dissenting. I respectfully disagree with the majority opinion because Mrs. Capps presented substantial evidence to go to the jury on the question of whether she voluntarily assumed the risk of her injuries.
A voluntary act is one done without compulsion or obligation. The doctrine of assumption of risk can only be applied in cases where the person may reasonably elect whether he shall expose himself to the danger.
In Kuykendall v. Newgent, 255 Ark. 945, 504 S.W. 2d 344 (1974), appellee was employed as a deliveryman. He carried meat to his employer’s customers. While carrying a box weighing from 80 to 100 pounds he slipped and fell on an accumulation of ice at the delivery entrance. Both the trial court and this Court refused to hold that the appellee had assumed the risk as a matter of law.
Newgent admitted he knew it was dangerous to walk across the ice and stated he was being as careful as possible. When asked on cross-examination why it was his decision to walk across the icy spot, he replied “the only decision I had to make was to keep my job.” The Court on this issue stated:
* * * While Newgent may have been guilty of some negligence, we cannot say as a matter of law that such negligence exceeded that of appellants. Such issues are ordinarily a question of fact for the jury. (Citation omitted.)
See also Woodruff Electric Co-op. Corp. v. Daniel, 251 Ark. 468, 472 S.W. 2d 919 (1971).
Newgent felt it was necessary to cross the icy spot because his job demanded it. In the case at bar certainly no less impelling was the need for the daughter (appellant) to render necessary assistance to her mother who, according to appellant’s testimony, “had a broken hip and the ball and socket had deteriorated after the surgery.” Mrs. Capps stated her mother was bedfast, had no one with her and appellant had to come home at noon each day to assist with her bodily needs and “to give her medication” and “to take her food.” She then stated, “I had no other choice but to go through the water.” She was compelled by duty and obligation to take this course of action.
Neither can I agree with the statement of the majority that this was not an emergency. One definition of emergency is a “pressing need.” Certainly there was a continuing “pressing need” for the daughter to reach her mother at noon time and take care of her.
Prosser, Torts 4th Ed. § 68 (1971) (Voluntary Assumption of Risk) states:
The second important limitation upon the defense of assumption of risk is that the plaintiff is not barred from recovery unless his choice is a free and voluntary one. There must first of all, of course, be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. It is not every deliberate encountering of a known danger which is reasonably to be interpreted as evidence of such consent.* * *
. . . [T]he risk will not be taken to be assumed if it appears from his words, or from the facts of the situation, that he does not in fact consent to relieve the defendant of the obligation to protect him. * * *
There is absolutely nothing in the record to indicate appellants intended to relieve McCarley and Company from the admitted responsibility of repairing the defect in the driveway which caused the accumulation of water when it rained. To the contrary, appellants had made several demands for corrective action and each time appellee had promised to remedy the situation.
* * * In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exergised. He is not, for example, required to forego pasturing his cattle in a field because the defendant has failed in its duty to fence its adjoining railway track. By placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk. * * * (Italics supplied.)
Prosser, Torts, supra.
On appeal from a directed verdict the reviewing court must view the evidence in the light most favorable to the appellant, regardless of credibility, in determining if a question of fact exists for a jury’s consideration. Gramling v. Baltz el al, 253 Ark. 352, 485 S.W. 2d 183 (1972).
For the foregoing reasons, I would reverse and remand the case for a new trial.