Hart, J.
(after stating the facts). It is earnestly insisted by counsel for the defendant that the judgment should be reversed because the verdict of the jury is contrary to the weight of the evidence. In making this contention counsel has not taken into consideration the distinction between the rules which govern trial courts and this court with respect to setting aside verdicts. It is the duty of the trial court to set aside a verdict which it is of the opinion is contrary to the weight of the evideuce, but this court has repeatedly held, that where the trial court has overruled a motion for a new, trial based upon the insufficiency of the evidence, and where there is any substantial evidence to support it, the verdict of the trial court will be. upheld on appeal. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428.
In the present case the trial court overruled the motion for a new trial, and his ruling in that respect was tantamount to a finding that the verdict was not against the preponderance of the evidence. There is nothing to indicate that he acted arbitrarily in making such finding, and no remarks of the trial court appear in the record to bring the present case within the rule announced in Twist v. Mullinix, 126 Ark. 427, as insisted by counsel for the defendant.
This brings us to a consideration of the question of whether there was any evidence legally sufficient to support the verdict.
According to the testimony of the plaintiff, he was holding the cleaver between the angle bar and the rail trying to pry them apart when the defendant’s foreman suddenly struck the cleaver with a sledge hammer, knocking the angle bar and rail apart so that the rail fell on his foot and severely injured him.
The court instructed the jury that if - it should find from a preponderance of the evidence that the cleaver was placed at the end of the angle bar and that the foreman negligently struck the cleaver with the sledge hammer, thereby injuring the plaintiff, and if it should further find that the plaintiff at the time was exercising ordinary care, the verdict should be for the plaintiff. No objection is made to this instruction.
The evidence, if believed by the jury, was sufficient to warrant the jury in finding for him, but it is earnestly insisted that the court should have told the jury, as a matter of law, that the plaintiff assumed the risk. This action was brought under the Federal Employers’ Liability Act.
In the case of Seaboard Air Line Railway v. Horton, 233 U. S. 492, the court held that, the Federal Employers ’ Liability Act having expressly eliminated the defense of assumption of risk in certain specified cases, the intent of Congress is plain that in all other cases such assumption shall have its former effect as a bar to an action by the injured employee.
According to the plaintiff’s testimony, the foreman suddenly struck the cleaver with the sledge hammer, thereby causing the injury. The work was not so obviously dangerous that an ordinarily prudent person under the circumstances would not have engaged in it. The servant assumes the risks of all dangers that are incident to the employment, and he can not recover for injuries which result to him therefrom. He also assumes the risk of injury from the manner in which he knowingly sees and observes that the work is being done. It can not be said, however, that, under the undisputed proof as declared by the record, plaintiff’s injury resulted from one of the risks incident to his employment, or that the danger was so obvious and imminent that no ordinarily prudent person under the circumstances would have engaged in the work. It is also insisted that the court erred in giving instruction No. 1. It is as follows:
“If you find in this case that the foreman, J. W. Eoss, placed the cleaver in the crack between the angle bar and the rail and that the plaintiff, with due care for his own safety, struck the cleaver with a hammer and this lick caused the rail and angle bar to spring loose and injure the plaintiff, if you so find from the evidence, and you further find from the evidence in this connection that the foreman Eoss instructed or directed the plaintiff to strike the cleaver, and at the time that he, Eoss, knew where the plaintiff was standing, and by the use ordinary care on his part might or could have known, that the plaintiff was standing in a place of danger, then it was the duty of the foreman to apprise the plaintiff of the fact that he was in a dangerous place, and if you find he failed to do this, bnt directed the plaintiff to strike the cleaver, and the plaintiff did so, and was not negligent in obeying said instructions, and you find this act of the said foreman was a negligent act on his part, and this negligence was the cause of the injury, then, in that event, if you so find, you will not diminish the amount of plaintiff’s recovery, in case he does recover, on account of the fact that he struck the cleaver and that this lick caused the rail to spring over and against the plaintiff, unless you further find that the foreman and plaintiff were both negligent, and in that event you will diminish plaintiff’s recovery of damages in proportion to the amount of his negligénce, in case you find damages in his favor.”
