
    Fugler v. Bothe et al., Appellants.
    
    Division One,
    October 21, 1893.
    Negligence: master and servant: assumption op risk: obvious dangers. Deceased, an experienced carpenter, had been working for three weeks in the side boarding of air shafts. He had finished three of them, standing on a plank on the inside of a shaft for that purpose. While sheathing the fourth he lost his balance, fell off the plank down the shaft and received injuries which caused his death. Held, that the danger being obvious and continuous,'the deceased assumed the risk and the master was not liable.
    
      Certified from St. Louis Court of Appeals.
    
    Reveesed and eemanded.
    This case was certified from the St. Louis court of appeals upon a division of opinion in that court. The opinion of Judge Biggs and the dissenting opinion of Judge Rombaube are set out in this report and the dissenting opinion approved as properly declaring the law.
    
      
      Lubke & Muenchlox appellants.
    (1) The trial court should have sustained the motion to make the petition more definite and certain. The general allegations of negligence were good only on demurrer or motion in arrest of judgment. But the matters called for by this motion were essential to give a right of action, and should have been specifically stated on the request therefor by appellants. Revised Statutes, 1879, sec. 2057; Bliss on Code Pleading, sec. 425; Edwards v. Bailroad, 74 Mo. 117. (2) The trial court erred in excluding the evidence to.show that by comparison the gutter projection was as safe as the ordinary swinging platform commonly used by carpenters, painters and tinners. The question being one of negligence, this testimony was competent to show appellants did only what other persons are constantly doing under like circumstances.' (3) The trial court erred in refusing the instruction that respondent was not entitled to recover. First. Because there was no evidence to show that Fugler fell from the gutter projection; or if he did fall, that the same was traceable to any act or omission of appellants. Moore v. Bailroad, 28 Mo. App. 622; Shertlev. Bailroad, 97 Pa. St. 450. Second. Because, under all the evidence and physical facts, the perils, whatever they were, of working on the gutter projection were so obvious that Fugler, being a skilled workman, was bound to take notice of them, and assumed their risks as an incident to his trade. Nolan v. Shickle, 69 Mo. 336; McDermott v. Bailroad, 87 Mo. 285; Steffen v. Mayer, 96 Mo. 420; Devanney v. Peper, 12 Mo. App. 588; Walters v. Wire Co., 14 Mo. App. 592; Sparks v. Bailroad, 31 Mo. App. Ill; Woerheide v. Foundry Co., 32 Mo. App. 367. Third. Because the alleged refusal of appellants to allow the erection of scaffolding had no reference to the fourth shaft. Nolan 
      
      v. Shichle, 69 Mo. 336; McDermott v. Railroad, 87 Mo. 295. Fourth. Because, under all the evidence, the projection was a reasonably safe place. Devlin v. Railroad, 87 Mo. 545. (4) The first instruction given for respondent was erroneous. It made appellants liable if the projection was in any degree “an unsafe place” to do this work on. It made appellants insurers. The law is quite the other way; the master is not an insurer, and is bound only to use ordinary care to provide his servant with a reasonably safe appliance and place to work in. Devlin v. Railroad, 87 Mo. 552. (5)' The court erred in refusing the instruction marked number 2, refused, asked by appellants, and erred in modifying that instruction by adding the words, “and that the danger of so doing the work was apparent and threatening.” (6) The instruction given for respondent on the measure of damages was erroneous, because it was not qualified as required by the statute. (Revised Statutes, 1889, sec. 4427.) The jury were not confined to the “necessary injury” nor were they directed to-have “regard to the mitigating or aggravating circumstances.” (7) The trial court should have set aside the verdict as not supported by substantial evidence, showing negligence of appellants. Taylor v. Fox, 16 Mo. App. 527; Lionberger v. Pohlman, 16 Mo. App. 392. See dissenting opinion .of Judge Rombaueb, — Fugler v. Bothe, 43 Mo. App. 62.
    
      F. P. Johnson for respondent.
    (1) The evidence was ample (and moreover direct) to go to the jury to show that Euglér fell from the gutter projection, and that the fall was caused by the negligence of the appellants. Soeder v. Railroad, 100 Mo. 673; Schlerethv'. Railroad, 96 Mo. 514; Schulte v. Moon, 33 Mo. App. 340,341; Bueshing v. Gas Company, 73 Mo. 230; Kelly v. Railroad, 70- Mo. 607. Moore v. 
      
