OPINION ON REHEARING.
Hart, J.It is earnestly insisted by counsel for appellant that the court erred in not holding as a matter of law that appellee assumed the risk, and in support of his contention states that the court has misunderstood the facts.
It is well settled that in testing the sufficiency of the evidence to support the verdict the court must view the facts in the light most favorable to appellee.
Counsel for appellant in making his contention that the court misunderstood the facts only takes into' consideration the evidence adduced in behalf of appellant. He does not take into consideration at all the fact that appellee’s own testimony flatly contradicts the testimony of the witnesses for appellant. It will be remembered that appellant’s foreman testified that he did not strike the cleaver at all at the time appellee was injured. He says that he was holding the cleaver and that appellee was striking with the hammer; that he told appellee where to stand in order to keep from being hurt in the event the rail flew back after the angle bar was removed from it; that the appellee was hurt by reason of quickly stepping from a place of safety to a place of danger before he could be notified not to do this by the foreman.
On the other hand, this testimony of the foreman and that of other witnesses who corroborated his testimony is flatly contradicted by the testimony of appellee himself. It will be remembered that the foreman and his crew were engaged in removing an old rail from the track at the time appellee was injured. We quote from the record of appellee’s testimony the following:
“Q. Now, what were you doing to the rail?
“A. Disconnecting it at the joint.
‘‘Q. Now, go ahead in your own way and explain to the jury how you did that?
“A. I had the hammer at the time, and Mr. Ross had the cleaver, and he was holding it and cut the nuts off of the bolts. I just knocked the bolts out of the rail that was holding the angle bars. I hit the angle bar two or three times with the hammer, and it wouldn’t come loose. Mr. Ross says, ‘Let me have the hammer.’ He was standing on the outside of the track. After I struck two or three licks with the hammer myself, then I gave him the hammer, and he hit the outside angle bar a lick or two, and it came loose. The cleaver was lying there, and I picked it up and, like the rail was there, I was standing sort of in here, and they connected there, and this inside ■angle bar was still fastened. The cleaver was lying there, and I picked it up and twisted it, and I jumped back in there, and as I did that Mr. Eoss raised the hammer and hit the cleaver.
‘ ‘ Q. What happened then?
“A. The rail sprung the angle bar out, and the rail caught me just a little above the ankle. ”
Continuing, appellee stated that the angle bar was between twenty-eight and thirty-six inches long, and that, there would be half of that distance projecting beyond the end of the rail; that the angle bar attached to the rail was what struck his leg, and that he did not know that the- angle bar was fastened to the rail.
Continuing, appellee said: “I picked up the cleaver and, using it myself, I struck that way in between the angle bar and flange of the rail. I twisted it and the cleaver jumped out and then I stuck it back in there again at the same place, and at the time I done that Mr. Eoss was standing outside the rail with the hammer in his hand and he raised the hammer and struck the cleaver on the head and drove it in between the angle bar and flange of the rail. That sprung the angle bar out from the rail, and then the rail jumped across and caught me.
‘‘ Q. When you were working with the cleaver in the crack there yourself was you trying to ease it loose or get it loose without a sudden lick that would spring it?
“A. That couldn’t hardly be, only I stuck the cleaver in there with the intention after I got it in there and sprung it out the angle bar would come out and it would leave the rail loose.
“Q. You thought it would drop loose from both rails, did you?
“A. I had an idea it would. I didn’t know it was fastened on the other end of the rail.
“Q. You didn’t know it was fastened to the r ail that did spring over?
“A. No, sir; I did not.
“Q. I will ask you when the lick was struck if it sprang over suddenly before you could get away from it?
“A. It did.”
The witness described the cleaver as a tool with a handle in it. One end is broad like a chisel, and the other is blnnt like a hammer. The cleaver proper was something like six or eight inches long, and the handle was about two feet long. The sledge hammer that was used in striking the cleaver weighed at least twelve pounds. Again, appellee stated that he was working on the inside of the rail and the foreman on the outside at the time he was injured. He said that he was trying to prize the angle bar loose with the cleaver at the time he was injured, and did not know that the foreman was going to hit the cleaver; that he was beyond the reach of the rail, and the angle bar stuck out far enough to hit him when the rail flew back; that he did not know that. He expected the angle bar to drop down when he prized it loose from the rail and did not know that the foreman was going to strike the cleaver until after he had done so. Thus it will be seen that appellee’s testimony is in irreconcilable conflict with the testimony of the witnesses for appellant.'
According to the testimony of appellee, he thought he could prize the angle bar loose from the rail with the cleaver or chisel and when he had done so the angle bar would drop down to the ground. He stood in a position where he could be out of the reach of the rail itself when it sprung back. He did not know that the foreman was going to strike the cleaver with the sledge hammer. The formean struck the cleaver suddenly with the sledge hammer and thereby caused one end of the angle bar to become loose. The other end adhered to the rail, striking appellant on the ankle before he could get out of reach of the angle bar. The act of the foreman' in striking the cleaver suddenly with the sledge hammer without warning to appellee was the proximate cause of the injury. Therefore, appellee’s own testimony made a case for the jury, and the court did not err in submitting the question of assumption of risk to the jury. In this view of the matter, it is not necessary to set out in detail the testimony of appellant; for it is readily apparent that the witnesses for appellant were contradicted by the testimony of appellee himself.
Again, counsel criticises the opinion of the court for saying in the- original opinion that no objection was made to the instruction of the trial court on the question of negligence. Counsel points -out that he made objections to the action of the trial court in giving- it. What the court meant to say was that counsel did not argue in his brief that the instruction on the question of negligence was erroneous. We do hot understand counsel to contend that the instruction given by the court on the question of negligence was erroneous. It is perfectly apparent, however, that if there is testimony sufficient to warrant the submission of the question to the jury, there is no error in the form of the instruction. It plainly submits to the jury appellee’s theory of the case and makes the negligence of appellant depend upon the truth of appellee’s testimony.
Again, counsel criticises the opinion of the court with regard to the instructions given on the measure -of damages.. Counsel insist that the court erred in saying that he did not make specific objections to these instructions. If it be assumed that his objections to the instructions amounted to a specific objection to them, still we do not think that the action of the court in giving the instructions was reversible error.
The Federal statute is that “the fact that the employee may have been guilty of contributory .negligence shall not bar a recovery, but the damages shall be detérmined by the jury in proportion to the amount of negligence attributable to such employee. ’ ’ The two instructions -on the measure of damages set out in our original opinion should be read together. In the latter part of instruction two, the court told the jury that, if it should find from the evidence that the plaintiff and defendant were both guilty of negligence which caused the injury, the damages found in favor of the plaintiff should be diminished in proportion to the amount of negligence attributable to the plaintiff as the proximate cause of the injury. The idea meant to be conveyed was that if the plaintiff had contributed to his own injury by his own negligence, the diminution in the damages should be in proportion to the amount of his negligence. We think the court had reference to the rule of proportion specified in the statute, and that the instructions, when read together, gave the jury the correct principle of law with reference to the exoneration of the carrier, and made it liable only for a proportionate part of the damages corresponding to the amount of the negilgence attributable to the employee. Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114. Therefore, there was no prejudicial error in giving the instruction.
We have examined the record and find no prejudicial error in it. Therefore the motion for rehearing will be denied.