According to the testimony of the plaintiff, the foreman struck the cleaver at the time the plaintiff was injured. On the other hand, according to the testimony of the foreman, he did not strike the cleaver at that time. He said that he instructed the plaintiff where to stand,. and that the plaintiff was using the hammer at the time he was injured. The foreman was present and working with the plaintiff. He knew the position the plaintiff assumed in doing the work. It is true he said that he had instructed the plaintiff where to stand while using the hammer. The jury might have inferred, however, from the foreman’s testimony that he knew the plaintiff was in a dangerous place and that he again apprised him of his danger in using the hammer at the place where he was standing. This instruction and No. 2 immediately following it deals with the question of the reduction of damages under the Federal Employers’ Liability Act.
Instruction No. 2 is as follows:
“You are instructed that if you find by a preponderance of the evidence that the plaintiff was injured, as alleged, while in such employ of the defendant, and that the proximate cause of his injury was the negligence of the defendant, or its employees, at the time, your verdict will be for the plaintiff. On the other hand, if you find from the evidence that the plaintiff and defendant were both negligent, and that the negligence of both the plaintiff and defendant caused the injury, you will diminish the damages found in favor of the plaintiff in case you find damages in his favor in proportion to the amount of negligence you find attributable to plaintiff as the proximate cause of the injury.”
The Federal statute provides that the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by a jury in proportion to the amount of negligence attributable to such employee.
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Hart, J.
(after stating the facts). It is earnestly insisted by counsel for the defendant that the judgment should be reversed because the verdict of the jury is contrary to the weight of the evidence. In making this contention counsel has not taken into consideration the distinction between the rules which govern trial courts and this court with respect to setting aside verdicts. It is the duty of the trial court to set aside a verdict which it is of the opinion is contrary to the weight of the evideuce, but this court has repeatedly held, that where the trial court has overruled a motion for a new, trial based upon the insufficiency of the evidence, and where there is any substantial evidence to support it, the verdict of the trial court will be. upheld on appeal. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428.
In the present case the trial court overruled the motion for a new trial, and his ruling in that respect was tantamount to a finding that the verdict was not against the preponderance of the evidence. There is nothing to indicate that he acted arbitrarily in making such finding, and no remarks of the trial court appear in the record to bring the present case within the rule announced in Twist v. Mullinix, 126 Ark. 427, as insisted by counsel for the defendant.
This brings us to a consideration of the question of whether there was any evidence legally sufficient to support the verdict.
According to the testimony of the plaintiff, he was holding the cleaver between the angle bar and the rail trying to pry them apart when the defendant’s foreman suddenly struck the cleaver with a sledge hammer, knocking the angle bar and rail apart so that the rail fell on his foot and severely injured him.
The court instructed the jury that if - it should find from a preponderance of the evidence that the cleaver was placed at the end of the angle bar and that the foreman negligently struck the cleaver with the sledge hammer, thereby injuring the plaintiff, and if it should further find that the plaintiff at the time was exercising ordinary care, the verdict should be for the plaintiff. No objection is made to this instruction.
The evidence, if believed by the jury, was sufficient to warrant the jury in finding for him, but it is earnestly insisted that the court should have told the jury, as a matter of law, that the plaintiff assumed the risk. This action was brought under the Federal Employers’ Liability Act.
In the case of Seaboard Air Line Railway v. Horton, 233 U. S. 492, the court held that, the Federal Employers ’ Liability Act having expressly eliminated the defense of assumption of risk in certain specified cases, the intent of Congress is plain that in all other cases such assumption shall have its former effect as a bar to an action by the injured employee.
According to the plaintiff’s testimony, the foreman suddenly struck the cleaver with the sledge hammer, thereby causing the injury. The work was not so obviously dangerous that an ordinarily prudent person under the circumstances would not have engaged in it. The servant assumes the risks of all dangers that are incident to the employment, and he can not recover for injuries which result to him therefrom. He also assumes the risk of injury from the manner in which he knowingly sees and observes that the work is being done. It can not be said, however, that, under the undisputed proof as declared by the record, plaintiff’s injury resulted from one of the risks incident to his employment, or that the danger was so obvious and imminent that no ordinarily prudent person under the circumstances would have engaged in the work. It is also insisted that the court erred in giving instruction No. 1. It is as follows:
“If you find in this case that the foreman, J. W. Eoss, placed the cleaver in the crack between the angle bar and the rail and that the plaintiff, with due care for his own safety, struck the cleaver with a hammer and this lick caused the rail and angle bar to spring loose and injure the plaintiff, if you so find from the evidence, and you further find from the evidence in this connection that the foreman Eoss instructed or directed the plaintiff to strike the cleaver, and at the time that he, Eoss, knew where the plaintiff was standing, and by the use ordinary care on his part might or could have known, that the plaintiff was standing in a place of danger, then it was the duty of the foreman to apprise the plaintiff of the fact that he was in a dangerous place, and if you find he failed to do this, bnt directed the plaintiff to strike the cleaver, and the plaintiff did so, and was not negligent in obeying said instructions, and you find this act of the said foreman was a negligent act on his part, and this negligence was the cause of the injury, then, in that event, if you so find, you will not diminish the amount of plaintiff’s recovery, in case he does recover, on account of the fact that he struck the cleaver and that this lick caused the rail to spring over and against the plaintiff, unless you further find that the foreman and plaintiff were both negligent, and in that event you will diminish plaintiff’s recovery of damages in proportion to the amount of his negligénce, in case you find damages in his favor.”