      Railroad, 28 Mo. App. 622, cited by appellants, is in plain contradiction of the foregoing. (2) It is presumed that Fugler did know there was danger and took notice of it, but it was the duty of appellants to provide him a safe place to work (Bishop on Non-Oontract Law, sec. 683) and a failure to do this and keep it so was continuing negligence. Parsons v. Railroad, 94 Mo. 288 on p. 292. (3) Fugler’s failure to protest or to receive assurance of safety, or his knowledge of the danger, or his right to. quit the service, would not defeat a recovery if the guttering was not so dangerous as to threaten immediate injury, or to be plainly perilous to life or limb, or if he might have reasonably supposed he could safely work on the guttering by the use of care and caution. Williams v. Railroad, 18 S. W. Bep. 1098; Boeder v. Railroad, 100 Mo. 673; Stephens v. Railroad, 96 Mo. 207; Huhnv. Railroad, 92 Mo. 440; Hughes v. Fagin, 46 Mo. App. 43; Fugler, v. Bothe, 43 Mo. App. 44; Shortel v. St. Joseph, 104 Mo. 120. (4) The first instruction given for respondent is technically correct and perfect as against appellants, the word unsafe being the antithesis of safe and of reasonably safe. It threw the burden of proving no contributory negligence on the part of Fugler, on the respondent, when there was not a scintilla of evidence to support it, and with this exception is precisely such an instruction, in an almost exactly similar case, including details of construction, plats, etc., as was approved in the case of Bowen v. Railroad, 95 Mo. 268, on p. 276, and that the instruction is correct and the petition good, and respondent had a right to combine and rely on all the acts of negligence of appellants, see Johnson v. Railroad, 96 Mo. 340,p. 348, when but one instruction was given, and Dowell v. Guthrie, 99 Mo. 653, on p. 665. But if this instruction had been erroneous, it was cured by instruction number 5. Owens v. Railroad, 95 Mo. 169; 
      Dougherty v.Bailroad, 97 Mo. 647; Schroeder v. Michel, 98 Mo. 43; Company v. Cuggemos, 98 Mo. 391; Fugler v. Bothe, 43 Mo. App. 44; Shortel v. St. Joseph, 104 Mo. 119.
   Biggs, J.

— Charles H. Fugler, the plaintiff’s ■deceased husband, was employed by the defendants in the construction of a building in the city of St. Louis.' While in this employment the deceased fell from the second story of the building to the first floor, thereby receiving injuries which resulted in. his immediate ■death.

The petition, after alleging that the deceased was a carpenter by trade, averred that his death was caused by the negligence of the defendants, by reason of their failure to provide a safe and proper place for him to perform the work required of him. The negligence thus complained of was stated as follows: “That the defendants were then constructing a light and air shaft in said building, to reach from the second floor thereof to the top of the same, the dimensions of which were about eight by eleven feet, in which space no floor had been laid in said second floor and it was open, except a guttering that projected fifteen inches inward all around, from the walls of said shaft, upon which .guttering it was necessary for said Charles H. Fugler to stand and work; that the foreman of defendants in charge of said building, commenced the erection of a .scaffold for the purpose of making a safe and proper place for said Charles H. Fugler and others to work in the construction of said shaft but the defendants instead of permitting him to proceed in the erection of the same carelessly and negligently and recklessly, ref used to permit him to do so and peremptorily ordered that the work proceed in the construction of said shaft, without a •scaffold, and the same Charles H. Fugler then proceeded to work on said shaft and in consequence of the aforesaid wrongful act, neglect and default of the defendants the said Charles H. Fugler, while so engaged at work fell from said shaft upon the floor of said building and his death was caused thereby on said day.”

The defendants filed a motion to make this petition more specific and certain. The complaints were, that the petition failed to show whether Fugler. was an experienced or inexperienced workman; it failed to show whether or not the danger to which it was alleged the deceased was exposed was obvious or hidden; and, further, it was nowhere averred that the defendants had made Fugler' any assurances that it would be safe for him to do his work from the gutter, or that he relied upon such assurances. The court overruled th'e motion and the defendants saved their exceptions by then and there tendering a bill of exceptions.

In their answer, the defendants after making a general denial, averred that the death of Fugler was an accident or that it happened because of his imprudence, -carelessness or thoughtlessness directly contributing thereto. This was denied by the reply. Upon the issues thus made up, the case was submitted to a jury. There was a finding and judgment in the plaintiff’s favor for thirteen hundred dollars. From this judgment the defendants have appealed.

