Burn, C. J.,
(after stating the facts.) The gravamen of the complaint in this action, as in all actions of the kind, is that, by reason of the negligence of the master, the servant has suffered injuries for which damages are sought. This necessarily demands an inquiry into the relation of master and servant, and as b> the mutual obligations and duties, growing out of that relation, which they owe to each other.
There does not seem to be any real controversy in this case as to the character and quality of the “mangle,” the machine at which the plaintiff, as an employee of the defendant company, was called upon to work in the course of her employment. Therefore the duties and obligations which the law imposes upon the defendant, in respect to the plaintiff may be the more briefly stated thus: “It was its duty to exercise ordinary care in keeping the machine in reasonably good condition and repair, so that the dangers attendant upon working with it (if there were any) would not be increased unnecessarily.” The plaintiff, on the other hand, “assumed all the risks naturally attendant upon the employment and incident to the work she was engaged to perform.” The defendant was under obligations to use ordinary care and diligence in discovering latent defects in the machine, or in its position; and while this duty was not imposed upon the plaintiff, yet both were under obligations to observe patent defects, and give notice of. the same—the servant, that the master might remedy the defect; and the master, that the servant might thereby be the better protected. Extraordinary care is required of neither of them. All that may be said as to the degree of care to be exercised by the master, for instance, is that he should exercise ordinary care, and that only is he required to exercise, although it is said that ordinary care in one case may not be ordinary care in another. In general, then, ordinary care is that care which a prudent man usually exercises in the conduct of his own affairs, to be determined by the circumstances of each case. Vinton v. Schwab, 32 Vt. 614; Mich. Cent. R. Co. v. Coleman, 28 Mich. 449.
The principal objection of the defendant to the instructions given by the court below is to the second instruction given at the instance of the plaintiff, which seeks to define the relation existing between the parties, and the duties the one owes to the other, and lays down the rule by which the jury was to be governed in determining whether or not the charge of negligence was well founded, and thus a recovery might or might not be warranted. The instruction complained of is as follows, to-wit: “You are instructed that if the Park Hotel Company employed the plaintiff to work for it in its laundry, it assumed the duty to control its mangle in said laundry, and keep it, while she was at work at it, in a reasonably safe condition, so as not to unnecessarily enhance the dangers attendant upon the employment. That she assumed the natural risks of her employment, but did not assume risks arising from any negligence of the hotel company, if you find there was such in constructing defective machinery; and if the plaintiff received any injury caused by the defective condition of the machinery at which she was put to work, she is entitled to recover, unless the injury was the result of the contributory negligence of the plaintiff; and, upon the question of contributory negligence, you are instructed that a servant or employee is not required to inspect the appurtenances of the business in which she is employed to see whether or not there are latent defects that render their use more -than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that she might have known of defects, if you find there were any, or that she had the means and opportunity of knowing of them, will not preclude her from recovery, unless she did in fact know of the defect, or in the exercise of ordinary care ought to have known of it. She was not bound to make an examination to find defects, but it was the duty of the Park Hotel Company to use ordinary care in finding them. She had the right to rely upon the judgment and discretion of the Park Hotel Company to provide her with machinery to work with that would not unnecessarily enhance the dangers attendant upon her employment.”
Much of this instruction, and we might say most of it, is abstractly correct, but it is the enunciation of a theory, especially in the first part of it, which may be the right one or the wrong one, accordingly as we construe its language. It will be observed that the jury were told that the defendant assumed the duty to control its “mangle” in its laundry, in the very act of employing the plaintiff to work for it in its laundry. That may have been, and doubtless was, a fact, but it was not the business of the court to declare to the jury what the facts were. There may be instances of such employment where the servant, and not the master, assumes control of the machinery. Besides, the word “control” is a broad term to use in such a connection. It may have meant, to the mind of the jury, that the defendant, by reason of this control, was to be held absolutely responsible for all defects that might arise in the. •course of the plaintiff’s work at the machine. The master is not supposed to be always present, either personally or otherwise, and therefore the assumption of .absolute duty to keep the machine in even a reasonably ■safe condition is not the burden the law imposes upon the master in such cases.
