(after stating the facts). The court gave the following instruction at the request of the plaintiff, which was objected to by the defendant.
“No. 2. You are instructed'that at the time of receiving the injury complained of, the defendant railway company owed to the plaintiff the duty of using ordinary care and diligence in providing for the safety of the plaintiff and his foreman a suitable and safe hammer for the purpose of doing the work in which they were engaged. The plaintiff while doing the work in which he was engaged did not assume the risk of any dangers from the use of said hammer, if furnished by the defendant to the plaintiff for his use in the work in which he was engaged, which arose from the negligence of the defendant unless he was aware of the negligence of the defendant in providing the hammer then being used and appreciated the dangers arising therefrom. If the plaintiff had no knowledge of the defective condition of the hammer, then he had a right to rely upon the assumption that the defendant had performed the duty devolving upon it so as not to expose him to extraordinary danger. ’ ’
The court also gave the following instruction, among others, at the request of the defendant:
“No. 7. The plaintiff is presumed to know of such defects in the hammer as were plainly to be seen by ordinary observation, and you are instructed that if the injury to plaintiff was caused by a defect in the hammer which could have been discovered by ordinary observation, he can not recover in this case.”
It will be observed that in instruction No. 2, given at the request of the plaintiff, the court told the jury that the plaintiff “did not assume the risk of any danger from the use of said hammer which arose from the negligence of the defendant unless he was aware of the negligence of the defendant in providing the hammer and appreciated the dangers arising therefrom. ’ ’ Counsel for the defendant say that they insisted that this instruction should be modified so as to state “or by the exercise of ordinary care on his part could have known, ’' etc., and “by the exercise of ordinary care would have appreciated the dangers arising therefrom.” The court did not err in refusing to modify the instruction as requested by counsel for tbe defendant; for the practical effect of the modification would have been to tell the jury that the plaintiff should have examined the hammer for. defects in it before he handed it to Blackman, the car repairer, for use; and this he was not required to do. In the ciase of Little Rock, M. R. & T. Ry. Co. v. Leverett, Admr., 48 Ark. 333, the court said:
“A servant is not required to inspect the appliances of the business in which he is employed, to see whether or not there are latent defects that render their use more than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that he might have known of defects, or that he had the means and opportunity of knowing of them, will not preclude him from a recovery unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them. He is not bound to make an examination to find defects. There is no such legal obligation imposed upon him. That is the duty of the master. The servant is not bound to search for dangers, except those risks that are patent to ordinary observation ; he has a right to rely upon the judgment and discretion of his master, and that he will- fully perform his duty towards him.” (Citing'cases.)
In the case of Choctaw, Oklahoma & Gulf Railroad Company v. Jones, 77 Ark. 367, the court said:
' “In the application of the doctrine of assumption of risks a distinction must be also made between those cases where the injury is due to one of the ordinary risks of the service, and where it is due to some altered condition of the service, caused by the negligence of the master. The servant is presumed to know the ordinary risks. It is his duty to inform himself of them; and if he negligently fails to do so, he will still be held to have assuméd them. The decision in the recent case of Grayson-McLeod Company v. Carter, 76 Ark. 69, rests on that ground as do many other cases found in the reports. But the servant is: not presumed to know of risks and dangers caused by the negligence of the master, after he enters the service, which changes the condition of the service. If he is injured by such negligence, he can not be. said to have assumed the risk, in the absence of knowledge on his part that there was such a danger; for, as we. have before stated, the doctrine of assumed risk rests on contráct, but if the injury was caused in part by his own negligence, he may be guilty of contributory negligence.. On the other hand, if he realizes the danger, and still elects to go ahead and expose himself to it, then, although he acts with the greatest care, he may, if injured, be held to have assumed the risk.” (Citing cases.)
