
    FAZIO v. COREY BROS. CONSTRUCTION CO.
    No. 2442.
    Decided June 7, 1913.
    Rehearing denied July 3, 1913
    (134 Pac. 747).
    1. Master and Servant — Master’s Duty — Warning. A master is not required to instruct and warn a servant of the danger of an employment, where the servant knows and appreciates the danger. (Page 124.)
    
      2. Master and Servant — Action—Instructions—Warning. In a servant’s action for injuries from defendant’s alleged negligence in failing to warn him of the danger of thawing dynamite, an instruction that if at the time and place where plaintiff was working, without notice of the danger, and was ordered by his foreman to work in proximity to the place where it was being thawed, so that he was injured thereby, the defendant was guilty of negligence, was erroneous in not requiring a finding that the plaintiff, because of his youth and inexperience, did not know and appreciate the danger. (Page 125.)
    3. Appeal and Error — Harmless Error — Instructions. Where the only inference permissible under the evidence in a servant’s action for injuries was that he did not appreciate the danger of working near the place where dynamite was being thawed, error in an instruction on defendant’s negligence in not requiring a finding that plaintiff, because of his youth and inexperience, did not know and appreciate the danger was harmless. (Page 125.)
    4. Trial — Instructions—Cure. In a servant’s action for injuries from the explosion of thawing dynamite, alleging negligence in failing to warn him of the danger therefrom, an instruction on contributory negligence that if plaintiff knew and appreciated the danger of working near the place where it was being thawed, or if the danger was so apparent that a person of ordinary prudence must have known and appreciated the danger, he could not recover, considered with an instruction that, before he could recover it must be found that he did not know and appreciate the danger of working there, was not reversibl error. (Page 125.)
    5. Evidence — Judicial Notice — Dangerous Substances. The court may take judicial notice that the use of dynamite in blasting is inherently dangerous, and that no one knows when and where it may explode. (Page 128.)
    
      6. Master and Servant^-Dtjty of Master — Warning—Use of Dynamite. The use of dynamite in blasting being inherently dangerous, and the thawing of dynamite before a fire making, the immediate vicinity a dangerous and hazardous place to work, it was the duty of the master, as to a young and inexperienced servant without knowledge or appreciation of such danger, to warn him of the danger of working in the vicinity of the fire, so that his failure to do stf_was, as a matter of law,, ■ negligence. (Page 128.)
    Steaup, J., dissenting.
    Appeal from District Court, Second District; Hon. J.. A. Howell, Judge.
    Action by Joseph Fazio against tbe Corey Brothers Construction Company.
    Judgment for plaintiff. Defendant appeals.
    Aeeikmed.
    
      H. H. Henderson for appellant.
    
      Valentine Gideon for respondent.
   McCABTY, C. J.

Plaintiff brought this action to recover damages for personal injuries which he alleges were caused' through the negligence of the defendant, Corey Bros. Construction Company, a corporation organized and existing under the laws of this state, with principal office in Ogden, Utah. A trial was had to a jury, which resulted in a verdict in favor of plaintiff for $1600. From the judgment rendered' on the verdict, defendant appeals.

