(after stating the facts). It is conceded that the action was brought under the Federal Employers’ Liability Act, and that in such cases it has been held by the Supreme Court of the United States, and by this court, that the work of repairing the roadbed and bridges of a railroad after they have become instruments of interstate commerce, and maintaining them in proper condition for the passage of interstate trains, is within the Federal statute. Pedersen v. Delaware, L. & W. R. Co., 229 H. S. 146; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473; Southern Pacific Company v. Industrial Accident Commission of California, 251 U. S. 259; Erie Railroad Co. v. Collins, 253 U. S. 77; Long v. Biddle, 124 Ark. 127; Treadway v. St. L. I. M. & So. R. Co., 127 Ark. 211, and Kansas City Southern Ry. Co. v. Leinen, 144. Ark. 454.
'But it is insisted by counsel for the defendant that the evidence is not legally sufficient to sustain the verdict within the principles of law above announced. We cannot agree with counsel in this contention. The complaint alleges and the answer admits that, at ,the time the plaintiff was injured, and for several years prior thereto, the Missouri Pacific Railroad Company was a corporation engaged in the business of transporting passengers and freight for hire as a common carrier by railroad in interstate commerce from Coffeyville, Kan., to Little Rock, Ark. It appears from the testimony of two of the witnesses for the plaintiff that, at the time the plaintiff was injured, he was unloading ties from a work-train, and that the ties were to be used for the purpose of repairing the railroad track. The work was being done on the Mulberry and Dyer sections between Mulberry and Van Burén, in the State of Axkansas.
The section foreman of the defendant testified that he had been working for the defendant as section foreman for twenty-six years, and was with the work-train on the morning the defendant was injured. On cross-examination he was asked how long he had been working for the defendant, and answered twenty-six years. He was then asked this question: “On that same section?” and replied, “No sir, from Van Burén to Little Rock.”
. It is fairly inferable from this evidence that the defendant was injured on the main line of defendant’s road from Coffeyville, Kansas, to Little Rock, Arkansas, and that he was injured between Mulberry and Van Burén, Arkansas, while unloading ties to be used in repairing the main track of said railroad. This established a cause of action under the Federal Employers’ Liability Act, if the defendant was guilty of negligence.
It is also inferable from the testimony that the work-train where the plaintiff was working when he was hurt was stopped with a more sudden jerk than usual, and that this caused him to, in a manner,.lose control of his end of the tie, so that his hand was caught between the tie and the door-facing of the car. It appears that the plaintiff had been working there for two or three days, and the jury might have inferred that he was accustomed to the ordinary jars caused by the ordinary stoppage of the work-train and could take care of himself in that situation. According to his testimony, a different situation presented itself by the work-train’s being stopped with a jerk more sudden and violent than usual. This, as above stated, caused him to lose control of his movements to a certain extent, and caused his hand to be caught between the tie and the door-facing, just as he was preparing to help throw the tie out of the car, after having given it a swing. The testimony of the plaintiff then made a question for the jury as to the negligence of the defendant.
Again, it is insisted by counsel for the defendant that the court erred in submitting to the- jury the question of the plaintiff’s injuries being permanent.
We cannot agree with counsel in this contention. According to the testimony of the plaintiff, he was injured on July 8, 1921, and it appears from the record that the case was called for trial on the 28th day of September,' 1922. The plaintiff testified that his hand could not be used for five or six months after it was hurt, and that it was still swollen. He further stated that his thumb bends back in a way that is not normal; that he can work it with his other hand and can only close his hand in a certain way. He was further asked if he could use the hand that was injured now (meaning at the time of the trial), and he answered, “No sir, I can’t hold with it.”
From this evidence the jury might have inferred that the injury to his hand was permanent. Therefore we hold that this assignment of error is not well taken.
The next assignment of error is that the court erred in giving instruction No. 3, on the assumption of risk, which is as follows:
“No. 3. If you find that plaintiff was injured in the performance of his regular duties, and you further find that his injury was caused or contributed to by the negligence of his fellow-employees, you are instructed that he did not assume the risk arising out of the negligence of fellow-employees.”
In construing the Arkansas Employers’ Liability Act, which is virtually a copy of the Federal act, this court said that the statute was not intended to and does not deprive the employer of the right to set up the defense of assumption of risk by the injured employee, where such injury was the result of the negligent acts of a fellow-servant of which the injured employee had knowledge and the dangers of which he appreciated. E. L. Bruce Co. v. Yax, 135 Ark. 480.
Again, in construing the Federal Employers’ Liability Act in the same respect, this court referred to decisions of the Supreme Court of the United States speak-’ ing on the question, and said: Court, ‘the consequent danger was so obvious that an ordinarily careful person in Ms situation would have observed the one and appreciated tlie other.’ ” St. Louis-San Frascisco Ry. Co. v. Blevins, 160 Ark. 362.
“This interpretation of the Federal statute places the question of assumed risk with reference to the negligence of plaintiff’s fellow-servants upon the same basis as negligence, of the master himself, for, in either case, the servant is not deemed to have assumed the risk of the negligence of either the master or the fellow-servant, unless the plaintiff is aware of the negligence and appreciates the danger, or, in the language of the' Supreme
Tested by the principles of law announced in these cases, instruction No. 3, copied above, is erroneous because it does not take into consideration that, under the facts of this case, the plaintiff might have assumed the extraordinary risks caused by the negligence of his fellow-servant, if he knew and appreciated them.
The instruction is prejudicial because the Jury might have found that the plaintiff, from the experience which he had already had in unloading ties, knew and appreciated the danger of stopping the train with a more sudden and violent jerk than was usual, and that, if such a fact had been found by the jury from the evidence in the record, the plaintiff assumed the risk arising from the extraordinary danger.
For the error in giving instruction No. 3 the judgment must be reversed, and the cause will be remanded for a new trial.