The first assignment of error presents for our consideration the action of the court touching the defendants’ motion to make the petition more specific and certain. The plaintiff’s right of recovery was in no way predicated upon the idea that the deceased was an inexperienced person. The simple averment that he was a carpenter, without more, conveys the idea that he was a workman of ordinary experience and was well acquainted with the usual hazards attending his employment. Nor is the right of recovery, as we understand it, based upon the theory that the deceased was induced to go into a place of danger, upon the assurances of his employers that there was no danger. The cause of action is for negligence on the part of the defendants in furnishing unsafe and unusual appliances or means for the performance of the work. If the defect was perfectly obvious, then the presumption of law would be that the deceased assumed the increased risk by entering upon the work, provided the danger was apparent and threatening, and that it was not reasonable to conclude that the work could be performed with safety by the exercise of extra caution. It was sufficient for the plaintiff to aver that the means of appliances furnished Eugler by the defendants were unsafe, and that such defect caused the injury. Under such an averment it was only necessary for plaintiff to introduce evidence tending to prove that the appliances furnished to Eugler were defective or unusual, thereby increasing the ordinary risk attending the work, and that such defect was the proximate cause of the injury. If the defendants relied on the claim that the defect complained of was obvious and that the danger arising therefrom was of such a character as to raise the presumption that the plaintiff by undertaking to do the work assumed the additional or increased risk, then such claim was matter of defense. We therefore conclude that the petition was sufficient, and that the court committed no error in overruled the motion.

The next assignment of error has reference to the exclusion of evidence offered by the defendants. The defendants offered to show that the gutter complained of was as safe a place to work on as swinging platforms of the same width used by painters, and also platforms used by carpenters in putting cornice on buildings. We cannot see how this evidence could have enlightened the jury, and it might have had the effect to mislead them. Such platforms are always constructed some distance from the walls of the buildings, and in this way the danger of a workman losing his balance by coming in contact with the wall does not exist. When the projection or platform is constructed against the wall of a building and it is not wide enough for the workmen to turn around without coming in contact with the wall, then the danger of falling is materially increased. This is a matter of common knowledge. This shows the inapplicability of the ■evidence. This kind of evidence could only have been admissible upon the idea that as swinging platforms of no greater width than the gutter were used without material danger to workmen, this fact was some evidence that deceased fell from the gutter through his own carelessness or inattention, or that the gutter as constructed was reasonably safe. If this was the purpose or supposed effect of the testimony we .are unable, for the reasons stated, to see its applicability, or relevancy. We will have to rule this assignment against the defendants.

The third assignment challenges the sufficiency of the evidence to authorize a recovery. There are three grounds relied on in support of this assignment. First. That the evidence failed to show that Fugler fell from the gutter, or if he did fall, that the fall was traceable to any act or omission of the defendants. Second. That the perils of working in the gutter were so obvious that Fugler was bound to take notice of them, and that by undertaking to do the work he assumed the risk as an incident to his employment. Third. That under the evidence the gutter was a safe place to perform the work required of Fugler. There is another question which we will also consider in this connection. The court, on motion of the defendants instructed the jury that if they found that such work was usually done either from a scaffold or from a gutter, then the finding should be for the defendants. It is now claimed that all the evidence tended to prove this fact, hence the verdict was against the instruction. The determination of this assignment requires an ■examination of the evidence.

There were four light and air shafts constructed in the building. These shafts extended from an opening in the floor of the second story to the roof. They were intended to afford light to the storerooms on the first floor and ventilation for the rooms in the second ■and third stories. The tops of the shafts were to be left open, and the bottoms were to be covered with .glass. In order to protect the premises from ram and snow a gutter was constructed around the base of each shaft. This gutter projected from the sides of the shaft and it was fifteen inches wide and about five or six inches deep. The sides of these shafts were to be covered with flooring. The deceased and another carpenter by the name of Schmidt, were required by the defendants to do this work. Before commencing on the first shaft the deceased and Schmidt, under the orders of the defendants’ foreman, began to erect a scaffold from the ground floor to the base of the shaft for the purpose, as Schmidt said, of doing the work assigned to them. One of the defendants forbade the ■construction of the scaffold, and he told the workmen that they could either do the work by standing on the gutter or they could quit. Thereupon the deceased and Schmidt began the work as directed, and they so continued until they finished the work assigned to them on three of the shafts. The deceased was at work on "the fourth shaft and while standing on the gutter, he fell head first to the floor below. Schmidt described the accident as follows: “He (Fugler), stood on-this projection of something like seventeen inches. As a matter of course there would be a reduction after the sheathing was on. Now, he was in this angle here and we were right close together, and I was over in that angle there. He was standing in this shape and had not room to turn in all the way. He had his back towards the studding stooping down, nailing a piece on top of another, and while he raised up, reaching for another piece of stuff, — as a matter of course while he stooped to nail the butt against the studding he balanced over head foremost and fell from the second story on the first floor. I saw him drop off. I saw him fall off.” The proof showed that Fugler was between seventeen and twenty inches across the shoulders. Schmidt was interrogated further as to the manner in which this kind of work was usually done.