The facts, over which there seems to be no controversy, are as follows: During the month of December, 1907, respondent was in the employ of appellant, which was engaged in constructing a railroad bed near the town of Gameill, State of Montana. On the 27th day of that month appel•lant bad several men, wbo are referred to in the evidence as the powder gang, engaged in blasting rock, boulders, •along the right of way. The weather being, very cold, the dynamite was frozen. In order to use the dynamite it was necessary to thaw it out. The method employed in thawing the ■dynamite was to build a fire, and around the fire to set a row of rocks in a circle, and on the inside of the circle, between the rocks and the fire, place the dynamite so that it would receive the heat and thaw out. One Decampo, an Italian, was what is called the “powder man.” It was his duty to attend to the fire, arrange the rocks, and place the dynamite near the fire where it would thaw out. It was also his duty to mix mortar, which was used for blasting purposes. That is, Decampo would take the dynamite after it was thawed, place it on the rocks, cover the dynamite with mortar, explode the dynamite, and break the rocks. Despondent worked with De-campo and the other members of the powder gang as helper. The duties of the helper were to carry powder, tools, and wood, and to do work generally of that character. A helper is not required, nor is he expected, to be an experienced hand in drilling or in the use of dynamite. On the occasion in question respondent was directed by the foreman in chargp of the work to assist Decampo. , One of the respondent’s duties was to carry sand from a steam shovel some distance from the fire above mentioned, to where Decampo was mixing mortar, and near the place where he was thawing dynamite. Despondent, who was an Italian, came to this country from Italy in 1904 or 1905, and was 19 years of age when he received the injuries alleged in his complaint. He did not understand the English language, and had had no experience in handling or using dynamite. He was not advised by appellant, or anybody else, of the danger of working in the vicinity of and in close proximity to the place where dynamite was being thawed and used. On this point respondent testified (and his testimony is not disputed) in part as follows: “I did not handle dynamite . for Corey Bros. Never did handle it in my life. . . . I never saw them explode dynamite before the 27th of December,” the day of the accident. As respondent, on the day in question, was returning from the steam shovel with hisfourth load of sand to where Decampo was at work, and when he was about eight or nine feet from the fire, the dynamite that was being thawed exploded. Decampo, who was-about seven or eight feet from the fire, was killed by the' explosion, and respondent was seriously injured. Kespond-ent’s nose and one of his arms were permanently injured,the hearing of one of his ears and the sight of one of his1 eyes were entirely destroyed, and the sight of his other eye1 very much impaired.

The alleged negligence of appellant, upon which respond--ent relies for a recovery, is stated in his complaint as follows:

“That the defendant then and there carelessly, negligently, and wrongfully ordered the plaintiff in his work to take sand alongside said sticks of dynamite and in close proximity of said dangerous explosives, and the defendant carelessly, negligently, and wrongfully permitted the plaintiff to engage in his work and go past the premises at said place where said dangerous explosives were being handled by the defendant, without giving him any notice or warning of the dangers thereof. . . . And plaintiff never knew or had any means of knowing that said dynamite as used and handled by defendant company was hazardous, or that defendant company would handle and manage the same so as to be hazardous and dangerous. . . . That the defendant knew, or by the exercise of ordinary care should have known, of all of said dangers, and well knew that plaintiff had no knowledge and no means of knowing of the existence of said dangers.”

As we have pointed out, the respondent, at the time of the accident, was a minor nineteen years of age; that he had had no experience in handling and using dynamite.

The court, among other things, instructed the jury:

“There is no dispute as to what was the method employed by the defendant in thawing out dynamite at the time and place where the plaintiff was injured, and there is no test-i-mony contradicting tbe testimony that tbe plaintiff was not notified of tbe danger in working in close proximity to tbe place where said dynamite was being tbawed out, if it was dangerous, so that, if you find by a 'preponderance of the ■evidence that at the time and place where the plaintiff was injured, the method of thawing out dynamite as used by the ■defendant was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such' close proximity to the place where such dynamite was being thawed out that his Ufe and limb were endangered thereby, then the court ■charges you that the defendant was guilty of negligence, and if you find by tbe same amount of evidence — tbat is, by a preponderance of tbe evidence — -tbat sucb negligence proximately caused tbe injuries wbicb plaintiff received, in other words, if you find by a preponderance of tbe evidence tbat but for sucb negligence tbe plaintiff would not have been injured, then tbe court charges you tbat tbe plaintiff is entitled to recover in this action, unless you find tbat be was guilty of contributory negligence, as will be hereinafter explained to you.”

Appellant excepted to tbat part of tbe instruction which we have italicized and assigns tbe giving of it as error.

It is suggested tbat it does not necessarily follow tbat because appellant failed to warn and advise respondent of the danger of working in tbe immediate vicinity of tbe place where tbe dynamite was being tbawed, bandied, and used, appellant was guilty of negligence; that negligence in tbat regard would depend upon whether respondent knew and appreciated tbe danger without having it explained to him, and tbat tbe court should have incorporated' this question with tbe other propositions embodied in tbe instruction, and, not having done so, tbe instruction as given is erroneous. Of course if respondent knew and appreciated tbe danger, appellant could not be legally convicted of negligence because of its failure to warn and advise him of it. Tbe rule is elementary tbat tbe master is not ’.required to instruct and warn tbe servant of tbe danger of tbe employment with wbicb tbe servant is conversant. Bailey’s Mast. Liab. to Serv’t, p. 118, and cases cited in mote.