According to the testimony of the plaintiff, the foreman struck the cleaver at the time the plaintiff was injured. On the other hand, according to the testimony of the foreman, he did not strike the cleaver at that time. He said that he instructed the plaintiff where to stand,. and that the plaintiff was using the hammer at the time he was injured. The foreman was present and working with the plaintiff. He knew the position the plaintiff assumed in doing the work. It is true he said that he had instructed the plaintiff where to stand while using the hammer. The jury might have inferred, however, from the foreman’s testimony that he knew the plaintiff was in a dangerous place and that he again apprised him of his danger in using the hammer at the place where he was standing. This instruction and No. 2 immediately following it deals with the question of the reduction of damages under the Federal Employers’ Liability Act.
Instruction No. 2 is as follows:
“You are instructed that if you find by a preponderance of the evidence that the plaintiff was injured, as alleged, while in such employ of the defendant, and that the proximate cause of his injury was the negligence of the defendant, or its employees, at the time, your verdict will be for the plaintiff. On the other hand, if you find from the evidence that the plaintiff and defendant were both negligent, and that the negligence of both the plaintiff and defendant caused the injury, you will diminish the damages found in favor of the plaintiff in case you find damages in his favor in proportion to the amount of negligence you find attributable to plaintiff as the proximate cause of the injury.”
The Federal statute provides that the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by a jury in proportion to the amount of negligence attributable to such employee.
The Supreme Court of the United States has held that where the casual negligence is ¡attributable partly to the master and partly to the injured servant, the latter shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the master bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportionate part of the damages corresponding to the employee’s contribution to the total negligence. Seaboard Air Line Railway v. Tilghman, 237 U. S. 499.
This principle was given by the trial court, and it was the evident purpose to advise the jury as prescribed by the statute in their determination of the amount of damages.
The instructions complained of are too lengthy and are somewhat involved.
Counsel for the defendant only saved a general exception to the instructions. If he had any objection to a particular part as misleading, he should have called the court’s special attention to that part, so that the court might modify or explain the words used. Not having done so, he is not now in an attitude to complain.
Counsel for the defendant also asks for a reversal of the judgment because the court modified instruction No. 2 asked by it by adding the word “negligently” between the words, “himself and strike the cleaver.” The instruction as asked by the defendant is as follows:
“Plaintiff alleges in the first paragraph of his complaint that he was in the employ of the Director G-eneral of Bailroads on the 17th day of February, 19Í9, and was working in an extra gang, and was at the time engaged in removing the steel rails, which steel rails were to be replaced with new steel rails. He further alleges that while engaged in this service under the instructions of the foreman in charge of the work he received great and permanent injuries because of the negligence of the foreman. He alleges thát he had placed an iron cleaver at the end of an angle bar and that J. W. Boss, foreman' of the gang, struck the cleaver with a sledge hammer and thereby caused the injury to the plaintiff. If the jury find from the evidence that the plaintiff himself struck the cleaver and that the foreman did not strike the cleaver, the jury will find for the defendant.”
The court was right in inserting the word “negligently. ’ ’ The instruction as asked by the defendant was peremptory in its nature and exempted the defendant from liability if the plaintiff himself struck the cleaver regardless of whether his act in so doing was negligent or not. Other instructions asked by the defendant bear this same vice, and if given would have been, in effect, a peremptory instruction to find for the defendant. Therefore, the court did not err in refusing to give them.
We find no prejudicial error in the record, and the judgment will be affirmed.