The defendant complained that by these instructions the court made actual conditions the test of defendant’s liability, while the law makes its conduct the test; reasoning therefrom that, as bad conditions may exist or arise in spite of the most careful conduct, it follows that •defendant was subjected to a false test, and thus deprived of a trial according to law. The master, says Mr. Wood, in his work on Master and Servant, section .329, “is not only bound, in the first instance, to use reasonable care in the selection of machinery and appliances, but also to exercise reasonable and proper watchfulness to see that it is kept in proper condition.” Again, the same author says: “The measure of the master’s duty is reasonable care, and this necessarily has relation to the parties, the business in which they .are engaged, and varies according to the exigencies which require vigilance and attention, conforming in .amount and degree to the circumstances under which it is to be exerted.” Mr. Bailey, in his work on Master’s Liability for Injuries to Servants (pages 2-4), says: “A •master is liable in damages, ordinarily, to his servant •who is injured through the master’s failure of duty towards him; negligence being nothing more nor less •than a failure of duty. Among the implied obligations ■resting upon the master are that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident' to the employment will permit, etc.” And, continuing, he says: “In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such ■only. The degree of care required in each of these particulars is the same. The authorities are all agreed that the degree required to be exercised is that of ordinary care.”
Such is the doctrine of this court, uniformly expressed in all cases wherein the particular question has ■arisen, and where it has become necessary to particularly state the law. Thus in St. L. etc. Ry. Co. v. Harper, 44 Ark. 524; L. R. etc. Ry. Co. v. Duffey, 35 Ark.
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Burn, C. J.,
(after stating the facts.) The gravamen of the complaint in this action, as in all actions of the kind, is that, by reason of the negligence of the master, the servant has suffered injuries for which damages are sought. This necessarily demands an inquiry into the relation of master and servant, and as b> the mutual obligations and duties, growing out of that relation, which they owe to each other.
There does not seem to be any real controversy in this case as to the character and quality of the “mangle,” the machine at which the plaintiff, as an employee of the defendant company, was called upon to work in the course of her employment. Therefore the duties and obligations which the law imposes upon the defendant, in respect to the plaintiff may be the more briefly stated thus: “It was its duty to exercise ordinary care in keeping the machine in reasonably good condition and repair, so that the dangers attendant upon working with it (if there were any) would not be increased unnecessarily.” The plaintiff, on the other hand, “assumed all the risks naturally attendant upon the employment and incident to the work she was engaged to perform.” The defendant was under obligations to use ordinary care and diligence in discovering latent defects in the machine, or in its position; and while this duty was not imposed upon the plaintiff, yet both were under obligations to observe patent defects, and give notice of. the same—the servant, that the master might remedy the defect; and the master, that the servant might thereby be the better protected. Extraordinary care is required of neither of them. All that may be said as to the degree of care to be exercised by the master, for instance, is that he should exercise ordinary care, and that only is he required to exercise, although it is said that ordinary care in one case may not be ordinary care in another. In general, then, ordinary care is that care which a prudent man usually exercises in the conduct of his own affairs, to be determined by the circumstances of each case. Vinton v. Schwab, 32 Vt. 614; Mich. Cent. R. Co. v. Coleman, 28 Mich. 449.
The principal objection of the defendant to the instructions given by the court below is to the second instruction given at the instance of the plaintiff, which seeks to define the relation existing between the parties, and the duties the one owes to the other, and lays down the rule by which the jury was to be governed in determining whether or not the charge of negligence was well founded, and thus a recovery might or might not be warranted. The instruction complained of is as follows, to-wit: “You are instructed that if the Park Hotel Company employed the plaintiff to work for it in its laundry, it assumed the duty to control its mangle in said laundry, and keep it, while she was at work at it, in a reasonably safe condition, so as not to unnecessarily enhance the dangers attendant upon the employment. That she assumed the natural risks of her employment, but did not assume risks arising from any negligence of the hotel company, if you find there was such in constructing defective machinery; and if the plaintiff received any injury caused by the defective condition of the machinery at which she was put to work, she is entitled to recover, unless the injury was the result of the contributory negligence of the plaintiff; and, upon the question of contributory negligence, you are instructed that a servant or employee is not required to inspect the appurtenances of the business in which she is employed to see whether or not there are latent defects that render their use more -than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that she might have known of defects, if you find there were any, or that she had the means and opportunity of knowing of them, will not preclude her from recovery, unless she did in fact know of the defect, or in the exercise of ordinary care ought to have known of it. She was not bound to make an examination to find defects, but it was the duty of the Park Hotel Company to use ordinary care in finding them. She had the right to rely upon the judgment and discretion of the Park Hotel Company to provide her with machinery to work with that would not unnecessarily enhance the dangers attendant upon her employment.”