We think that as an abstract proposition of law tbe in■struction, standing alone, does not lay down a correct principle of law. It does not contain all of tbe elements or propositions necessary to constitute negligence on tbe part of tbe master. If tbe court bad incorporated in tbe instruction, after tbe clause “bis life and limb were endangered thereby,” tbe following “and that plaintiff, because !of bis youth and bis inexperience in handling and using dynamite, did not know and appreciate tbe danger”— tbe instruction would, as an academic proposition, contain a correct statement of tbe law applicable to tbe facts of this ■case.

We do not think, however, that under tbe facts and circumstances of this case tbe giving of tbe instruction was prejudicial error. Respondent, at tbe time be was injured, was but nineteen years of age, and he bad bad no experience whatever in handling and using dynamite. And tbe •only inference permissible under tbe evidence, wbicb is not in conflict on this point, is that be did not know -or appreciate tbe danger of working in tbe immediate vicinity of tbe place where tbe dynamite was being thawed, .bandied and used. Therefore, even if tbe court bad submitted tbe question of whether respondent bad knowledge of and appreciated tbe danger, tbe jury could not have found ■against him on that question without ignoring tbe evidence and disregarding tbe instructions of tbe court.

Tbe court charged tbe jury on tbe question of contributory negligence as follows:

“Tbe defendant alleges that tbe plaintiff was guilty of •contributory negligence, and tbe court charges you that by ■‘contributory negligence’ is meant a failure on tbe part of tbe plaintiff to exercise such care as a person of ordinary prudence would have exercised under tbe circumstances. If tbe plaintiff failed to exercise such care, and such, failure proximately contributed to plaintiff’s injuries, then he cannot recover in this action.
“The court charges you that if you find from the evidence that at the time and place of his employment by the defendant company the plaintiff had no knowledge of danger in the* use of dynamite, or its dangerous and explosive character,, and did not appreciate the dangerous nature of dynamite,, nor the danger of being in close proximity to where it was-being thawed out, then the court charges you that the plaintiff was not guilty of contributory negligence, unless you. should find that the danger was so apparent that a person of ordinary prudence, by the exercise of ordinary care, must have known and appreciated the danger incident to his employment at the place where he was injured.”

The jury were given to understand by these instructions, that should they find from the evidence that respondent had' knowledge of and appreciated the danger of working in the' immediate vicinity of the place where the dynamite was-being thawed, or if they found that “the danger was so apparent that a person of ordinary prudence, by the exercise' of ordinary care, must have known and appreciated the danger,” he could not recover. The court also instructed the jury as follows: “You are not to consider any one clause of these instructions as an independent proposition, but you must consider all of the instructions together.”

We do not wish to be understood as holding that in all! cases a faulty or incorrect instruction given, on one phase-of the case is cured by the giving of a correct instruction on. the same point in another part of the charge which deals with: some other phase of the case. What we do say is that, under-the facts and circumstances of this case, the giving of the-instruction complained of was not prejudicial error. Moreover, as we have suggested, the jury were in effect told that before they could return a verdict for respondent they must find from the evidence that he did not know of and appreciate the danger of working in the immediate vicinity of th® place where the dynamite was being thawed.

Counsel for appellant, in bis printed brief, says: “Tbe using of dynamite in blasting, at all times and under all circumstances, is more or less a dangerous occupation,” and be says: “That tbe handling of dynamite for blasting purposes was dangerous to a certain extent no one will deny. No one knows at wbat time or at wbat place, while dynamite is being bandied, that it may not explode.” And by way of argument be says: “Tbe defendant bad a right to employ a competent agent to handle this dynamite, and it bad tbe further right to employ an assistant to Decampo in performing this hazardous work; and, unless tbe defendant was negligent in handling this dangerous instrumentality, tbe mere fact that it was dangerous would not ■entitle tbe plaintiff to recover, though be knew nothing about tbe explosive qualities of dynamite, and was not •acquainted with its use.”

' It will be seen from tbe foregoing copious quotations from tbe record and tbe printed brief of counsel for appellant that tbe following facts are in effect conceded:

(1) That tbe use of dynamite in blasting is inherently dangerous, and, as stated by counsel for appellant in bis brief, “no one knows at wbat time or at wbat place, while •dynamite is being bandied, that it may not explode.” Of this we think tbe court may take judicial notice.

