#### J. E. Stafford *v.*Chesapeake & Ohio Railway Company

(No. 7055)

Submitted October 28, 1931.

Decided November 3, 1931.

*Fitzpatrick, Brown & Davis*and *C. W. Striekling,*for plaintiff in error.

*James Damron*and *Randolph Bias,*for defendant in error.

Hatoher, Judge:

This is an action brought under the Federal Employer’s Liability Act, to recover damages for personal injuries received by plaintiff on October 15, 1928, while in the employment of defendant. The plaintiff procured a judgment for $40,000.00 and defendant obtained a writ of error.

The most material evidence follows: The plaintiff testified that at the time of his injury he was twenty years old, had painted houses for a year “off and on” before entering the employment of the defendant, and had worked for it as a “painter’s helper” some five or six weeks,- that he was assisting G. W. Malone, an experienced painted, move a long heavy swinging board (used as the painters’ scaffold) on one of defendant’s bridges when the board shifted suddenly, knocked *250bim off tbe bridge and tbe fall broke bis back; tbat be bad worked on tbe eastern end of tbe board (painting tbe bridge) for several hours before moving tbe scaffold and bad noticed a little rope fastened to tbe stirrup wbicb supported tbe board; that be had never worked on a swinging scaffold before; tbat no one instructed bim to tie tbe board to tbe stirrup; tbat be did not know tbe board should be tied to prevent tbe strirrup slipping; tbat J. A. Finley, tbe assistant foreman of defendant, informed bim be should help Malone; and tbat Malone rigged tbe scaffold. It is established tbat tbe eastern stirrup slipped, causing tbe board to escape control, and tbat immediately after tbe accident, it was not tied to the board. Plaintiff’s claim of inexperience is supported by bis witness Finley, who testified tbat after watching plaintiff work (prior to tbe day of his injury) be (Finley) bad advised tbe foreman that plaintiff was “too green a man to put on” bridge work. Finley was within some twelve feet of tbe plaintiff at the time be fell, and was tbe only witness who observed bim before be actually commenced falling. Finley denied tbat tbe board knocked plaintiff from tbe bridge, and stated tbat the board bad swung to a perpendicular position about 17 feet a-way from plaintiff, when be turned pale, took a step or two and fell. Finley further stated tbat be directed tbe men on tbe bridge, as a group, to tie the stirrup to make it secure and tbat upon bis inspection later, be noticed tbat tbe eastern stirrup was tied. He is supported by two of defendant’s witnesses, who were on tbe bridge, as to instructing tbe group to tie tbe scaffold so it would be safe, and by one such witness as to tbe board being in a perpendicular position before plaintiff fell. Plaintiff admits be was one of tbe group to which Finley gave certain orders as to tbe work, but says he did not bear tbe instruction to tie tbe stirrup.

Tbe plaintiff contends tbat under tbe evidence, tbe defense of assumption of risk is inapplicable and tbat be is entitled to recover as a matter of law. An ordinary risk assumed by bim was tbat of losing bis footing on the bridge by reason of dizziness or misstep. His own witness Finley says (in effect)) tbat plaintiff fell for just those reasons. Consequently, we cannot yield to tbat contention. Tbe defend*251ant argues that the ordinary use of plaintiff’s senses should have demonstrated to him that moving the scaffold without tying the board to the stirrup would be dangerous, and that he should be held, as a matter of law, to have assumed such an obvious risk even if it were an extraordinary one. We cannot agree with that argument because of Finley’s corroboration of plaintiff’s inexperience *(“too*green” *to work on bridges),*Finley being immediately in charge of the plaintiff and representing the master. The manner in which the accident occurred and the rick assumed, are jury questions and should have been properly so submitted. But a binding instruction, complete in itself, was given on behalf of plaintiff, which entirely ignored the material defense of assumption of risk. This was reversible error despite other instructions, given on behalf of defendant, which did present that defense. “A binding instruction in behalf of the plaintiff which ignores a material defense supported by substantial proof is erroneous. The error is not corrected by an instruction on behalf of the defendant properly submitting the issue.” *Shaver*v. *Coal Co.,*108 W. Va. 365, 380. The reasons for this rule were stated many years ago in *McMechen*v. *McMechen,*17 W. Va. 683 (pt. 12 Syl.) as follows: “ It is error to give inconsistent instructions to the jury, for it is calculated to confuse and mislead them; it leaves the jury at liberty to decide according to the correct rule of law or the contrary, and renders it impossible for the court to determine upon what legal principle the verdict was founded.” This rule has been consistently applied by this court to binding instructions for a half century, except in a few cases where the instruction was incomplete or for some other substantial reason which does not exist in the instant case. See *Woodell*v. *Imp. Co.,*38 W. Va. 23; *McCreery’s Admx.*v. *Ry. Co.,*43 W. Va. 110; *McVey*v. *Coal Co.,*49 W. Va. 412; *Blake*v. *Ry. Co.,*57 W. Va. 300; *Canning Co.*v. *Grocery Co.,*68 W. Va. 698; *Britton*v. *Oil Co.,*73 W. Va. 792; *Pettry*v. *Coal Co.,*77 W. Va. 654; *Evans*v. *Kirson,*88 W. Va. 343; *Blackwood*v. *Tr. Co.,*96 W. Va. 1; *Trippett*v. *Pub. Ser. Co.,*100 W. Va. 319.

*252For which error the judgment of the lower court is reversed, the verdict of the jury set aside and a new trial awarded the defendant.

*Judgment reversed; verdict set aside; new trial awarded.*