Much of this instruction, and we might say most of it, is abstractly correct, but it is the enunciation of a theory, especially in the first part of it, which may be the right one or the wrong one, accordingly as we construe its language. It will be observed that the jury were told that the defendant assumed the duty to control its “mangle” in its laundry, in the very act of employing the plaintiff to work for it in its laundry. That may have been, and doubtless was, a fact, but it was not the business of the court to declare to the jury what the facts were. There may be instances of such employment where the servant, and not the master, assumes control of the machinery. Besides, the word “control” is a broad term to use in such a connection. It may have meant, to the mind of the jury, that the defendant, by reason of this control, was to be held absolutely responsible for all defects that might arise in the. •course of the plaintiff’s work at the machine. The master is not supposed to be always present, either personally or otherwise, and therefore the assumption of .absolute duty to keep the machine in even a reasonably ■safe condition is not the burden the law imposes upon the master in such cases.
The defendant complained that by these instructions the court made actual conditions the test of defendant’s liability, while the law makes its conduct the test; reasoning therefrom that, as bad conditions may exist or arise in spite of the most careful conduct, it follows that •defendant was subjected to a false test, and thus deprived of a trial according to law. The master, says Mr. Wood, in his work on Master and Servant, section .329, “is not only bound, in the first instance, to use reasonable care in the selection of machinery and appliances, but also to exercise reasonable and proper watchfulness to see that it is kept in proper condition.” Again, the same author says: “The measure of the master’s duty is reasonable care, and this necessarily has relation to the parties, the business in which they .are engaged, and varies according to the exigencies which require vigilance and attention, conforming in .amount and degree to the circumstances under which it is to be exerted.” Mr. Bailey, in his work on Master’s Liability for Injuries to Servants (pages 2-4), says: “A •master is liable in damages, ordinarily, to his servant •who is injured through the master’s failure of duty towards him; negligence being nothing more nor less •than a failure of duty. Among the implied obligations ■resting upon the master are that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident' to the employment will permit, etc.” And, continuing, he says: “In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such ■only. The degree of care required in each of these particulars is the same. The authorities are all agreed that the degree required to be exercised is that of ordinary care.”
Such is the doctrine of this court, uniformly expressed in all cases wherein the particular question has ■arisen, and where it has become necessary to particularly state the law. Thus in St. L. etc. Ry. Co. v. Harper, 44 Ark. 524; L. R. etc. Ry. Co. v. Duffey, 35 Ark. 602; Bauer v. St. L. etc. Ry. Co. 46 Ark. 388; St. L. etc. Ry. Co. v. Gaines, 46 Ark. 555; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232. It has also been uniformly held by this court that a servant cannot recover of the master for an injury which the servant by reasonable ■care and attention could have prevented. In L. R. etc. Ry. Co. v. Leverett, 48 Ark. 344, an instruction very much like the one now under consideration was given at the instance of the plaintiff. Another, in some sense ■explaining or qualifying the first, was also given, and the court said: “Construing these instructions together, •appellant was not prejudiced by any of them.” This language, when taken by itself, may be construed as an Approval of the instruction in this case, which is almost identical in language with the one in that case, but it must be remembered that in that case there was little or no controversy as to the condition of the road-bed, for that was virtually admitted to be bad; but the controversy was as to the deceased’s waiver of defendant’s obligation to him by his acceptance of the employment with full knowledge of the condition of the place he was to work in. The instruction on this latter point was unobjectionable. Hence it was that the court, in that particular •state of case, could say the appellant was not prejudiced by these instructions when taken together. Certainly such language in such a connection could not mean that the first instruction was correct. It had rather the contrary meaning, for it was as if the court had said: “It is erroneous when standing alone, but, taken in its connection, and under the circumstances, it. is tolerated, since, notwithstanding its errors, it does no harm.” To substantiate this construction of the meaning of the court in that case, we have only to repeat what the court said immediately after in that connection: “In employing the deceased, the appellant assumed the duty of exercising reasonable care and prudence to provide him a safe place and tools to exercise the employment, and to maintain the place and tools in a reasonably safe condition.” The same may be said of the language of. the court in St. Louis etc. Railway v. Higgins, 53 Ark. 458. So, then, it is the conduct of the master that is the subject of the jury’s inquiry, and not the condition of the appliance with which the servant is employed to work; and the conduct of the master that will exonerate him from the charge of negligence is his exercise of mere ordinary care in respect to the use and keeping in repair of the appliance.