(2) That tbe thawing of tbe dynamite before tbe fire on tbe occasion referred to made of tbe immediate vicinity of tbe dynamite a very dangerous and hazardous place in which to work.

(3) That respondent was not advised or warned by appellant, or by any one else, of tbe danger in working near or in tbe immediate vicinity of tbe place where tbe dynamite was being thawed, and that respondent, at tbe time be was injured, bad bad no experience whatever in handling or using dynamite, and that be did not know or appreciate tbe danger of working in close proximity of tbe fire at which tbe dynamite was being thawed.

Under these circumstances we think it was tbe duty of appellant to inform respondent of tbe danger of working in tbe vicinity of or in close proximity to the fire at which the-dynamite was being thawed, and its failure to do so was,, as a matter of law, negligence. In Bailey on Master’s Liab.. for Inj. to Servants, pp. Ill, 112, the author says:

“If there are any dangers, either latent or patent, of which the master has knowledge, either- actual or presumed, which the employee, either from his youth, inexperience, want of skill, or other causes, does not, or is presumed not to, understand or comprehend, they must he made known to him by the master. . . . The-obligation is not discharged by informing the servant generally that the service in which he is engaged is dangerous; and, more-specially is this so when the servant is a person who neither by experience nor by education has, or would be likely to have, any knowledge of the perils of the business, either latent or patent. In such case the servant should be informed, not only that the-service is dangerous, but of the perils of the particular place, and the particular or peculiar dangers that attend the service, if' any. ... So the negligence on the part of the master may consist solely in his failure of duty to instruct as to the perils, known to him, or which he ought to know.”

. This rule, which, we think is a wholesome one, was applied and followed by this court in the case of Pence v. Mining Co., 27 Utah, 378, 75 Pac. 934.

We are therefore of the opinion that the court did not err-in giving the instruction complained of, and which we have set forth.

Other errors are assigned, but we do not deem them of. sufficient importance to warrant us in discussing them.

The judgment is affirmed. Costs to respondent.

PEI OK, J.

I concur. While the court in the instruction complained', of omitted one element, yet the jury upon that element could, properly have found but one way, namely, that the respondent neither knew nor appreciated the danger to which he-was exposed. As to that element the court might well have directed the jury how to find the fact as a matter of law. If,, therefore, the court could properly have done so, it cannot amount to reversible error because the court omitted that element from the charge and submitted only the other elements.

STNATJP, J.

I dissent. I think the instruction not only erroneous but harmful. The theory of plaintiff’s case, as alleged in his complaint and upon which he went to the jury, is not that the defendant was negligent in selecting an improper or dangerous place to thaw the dynamite, or that the manner of thaYidng it was unusual, improper, or negligent, but that the defendant carelessly, negligently, and wrongfully ordered and permitted the plaintiff to ’work in close proximity “of a dangerous explosive,” without giving him notice or warning of the danger, he, as alleged, having been without knowledge or means of knowledge of the hazard and danger to which he was exposed, which, as is also alleged, the defendant knew or ought to have known. The court, as matter of law, charged the jury that the manner of thawing the dynamite, under all the circumstances disclosed, was not negligent. With respect to the defendant’s alleged negligence, the court instructed the jury (paragraph 2) as set forth in the prevailing opinion, and also as follows: “(10) The court charges you that from the allegations of the complaint, and from the evidence introduced, the thawing of dynamite by placing it around a fire in a circle is in itself not negligence, and that the defendant was not negligent in permitting its servants to thaw dynamite in such a way, but the court charges you that if you find by a preponderance of the evidence that the method of thawing out dynamite, as used by the defendant at the time and place where the plaintiff was injured, though not negligent, was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such close proximity to the place where such dynamite was being thawed out that his life and limb were endangered thereby, then the court charges you that the defendant was guilty of negligence.” Complaint is made of both of these instructions.