Again, in the case of St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424, the court said:
“The contention of learned counsel is that the above, quoted instruction given at the instance of the plaintiff is erroneous, because it ignores the question of assumed risk. This instruction was predicated on the theory of negligence on the part of defendant in leaving the car, door open so as to expose the switchman to danger. His right of recovery was made to depend entirely upon such negligence on the part of the defendant and the exercise of due care on his own part. He did not assume the risk of danger created by the negligent, act of the employer unless he was aware of the danger and appreciated it. The fact that he could, by the exercise of ordinary care, have discovered and avoided the danger did not constitute an assumption of the risk where it arose by reason of negligence of the master, though he might have been guilty of contributory negligence, which would have prevented a recovery. Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367. In this respect the instruction given at the instance of the defendant was too favorable to it for the jury were therein told, in effect, that, notwithstanding the negligence of the defendant, if the plaintiff knew, or by the exercise of ordinary care and diligence could have known, of the condition of the car, how it was loaded and whether the door was open or not,’ then he-is deemed to have assumed the risk of the danger. This is not correct, as already stated.”
Counsel for the defendant also contend that the court erred in refusing certain instructions requested by them. We need not set out the instructions; for they are open to the same vices as the modification to instruction numbered 2, requested by them, and in the application of the principles above announced, the court did not err in refusing them to the jury.
It is next insisted by counsel that the court erred in not directing a verdict for the defendant, but we are' of the opinion that it was a question for the jury whether or not plaintiff assumed the risk of the defective condition of the hammer. The undisputed evidence shows that the hammer had an imperfect striking face and was in a defective condition, when considered with reference to the uses for which it was intended. Blackman, the car repairer, who struck the plaintiff, testified that he was accustomed to handling a sledge hammer and that he struck the turnbuckle properly as he intended to strike it; that if it had been a safe hammer, it would not have slipped and struck the plaintiff. That the hammer was caused to glance and strike the plaintiff because of the defective condition of its face. Hence, the jury was justified in finding from the evidence that the face of the hammer was defective and that its defective condition was the efficient cause of the injury to the plaintiff. Neither can we say, as a question of law, that under all the facts and circumstances adduced in evidence that an unskilled laborer of ordinary intelligence should have known that the hammer was defective and should have known and appreciated the dangers that he was exposed to by reason thereof. There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this-condition, we do not undertake to say what state of facts the- rule of liability should embrace and what state of facts it should not. We deem it sufficient to say that, while the question of liability of the defendant in the case at bar is an exceedingly close one, yet, under all the circumstances adduced in evidence it was a question of fact for the jury and not one of law for the court. This is not a case where the servant was permitted to make his own selection of tools to be used by himself alone. On the other hand, a number of servants were engaged in the repair work in the yards at El Dorado. The tools were kept in a tool house and were furnished to the employees by a tool-keeper under the directions of the master. The tool house had been burned down some time prior to the injury to the plaintiff and there was a scarcity of tools, particularly of sledge hammers. Pending the arrival of the new supply the foreman had directed the car repairers when in need of tools not supplied to them to borrow them from the car repairer next to him. Plaintiff was assistant or helper ot Blackman, a car. repairer. They had been told to finish the car on which they were working by 12 o’clock, if possible. Blackman, being unable to loosen the turnbuckle on which they were working by pounding on it with an ordinary hammer, directed plaintiff to bring him a sledge hammer. Plaintiff went and got one and handed it to Black-man. They at once commenced working on the turnbuckle in the usual way to loosen it. The plaintiff was prizing towards himself with a lever and Blackman was opposite him, striking the turnbuckle with the hammer. After he had struck the turnbuckle three or four times it slipped and struck the plaintiff below the knee, causing the injury on account of which this suit was brought. Blackman says that he hit the turnbuckle where he intended to hit it and that the hammer glanced and struck the plaintiff because of the defective condition of its face. These are facts the jury were warranted in finding from the evidence. There ivas no duty imposed upon either plaintiff or Blackman to search for defects in the hammer. It can not be said, as a question of law, that the defect in the face of the hammer was so open and obvious that they could have seen the defect by a glance or by such casual observation as it would be natural for plaintiff to have made while carrying the hammer to Black-man or by Blackman to have made after receiving it.
