears that it was the duty of the plaintiff to go at times on all parts of the deck floor. The logs, by reason of having knots on them, frequently lodged on the deck floor, and the plaintiff was required to pry them apart and roll them down next to the saw carriage. According to the testimony of the plaintiff, it would sometimes happen that when the sawyer worked the trip on a log with a knot on it the knot would strike one of these loose boards and cause the upper end to fly up. That the end which flew up might strike logs which had lodged just above it and cause them to roll down was an occurrence which might reasonably have been anticipated and regarded as likely to happen.
Inasmuch as the plaintiff’s duty required him to be on all parts of the log deck, and as, according to his testimony, he had no notice and could not be charged with notice that the planks were not nailed down to the floor, the injurious consequences of such an accident as did happen might have been avoided if the defendant had nailed the unfastened planks to the floor or had warned the plaintiff that they were not nailed down. When the situation of the plaintiff with reference to his work is considered, we are of the opinion that a man of ordinary experience and sagacity could foresee that the result which did happen might ensue.
Little need be said on the question of the assumption of risk. The alleged defect was a structural one, necessarily known to the master. A servant is bound only to see patent defects, and he does not assume the risks arising from latent defects or dangers in the machinery, appliances or place furnished for his use by the master. Archer-Foster Construction Co. v. Vaughan, 79 Ark. 20. As we have already seen, the deck floor was nailed down, except the two short planks, and, according to the testimony of the plaintiffs, these planks fitted up closely to the other part of the deck floor, and the whole floor was habitually covered with bark and trash, so that the fact of the two planks not being nailed down was not apparent. Therefore, the risk was not an obvious one, and for that reason was not one assumed by the plaintiff as an incident to his employment, and the question of assumed risk was properly submitted to the jury.
It is next insisted by counsel for defendant that the court erred in giving the following instruction to the jury:
. “The court instructs the jury that it was the duty of the plaintiff, in the performance of his duties of employment, to exercise ordinary care for his own safety, and it was also the duty of defendant company to exercise ordinary care in furnishing plaintiff a reasonably safe deck floor on which to perform his duties and work. If, in the construction of said deck floor, defendant left unfastened planks so fitted up against the ends of other planks as not to be noticeable; and if you believe this was negligence, and further believe such negligence caused plaintiff’s injuries to his foot and ankle, as charged in the complaint, then, unless the plaintiff was guilty of negligence, causing or contributing to his own injury', or assumed the risk of injury, he is entitled to recover in this case.”
Counsel for the defendant insists that the instruction leaves out of consideration entirely the evidence in the case, and in fact tells the jury to find for the plaintiff if they believe that defendant was negligent in the construction of its log deck, regardless of the testimony in the case. We do not think the instruction is susceptible of that construction. The court in-another instruction had* told the jury what the relative duty of the plaintiff and defendant to each other was, and had expressly told them that their finding of negligence or not must be based upon the evidence. The court explained to the jury what constituted negligence on the part of the defendant, and manifestly by the language used in this instruction did not intend to tell the jury it might set up an arbitrary standard of negligence of its own, but, on the contrary, meant to tell the jury that negligence on- the part of the defendant must be found by them from the evidence introduced in the case, under the law as given them by the court.
Finally, it is contended by counsel for defendant that the verdict is excessive. The jury returned- a verdict for the plaintiff in the sum of fifteen hundred dollars. The plaintiff was confined to his room for one month. He testified that his ankle was still stiff, and that he could only walk with difficulty. Other evidence was introduced by him tending to show that his injury was permanent. The plaintiff testified that he suffered great pain from the injuries, and that his foot pained him at the time of the trial, which was nearly four months after the injuries were received by him. Therefore we do not think the verdict is excessive. The judgment will be affirmed.
Kirby, J., dissents.