The opinion
Robinson, J. I concur for the reason that I do not believe Instruction No. 37 Aims error.
Two separate defenses are affirmatively pleaded: assumed risk and contributory negligence. I agree that the giving of Instruction No. 35 was error. We have heretofore held that an employee does not assume the risk of his employment merely because he fails to exercise ordinary care to discover a hazardous condition. Mosley v. Mohawk Lumber Company, 122 Ark. 227 , 183 S. W. 187 . This does not mean, hoAvever, that the employee may not be guilty of contributory negligence because of his failure to exercise ordinary care to discover a defect by AAdiich he is injured.
Instruction No. 35 given by the court deals with the principle of assumed risk, and Instruction No. 37 involves the proposition of contributory negligence. In my opinion, Instruction No. 37 is a correct statement of the laAV. It simply tells the jury that if the plaintiff failed to exercise ordinary care to discover a defective condition of the scaffold, and if the failure to use such care contributed to his injury, then he Avould be guilty of contributory negligence. Ordinary care is' that degree of care which an ordinarily prudent person would exercise in the same or similar circumstances.
In 38 Am. Jur. 865 the rule is stated as follows: “Every person is bound to the exercise of vigilance with a view to the discovery of perils by which he may be menaced and their avoidance after they have been ascertained. Every person is bound to use due diligence to save his person from injury by the negligent act of another. ’ ’
In 65 C. J. S. 722 it is stated: “The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed, and one injured as a result of his failure to use his faculties to observe and discover a danger which would have been observed and discovered by an ordinarily prudent person is guilty of contributory negligence. ’ ’
In St. Louis & S. F. Rd. Co. v. Carr, 94 Ark. 246 , 126 S. W. 850 , it is said: “Where a danger is probable or obvious, it is the duty of a person to exercise ordinary care to avoid the injury, even though the other party was negligent. And this duty to avoid the consequences of another’s negligence arises whenever the circumstances are such that an ordinarily prudent person would apprehend their existence. The law requires exercise of ordinary care to observe danger and avoid it.”