The relevancy of the discussion of the right of an injured servant to recover against one or more of the joint tort-feasors who have injured him — under the undisputed testimony in this case — is not apparent. The master has been held liable in this case, not as a joint tort-feasor, but under the *Page 568 doctrine of "respondeat superior." Cooley on Torts, (3rd ed.) page 254.
It is necessary to strip this case of its superfluities in order to ascertain the applicable principles of the law of master and servant which should be applied in its solution and decision.
It is true, as stated, that the answer alleged that the injured servant — the plaintiff — was guilty of contributory negligence, and that his injury had resulted from a risk which he had assumed. These pleas are so usual in an ordinary personal injury cases that the lawyer who failed to allege them would himself be guilty of negligence. It is true also that instructions submitted these issues. Appellant having asked such instructions, it is settled law that no prejudicial error was committed in giving them, although they were abstract. One cannot complain that an abstract instruction was given at his request. But it is a wholly different proposition to say that either an allegation in a pleading or an abstract instruction can supply a total absence of evidence to prove an essential fact.
The majority say the jury may have found that the injured servant was guilty of contributory negligence and upon this finding applied the comparative negligence doctrine, and, in its application, excused Hudgins, the fellow-servant, against whom contributory negligence was an absolute defense, yet held the master liable, for the reason that contributory negligence was not an absolute defense in its favor and that, as against the master, the doctrine of comparative negligence applies.
But what are the undisputed facts? The plaintiff alleged no act of negligence against any one except Hudgins, and the majority say that "the judgment against appellant (the master) is for the negligence of its servant, Hudgins, alone." Although the master alleged plaintiff was guilty of contributory negligence, this fact was denied by the plaintiff, and not a scintilla of evidence was offered in support of it, and appellee's able *Page 569 counsel solemnly asserts in his brief filed in this case and in the oral argument before us that plaintiff was not guilty of contributory negligence. I am unable to see why this statement should not, therefore, be accepted as an undisputed fact, and, if so accepted, the question of comparative negligence passes out of the case. Where only one person was negligent, there is no negligence to compare, and even an abstract instruction cannot supply a total absence of testimony. The discussion of the doctrine of comparative negligence, under the undisputed testimony in this case, is as much aside as is the discussion of the right to recover against one or more joint tort-feasors.
The majority opinion mentions the fact that file foreman was standing by while the meter was being put in place; but this fact adds no new issue. Even though the foreman had ordered Hudgins to assist in putting the meter in place, it is not contended that he gave any directions as to the manner in which this simple duty should be performed, and there is no allegation or issue that Hudgins was known to be a careless or incompetent servant. Certainly, there was no negligence in ordering Hudgins to assist. His assistance meant only the presence and participation of another servant in placing the heavy meter in the desired position. Had Hudgins, while standing by and available, not assisted, the contention might have been made that the employees were ordered to perform a duty without sufficient assistance. Ordering Hudgins to assist could only fix his status as an employee, and not a volunteer, and the case presents no such issue.
The quotation in the majority opinion from 39 C.J. page 1269, affords no support to the conclusions reached. I have placed in italics the portion of the quotation which destroys its application to the facts of this case. As thus italicized it reads: "Under comparative negligence rule, where, in an action for negligence against a corporation and certain of its employees, there is a plea *Page 570 of contributory negligence on the part of defendant and evidence tending to establish it, the jury may, if the evidence justifies it under the comparative negligence rule, find in favor of such employees and against the corporation."
It thus appears that, to make the comparative negligence doctrine apply so that the master may be held liable for the negligence of his servant and the servant himself excused, there must, not only be a plea of contributory negligence, but "evidence tending to establish it," and this necessity of testimony to present the issue cannot be supplied by abstract instructions. It would be a new doctrine, and one which I think the majority do not intend to announce, to say that an instruction, which merely declares the law applicable to a particular state of facts can supply the necessity of proving those facts.
The case of Patterson v. Risher, 143 Ark. 376,221 S.W. 468, was a well-considered case, and I do not understand that the majority intend to impair its authority. They have quoted the quotation appearing and approved in that case taken from the case of Bradley v. Rosenthal,154 Cal. 420, but, in my opinion, they have not applied the rule there approved to the facts of this case.
The principle applied in the Patterson v. Risher, supra, case is that, while the master is responsible for the negligence of his servant, and must respond in damages for such negligence, yet, where the sole claim for damages against the master is that the servant's negligence inflicted the injury and caused the damage, a finding that the servant was not negligence necessarily discharges the master, because, if the servant was not negligent, then there is nothing for which the master should respond. Here we have not only an entire absence of testimony that the plaintiff was guilty of contributory negligence, but we have the contention of his able counsel made before us that he was not guilty of contributory negligence. There is therefore no negligence to compare, *Page 571 and the doctrine of comparative negligence is unavailing.
There are certain exceptions to the rule announced in Patterson v. Risher, but they are more apparent than real. For instance, in the case of Davis v. Hareford,156 Ark. 67, 245 S.W. 833. Without questioning the law as declared in Patterson v. Risher, we distinguished it from the case of Davis v. Hareford, and the distinction was just this: The Davis case was a suit for damages against both a railroad company and its engineer, whose negligence was alleged to have caused the plaintiff's injury. There was a verdict against the railroad company and in favor of the engineer, and we said the verdict was not inconsistent, because there was a statutory presumption of negligence against the railroad company, which the jury might have found was not overcome, whereas there was no such presumption against the engineer, and the finding may have been made in that case that the statutory presumption against the railroad company was not overcome, whereas, as against the engineer, the testimony might not have been sufficient unaided by that presumption, to establish negligence on the part of the engineer.
The majority say, in effect, that this principle may have been applied in the instant case, inasmuch, as against the master, the doctrine of comparative negligence applied, whereas, as against the servant Hudgins, contributory negligence was an absolute defense. In other words, the jury might have found that the plaintiff was guilty of some negligence contributing to his injury, and for this reason his right to recover was defeated as against Hudgins, whereas, as against the master, a corporation; the right to recover would not have been defeated unless the negligence of the plaintiff was equal to or greater than that of Hudgins.
But it may again be an answered that this theory has no place in this case, for the reason that the plaintiff defied at the trial and now denies in his brief on this *Page 572 appeal that he was guilty of any negligence whatsoever, and there is not a particle of testimony in the record that he was guilty of the slightest negligence. Certainly he should be bound, if not by his contention at the trial, then by his solemn admission before us.
The sole ground upon which liability has been asserted against the defendant corporation is that Hudgins was negligent, and that this negligence was the sole cause of the plaintiff's injury, and as the jury has found that Hudgins was not guilty of negligence, and as appellee insists that he, too, was not negligent, the doctrine of the Risher case applies, and in our opinion therefore the judgment against the defendant corporation should conform to the jury's finding, and if this is done the judgment against the master should be reversed and the case dismissed.
We therefore respectfully dissent from what we regard as the inconsistency of holding the corporation liable when Hudgins has been found by the verdict of the jury not to have been guilty of negligence.
I am authorized to say that Mr. Justice McHANEY concurs in the views here expressed.