(dissenting). Instruction No. 2, given at the request of appellee, was abstract, therefore erroneous, and, in my opinion, was clearly prejudicial to appellant railway company. The framers of this instruction evidently had in mind, the doctrine often announced by this court, “that where a servant, by reason of his inexperience, is not aware of, or does not appreciate the dangers of the work he is employed to do, or to the place he is engaged to occupy, it is the duty of the master to give him such instructions and caution as would in the minds of men of ordinary understanding, he sufficient to enable the servant to appreciate the dangers. Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232-238.
But that doctrine has no application here, for the reason that appellee himself testified in part as follows:
“I had been in the service of the railway company in the bridge and building department, for five years. I had been working on this bridge for two or three weeks, except three days that I was sick: On the morning that I went to this pit, Mr. White had told me and Mr. Boyer to go there and take these measurements. He went with us over to the pit, and told us what measurements were to be taken. He did not give us any specific directions, but just told us to go do this work. We then selected the manner in which we should do the work, and did the work to suit ourselves. He was not present at the time of the accident. He did not tell me to go into the pit. I knew the situation and surroundings, and knew what was necessary to be done for preparing to cover the pit, and picked out my own way and method of doing the work. Before I got in the pit, I heard the engine running in the tower above. I knew that the engine would start and turn this machinery a good many times each day. I knew that it was running to test this machinery, and that it would run a while and stop a while. I knew that these cogs turned in the pit, when the machinery was in operation. I could see the cog wheels, and saw them turn. I knew that they were connected with this engine, and that when the engine was running, by pushing a lever, the cogs would be set in motion. They were uncovered and exposed to the eye, where they were easily seen.”
This testimony by appellee shows conclusively that he was not an inexperienced servant, that he absolutely knew and appreciated the dangers incident to the work he was doing. Appellant railway company was therefore under no duty to instruct him as to those dangers, and was not negligent in failing to so instruct him.
The appellee does not charge negligence in this respect in his complaint, and certainly his own evidence would negative such a charge had it been made. The rule established by this court and the authorities generally is, that when an instruction is abstract and erroneous, the giving of it is reversible error unless it clearly appears that no prejudice could have resulted.
To my mind it is obvious that prejudice could have resulted and did result. There was no other instruction given on this subject. The other instructions had reference solely to the duty of appellant railway company to warn appellee when the machinery would be put in motion, and to warn the engineer of the fact that appellee was working in the pit.
The instruction brought into the case an entirely new issue, and one that appellee’s own evidence disproves. Yet the attorneys for the appellee might have argued, before the jury, that the court had told them that they could find that it was appellant’s duty to instruct appellee as an inexperienced servant, of the dangers incident to the work he was doing, and the machinery about which he was working, and was negligent if it had not done so. The jury could not, under their oath, have disregarded such instruction. "Who can say that the verdict was not based upon it. It is difficult to conceive of an abstract instruction more misleading. It was therefore prejudicial. See Johnson v. Pennington, 105 Ark. 278; Emerson v. Turner, 95 Ark. 597; District Grand Lodge No. 11 Endowment, etc. v. Pratt, 96 Ark. 614. No such issue should have been introduced.
I therefore dissent from the judgment as to the appellant railway company, and for the error in giving appellee’s prayer for instruction No. 2, the judgment should be reversed and a new trial granted.