dissenting.
Appellee testified: “I discovered that I couldn’t handle myself as good with my left side as I could with my right to the car. When we started I went around the ear to change sides. Obie West asked me to change sides with him but the boss said, ‘No, Mr. Compton, go back to that side. You don’t understand handling that brake beam.’ ' I never said a word; that was his orders. I started to speed it up. There was a road crossing there. I crossed the cattle gap and was walking on the end of the ties pushing along, all the time running along with it. As quick as we left the cattle gap, I went to make a spring, etc.”
The testimony of this witness shows that he could not get on the car as well with his left side to it as he could with his right side, hence he was intending to change to the other side of the car when his foreman directed him not to do so. His testimony shows that the foreman was present directing the work. While the foreman had shown appellee how to board the car when it was in motion, he had not told appellee that the car was too high to be safe and expressly warned appellee of the danger because of such fact in attempting to get upon same while the car was in motion.
Under the circumstances thus disclosed by the evidence it was a question for the jury to say whether or not the appellee assumed the risk. This case cannot be distinguished in principle from the cases of Dickinson v. Mooneyham, — Ark. —, 203 S. W. 840; A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291; St. L. I. M. & S. Ry. Co. v. Griffin, 121 Ark. 433; Ry. Co. v. Cosio, 182 S. W. 83.
Under the doctrine of the above cases it was a question for the jury as to whether or not the appellee knew and appreciated the danger incident to boarding the car in the manner indicated. Therefore the court did not err in refusing to declare as a matter of law that the appellee assumed the risk. It occurs to us that the present case can not be distinguished from the doctrine of the above-cases without too great refinement of reasoning. See also Gila Valley, Globe & Northern Ry. Co. et al v. Hall, 232 U. S. 94. In the latter case it is said: “Moreover, in order to charge the employee with the assumption of risk attributable to a defect due to the employer’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew that it endangered his safety, or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” Such being the law, it was for the jury to say under the circumstances in the instant case as to whether or not the appellee had the right to rely upon the superior knowledge of his foreman and whether or not appellee in so doing, as a person of ordinary care, would be bound to know and appreciate the danger incident to his work.
Mr. Justice HUMPHREYS concurs.