By this charge it is observed that the defendant’s negligence was predicated on bnt two things: Was the manner of thawing dynamite dangerous (not negligent) ; and was the plaintiff required or ordered to perform work in such close proximity thereto as to be exposed to the danger ? Restating the proposition, it is this: A master, in the exercise of ordinary care and free from negligence, is engaged in the conduct of a business or the operation of machinery, or the doing of something which is dangerous; now, if he directs or requires a servant to perform work in such close proximity thereto as to be exposed to danger, then is the master guilty of negligence. And this, too, according to paragraph 10, regardless of whether the defendant notified or warned the servant of the danger, and, according to both paragraphs, regardless of all questions of whether the servant himself knew of or comprehended or appreciated the danger. Thus the court directed the jury that if the manner of thawing the dynamite was dangerous, and if the defendant ordered or directed- the plaintiff to work in such close proximity thereto as to be exposed to the danger, then was the defendant guilty of negligence, regardless of the allegations of the complaint, and all questions (1) of whether the defendant negligently, carelessly, or needlessly required or directed - the plaintiff to work near or in the vicinity where the dynamite was thawed, or of the circumstance or conditions attending it and surrounding him; (2) of whether the danger was open and obvious, or known to the plaintiff, or comprehended or appreciated by him; and (3) of whether the defendant knew, or ought to have known, that the plaintiff was without knowledge or means of knowledge of the danger, or, because of his youth, inexperience, or ignorance did not comprehend or appreciate it, and for that reason ought to have warned and instructed him. In other words, the charge makes • the master an insurer when he permits or directs a servant to engage in a hazardous employment or to work at or in the vicinity of a place attended with danger.

It needs no argument to show that the charge is wrong. Was it prejudicial? It is said to be harmless because the evidence without conflict shows (1) that the defendant did not notify or warn the plaintiff of the danger, and (2) that the plaintiff had no knowledge, or means of knowledge, of the danger, and did not appreciate or comprehend it. We are not now dealing with questions of fact, or insufficiency of evidence, or of whether the evidence as to certain facts is or is not in conflict. We are dealing, with a question where the jury for their guidance were given an absolutely wrong principle — where they were misdirected and misguided — with respect to a material issue, the defendant’s negligence, the very thing upon which plaintiff’s case is-founded. Such a charge I think necessarily must be harmful, unless with respect to such issue the plaintiff was entitled to a directed verdict in his favor. No such claim is made, nor, on the record, do I think such a claim could properly be made. Futhermore, before the plaintiff can be in a position to defend the judgment on such ground he is required to show that he in some manner in the court below invoked such action, and to present by cross-assignments an adverse ruling thereon for review. He did neither. He defends the charge on the theory alone that it states correct principles.