The instruction in question propounds another and radically different theory. It, in effect, directs the jury to find whether or not the appliance was in a reasonably safe condition at the time of the injury, and, if not, to find for plaintiff. What might have been a reasonably safe condition in the estimation of the jury is a question incapable of solution, and can never be answered, simply because the jury had no standard by which to determine such a fact, and were without power to fix one for themselves, and the court was as powerless to suggest one to them. The condition of the machine was an evidentiary fact merely, and one that was only serviceable in determining the ultimate fact—the care exercised on the part of the defendant.
Presumably, from their verdict, the jury found that the machine was not in a reasonably safe condition, but whether they found that the defendant had failed to exercise ordinal care and diligence, or had not exercised the highest degree of care known in the conduct of human affairs, and thus inflicted the injury complained of, does not appear. This exercise of, or failure to exercise, the proper degree of care, however, is the very thing that should appear as the result of their findings, and the reason why it does not so appear is that they were not instructed that such was the real and essential object of their inquiry.
Seemingly, appreciating the force of the appellant’s complaint against this instruction, the appellee contends that the error, if any, is remedied by the latter part of her fifth instruction. This seems to us however to possess the same vice as the first instruction, for it simply defines the duty of the vice-principal to be to maintain the machine in such a condition as not to incur the dangers incident to its operation, leaving out the idea that it was her duty, as a vice-principal, to exercise ordinary care only to keep it in proper condition.
It is also contended by the appellee that the error complained of is cured by directions in her seventh instruction. The jury in this seventh instruction were told that “if they believed from the evidence that appellant permitted the mangle to be out of level, and caused it to be operated in that condition, when they knew, or should have reasonably known, from circumstances within their knowledge, that such condition endangered their employees who were at work at it, and the rollers of the mangle, by reason of that condition, started in motion, caught her hand before she could withdraw it, and inflicted the injury complained, the appellant was liable.” Now, whether the jury construed the court to mean, by this instruction, that it was a fact that the condition of the machine was the proximate and efficient cause of the injury, or only that if they should so find, they might find so and so, we are unable to guess from the language of the instruction itself. Being doubtful as to its real meaning, the instruction is misleading in that particular, and of course falls far short of being so perfect as to remedy the defects of another erroneous one.
The third instruction given on behalf of the defendant, and referred to by appellee as calculated to cure the error. complained of, we may say states the law, but what effect it could have in neutralizing the effect of a radical defect, such as is complained of, we cannot say, and this may be said also of the ninth and thirteenth, given at the instance of the defendant and appealed to by appellee in the same connection.
The refusal of the court to give the second, fifth and fourteenth instructions asked by defendant, has the effect of emphasizing the error we have endeavored to'point out..
The ruling of this court in Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, furnishes an easily understood guide to instruct the jury as to the duties a master owes to an inexperienced minor employed to work for him; and so does the case of Bloyd v. Railway Co. 58 Ark. 66, as to what constitutes a vice-principal; and while it is true that, to establish the fact of contributory negligence as a defense, the burden of proof is on the defendant, yet it must be understood, and so explained in every case, that this fact may appear as well from the testimony on the part of plaintiff as on the part of defendant.
Some of the questions discussed will probably not arise in another trial, and others we have not noticed because we find no error in the trial court’s disposal of them. Upon the whole case, without saying more, we think the instructions were misleading, and that a new trial is proper.
Reversed and remanded.