It is next insisted that the verdict is excessive. Counsel cite the case of Aluminum Company of North America v. Ramsey, 89 Ark. 522, where this court reduced a verdict from twenty thousand dollars to twelve thousand, where plaintiff’s leg was amputated; but we do not think that case is authority for a reduction of the verdict here. Each ease must largely depend upon its own circumstances. In the Ramsey case the plaintiff’s leg was amputated at once and there was no prolonged and unusual suffering. Here an effort Avas made to save the leg of plaintiff. A period of eleven months elapsed from the time of his injury to the day of the trial. During all this time the plaintiff suffered great pain and was confined to his bed for most of the time. He has been unable to do any Avork since he received the injury and constantly requires the attendance of a physician. One of the physicians who examined him several months after his injury was received says that he was under the influence of morphine. • Presumably this was taken to alleviate his pain. At least the jury had a right to infer that fact. All of the physicians who examined him agree that if the bone is entirely involved his leg mil yet have to be amputated. Doctor Hilton, the physician who has attended the plaintiff longest since his injury and who has charge of the case, expressed the opinion that the knee joint was involved and that, if such was the case, amputation would be necessary. It is true that in one part of his testimony he says that he does not know this to be a fact, but when his entire testimony is considered the jury were warranted in finding that, although Doctor Hilton was treating plaintiff Avith the view to saving his leg, yet his opinion was that amputation of the leg above the knee joint would be necessary. And the jury Avere Avarranted in finding from his testimony when considered as a whole that this opinion Avas not based on conjecture or supposition merely but was based on previous examinations of the leg made by laying it open to the bone and on his treatment of the leg of the plaintiff after such examination was made. Therefore, we can not say that the verdict was excessive. See Mo. & North Ark. Rd. Co. v. Collins, 106 Ark. 353.
The plaintiff in his complaint alleged that he was a citizen, resident and inhabitant of Union County, Arkansas, and had been for two years prior to receiving the injury complained of and ever since, and that during all of that period of time he had been and still was a resident, citizen and inhabitant of the Texarkana Division of the Western District of Arkansas. That Dallas County, Arkansas, the county in which suit was brought, is situated in the Western Division of the Eastern District of Arkansas. The defendant in due form filed its petition and bond for removal of the cause to the Federal court, alleging that the amount involved exceeded, exclusive of interest and costs, the sum of three thousand dollars. That the suit was of a civil nature, being an action for damages for a personal injury, and was between citizens and residents of different States in this, towit: That at the time this action was commenced the, plaintiff was a citizen and resident of the State of Arkansas and has been ever since and still is a resident and citizen of said State. That the defendant was at the time this suit was commenced and still is a corporation organized and existing under the laws of the State of Illinois. That at the time of the bringing of this action, long before and ever since the defendant has owned and operated a line of railroad through Dallas County, Arkansas, and also through numerous other counties in the Eastern District of Arkansas, and that during all of said time it had agents in Dallas County and other counties of said district upon whom summons could have been had. The question at issue on this point has never been expressly decided by the Supreme Court of the United States, but it has been decided adversely to the defendant’s contention in the case of St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507, and the opinion in that case is controlling here. There the court said:
‘‘ In determining- whether a cause should be removed to the Federal court the State court may look to the allegations of the complaint, when not in conflict with the statements of the petition for removal.
“A suit brought in a State court outside of the Federal district in which the plaintiff resides is not removable on the ground of diversity of citizenship on petition of the defendant, who is a citizen and resident of another State. ’ ’
Therefore, the judgment will be affirmed.
Mr. Justice Wood thinks the verdict is excessive and that a remittitur of $5,000.00 should be entered. This amount is ample to compensate for the injury sustained. It is manifest from the amount of the verdict in this case that the jury allowed damages as for a permanent injury. According to the doctrine announced by this court in the recent case of St. Louis, I. M. & S. Ry. Co. v. Bird, 153 S. W. 104, 106 Ark. 177, there was no evidence to warrant this. The doctors themselves were uncertain as to whether the injury would be permanent. The jury should not be allowed to speculate concerning this.