The following question was propounded to- the witness by the court: “Q. I ask you how that kind of work is generally done,,that you were engaged in at the time Mr. Fugler met with the accident? A. The work we started on when we should put up a scaffold, is work that is done from a scaffold.”

■ The examination was continued by the plaintiff’s attorney. “Q. I will ask you whether a careful man might not have succeeded in doing it (the work) without being injured, without a scaffold? That is, that he might have succeeded in doing it? A. Oh, he might.”

On his cross-examination, the witness further testified: “Q. And it is a fact, isn’t it, that when there is a projection in the first floor such as you had,, that the carpenters will do the work from the projection sometimes? A. If they are compelled to; yes, sir.

“Q. Have you never seen it done before? A. No, sir.

. “Q. Then how do you know that it is done usually? A. I done it from a scaffold.

“Q. How do you know, then, if you never saw this kind of work done before? A. I never saw it done without a scaffold.”

That Eugler fell from the gutter while engaged in the work assigned to him there can be no dispute. The jury found that the gutter was an unsafe place to do the work required of the deceased, and that his fall was attributable to this. This finding is questioned by the defendants on the ground that there is no substantial evidence to support either proposition. In this we think they are mistaken. The evidence shows that Fugler was required to work on a projection extending only fifteen inches from the side of the shaft. In order to do the work he had to use both hands; to stand with his back or side to the wall, and to reach behind him for the pieces of plank he was using in boarding up the shaft. The statement of these physical facts is sufficient to show that the danger attending such work was much greater than it would have been had a scaffold been erected. If a scaffold had been built it would have stood out from the wall, thereby affording ample room to turn around without coming in contact with anything. It was not the narrowness of the gutter that rendered it dangerous, but the close proximity of the sides of the shaft.

As to the other branch of the finding, it is true that there is no positive evidence as to the direct cause of the fall; however, there is no evidence that it was caused by the inattention or recklessness of the deceased. In the absence of any such testimony, the presumption is that he was in the exercise of ordinary care. Buesching v. Gaslight Co., 73 Mo. 219; Soeder v. Railroad, 100 Mo. 673; Schlereth v. Railroad, 96 Mo. 509; Schultz v. Moon, 33 Mo. App. 329. The strong probabilities are that some portion of the deceased’s body came in contact with the side of the shaft, thereby causing him to lose his balance. The physical facts demonstrate this very clearly. He was a large man and it was not possible for him to turn around in the gutter without striking some portion of his body against the sides of the shaft. That this would likely cause him to lose his balance, is a matter of common knowledge. It is undisputed that he was a man of good habits and pérfectly healthy, therefore, it is not at all probable that his fall was brought about by physical or mental ailments,

But it is urged that if it be conceded that the projection was unsafe, and that by reason of this Fugler lost his life, yet there can be no recovery, because , the defect was obvious, and that as the deceased continued to work' with knowledge of the defect, he assumed the increased risk or hazard attending his employment. On this branch of the case the court instructed as follows: “If from the evidence the jury believe that Fugler was an experienced carpenter at and before the time when he fell from the projection described by the witnesses, that he was employed by defendants by the hour, as an experienced workman; that before beginning the work at which Fugler was employed when he fell, the said Fugler knew that it was hazardous to do such work standing on.the projection described by the witnesses, and that the danger of so doing the work was apparent and threatening; that it was not unusual for builders to do such work in that way, then, although the jury may also believe that Fugler was directed by the defendant, Batermann, to do said work from said projection, the jury must find for defendants, if they also believe that when defendant Batermann made said requirement, he also gave to Fugler the option of quitting the work entirely.’’

We think this instruction is substantially correct. The defendants object to that portion in italics. The rule is that even though defects in machinery or other appliances are patent and known to the servant, yet if the danger attending the use of such appliances is of such a character [that the machinery can safely be used by the exercise of care, caution and skill, the servant does not in such a case assume the risk of such use. Conroy v. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 514; Thorpe v. Railroad, 89 Mo. 650; Delvin v. Railroad, 87 Mo. 545; Bridges v. Railroad, 6 Mo. App. 389; Dale v. Railroad, 63 Mo. 455; Huhn v. Railroad, 92 Mo. 440; Stephens v. Railroad, 96 Mo. 207; Soeder v. Railroad, 100 Mo. 673; Wood’s Master and Servant, sec. 359.