But let it be conceded that the evidence without conflict shows that the defendant did not notify or warn the plaintiff of the danger, as was assumed by the trial court in paragraph 2 of the charge. The liability of a master in failing to warn and notify his servant of danger is not-determinable alone from the fact that the master did not notify or warn him. There are other equally important factors to be considered —among them, the character of the danger, whether it was open, obvious, and manifest or otherwise; the attending circumstances and conditions; the knowledge and experience of the servant himself; and the defendant’s knowledge or notice, either- actual or constructive, of the servant’s lack of knowledge or appreciation or comprehension of the danger. For these reasons the question of negligence predicated on the master’s failure to warn or instruct the servant of danger is peculiarly one of fact. It of course is admitted tbat in determining tbe liability of tbe master in tbis regard tbe question, or tbe extent, of tbe servant’s knowledge or appreciation or comprehension of tbe danger is an important factor. But again it is said tbat tbe evidence witb respect to tbis also shows without conflict tbat tbe plaintiff was without knowledge and did not appreciate tbe danger. I do not concur in tbat. True, certain facts were testified to by tbe plaintiff which were not directly disputed. Tbat tbe plaintiff was a ydung man nineteen years of age and was inexperienced in tbe handling of dynamite is shown. He testified tbat be never bandied dynamite, and until tbe accident never saw it exploded or discharged, and tbat tbe defendant gave him no instructions or warning concerning dangers of dynamite. But be did not testify tbat be was ignorant of tbe explosive properties or character of dynamite, or tbe purpose for which it commonly is used. He testified tbat be saw it thawing by means of fire; but be did not testify tbat be was ignorant of tbe danger or liability of its discharge by beat or coming in contact witb fire, or tbat be was ignorant of, or did not appreciate or comprehend, any of tbe attending dangers. Tbe defendant prosecuted tbe work of constructing a roadbed at different camps several miles apart. Plaintiff testified tbat before bis injury be worked fourteen or fifteen days at camp eleven, about ten days at camp six, and three or four days at camp fourteen, where be was hurt. At all these places rock was blasted by dynamite. He testified tbat at camp fourteen be worked about one day and a half drilling boles in rock, but did not know what tbe boles were for. He further testified tbat be did not at either place see dynamite discharged, because when the' explosions occurred be was either in tbe blacksmith shop, or at some other place where be could not see tbe discharge, but beard tbe reports of tbe discharges. Tbe plaintiff in fact was an inexperienced' powder man, and to a large extent in tbat capacity worked as a helper. But nothing was made to appear tbat tbe defendant or its vice principal — its agent who employed him or under whose direction be was — bad any knowledge of bis inexperience or unfamiliaxity with dynamite, or that any such information was given by him, or by any one, to the defendant or to any of its agents. He was employed with a gang of eight other Italians to drill and blast rook, and to do other work about the camp. Nothing was said by him, or by any one, of his inexperience or unfamiliarity with any of the work undertaken by him. That the defendant knew or ought to have known of his inexperience and unfamiliarity, or that he was ignorant of, or did not appreciate or comprehend the attending dangers, rests upon inferences and deductions, largely from the facts of plaintiff’s age. Now let it be conceded that the evidence was sufficient to carry the ease to the jury on all these questions. Nevertheless, I do not think it ought to be said that but one finding is permissible, negligence on the part of the defendant in failing to warn and instruct the plaintiff. Especially is this true when the facts upon which the plaintiff’s ignorance of the danger and his want of appreciation of it rest almost entirely upon his own testimony, the testimony not only of a directly interested witness, But a party to the action, and concerning a matter peculiarly within his own knowledge. Though one, especially' an interested party, should testify that he was in fact ignorant of the danger, or that he in fact had not appreciated or comprehended it, still the truth or falsity of the testimony, or the weight to be given it, would depend upon or be affected by a variety of things: Among them, the character of the danger; how open and obvious it was; how well, if at all, it was generally known and understood; the age, experience, and intelligence of the person, and the circumstances and conditions attending the danger and surrounding the person. Under such circumstances the question of the defendant’s negligence is peculiarly one of fact, upon which the defendant was entitled to have the judgment of the jury. Henee I may here say, as was said by Mr. Justice Gary in the case of P., C., C. & St. L. Ry. Co. v. Warren, 64 Ill. App. 584:

“It is no answer to say that the appellee, suing a railroad, would, have had a verdict anyhow; the appellant had the right to he mulcted under the forms of law.”

The negative charge, referred to in the prevailing opinion, that if the plaintiff was without knowledge of the danger and did not appreciate it, then he was not guilty of contributory negligence but emphasizes, instead of cures, the error complained of. In the first place it, too, is erroneous, in that it makes the want of contributory negligence solely dependent upon one thing: If the plaintiff was without such knowledge and did not appreciate the danger, then, says the court, was he, as matter of law, not guilty of contributory negligence, no matter how much he may have lacked in due care in all other particulars. But in the event the jury found he had such knowledge and 'did appreciate the danger, then what? The charge is silent as to such an hypothesis. The jury were left to dispose of it, and were given the liberty to find the plaintiff guilty or not guilty of negligence, as they on the. evidence, aided by argument of counsel, might think justice and meet in the premises and agreeably with the prayer of the complaint. In the next place this, charge gave the jury to understand that plaintiff’s knowledge and appreciation of the danger, or the want of it, had but to do with the question of. contributory negligence and the determination of it, but had npthing whatever to-do with the question of the defendant’s alleged negligence in failing to warn or notify the plaintiff of the danger, and heu.ce but emphasized the error complained of and considered. Certainly it will not be claimed that one error against an aggrieved party may be cured by another of equal or greater injurious effect.

And lastly, the conclusion deduced that because of the charge of contributory negligence the jury, before they could find for the plaintiff, were required to find that he was without knowledge of the’ danger and did not appreciate it is, in my judgment, not justified. For, as already pointed out, that charge directed the jury that if the plaintiff was without such knowledge and did not appreciate the danger, tben was be not guilty of negligence; bnt if they found be bad sucb knowledge and did appreciate tbe danger, tben were they at liberty to find bim guilty or not guilty as tbeir deliberations might determine.  