The earlier decisions in this state held to- the doctrine that where the defects in machinery or appliances were obvious and known to the servant, there arose a legal presumption that the servant assumed the increased risk attending the employment. But in the case of Conroy v. Iron Works, 62 Mo. 39, the supreme court modified this rule. Judge Wagner said: “When the defect is so glaring that, with the utmost care and skill, the danger is still imminent, so that none but a reckless man would incur it, then, if the servant will engage in the hazardous undertaking, he must be considered as doing it at his peril. But if the defective machinery or appliances, though dangerous, are not of such a character that they may not be reasonably used by the exercise.of skill and diligence, the servant does not assume the risk.”

In the case of Stoddard v. Railroad, 65 Mo. 514-520, the court reaffirmed what had been said in the Conroy case. It said: “It is true that the evidence tended to show that plaintiff had knowledge of the spring frog, and the lowness of the brake beam of the tender, and, that two hands, instead of four, were undertaking -to make up the train. But the question as to whether, with this knowledge, the action of the plaintiff in making up the train was of such a reckless character as to make it such contributory negligence'on his part as to deprive him of any remedy for the injury, was a question properly referable to the jury under proper instructions,”, etc.

The court, in Huhn v. Railroad, 92 Mo. 440, adhered to the same rule, and restated it in a very clear and succinct manner, as follows: '“It has been several times held by this court that, where the instrumentality with which the servant is required to perform service is so glaringly defective that a man of common prudence would not use it, the master could not be held responsible for damages resulting from it. But, if the servant incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury; or, where it is reasonable to suppose that it may be safely used with great care or skill, a different rule applies. In such cases mere knowledge of the defect will not defeat a recovery. Negligence on the part of the servant in such cases does not necessarily arise from the knowledge of the defect, but it is a question of fact to be determined from such knowledge and the other circumstances in evidence.”

In Stephens v. Railroad, 96 Mo. 207, we find the same rule laid down. The opinion quotes, with approval, the following from Thompson on Negligence: “If, therefore, the master orders the servant into a situation of danger, and he obeys and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose.” 2 Thompson on Negligence, sec. 975. In the opinion, the court,said: “There may be cases where the servant is ordered to do a particular act, and the order is so unreasonable, and the act so manifestly dangerous to life and limb, that the court, on the evidence, should declare the servant guilty of negligence in obeying the order of the master, and should direct a nonsuit. The general rule, however, is that the question is one for the jury.”

We might quote from other cases, but the foregoing will suffice. The rule to be deduced from them is, that the servant does not assume the risk of attempting to use machinery or appliances furnished by the master, though obviously defective, and their use be attended with increased risk, unless such danger or risk is apparent, threatening or imminent.

It 'may be true that the cases cited, as to their facts, are dissimilar to the present case, but, if the principle of law stated is applicable, it becomes our duty to apply it without question. The rule has become too firmly rooted in the jurisprudence of the state to be questioned by us. That the gutter upon which Eugler was required to do the work, was an appliance within the meaning of the foregoing decisions, we do not think, can be fairly called in question. By order of the defendants it was made to take the place of a scaffold ; that the latter would have been regarded as an appliance, no one could question.

But, even though the gutter be treated as an appli•ance, the doctrine announced by the foregoing cases is not applicable, if all the evidence in the case was to the effect that the work which Fugler was required to perform was usually done either from a scaffold or the gutter. If such was the condition of the proof, we would be compelled to hold that the danger assumed by the plaintiff’s husband was the usual risk attending his employment, because a usual method had been'adopted for its performance; and, that, in the absence of any testimony that the guttering was faulty in its construction, the plaintiff could not recover; but, as we have seen, the plaintiff’s evidence tended to show that such work was usually done from a scaffold only, and the jury, under proper instructions, found this to be a fact. The jury also found that the performance of the work, from the guttering was unusual and extra-hazardous, and they also found that, the danger attending the use of the gutter was the proximate cause of Fugler’sdeath, and that such danger was not threatening,, immediate or imminent, it only remains for us to say whether the performance of the work in the manner-required by defendants, was so manifestly dangerous to life and limb, that the trial court ought to have directed a nonsuit instead of submitting the issue to the jury. This we cannot do. Schmidt testified that, by the exercise of good care the work might be done by standing on the gutter, and the fact that he and Eugler completed three of the shafts without injury to either, has-some tendency to prove that the danger was not imminent or threatening.

The plaintiff’s instruction made the defendants-liable, if the projection “was an unsafe place.” The defendant’s fifth instruction rendered them liable if the jury found that projection “toas not a reasonably safe” place. The contention is that the use of the words “an unsafe place” was prejudicial error: that the words “not a reasonably safe place” were correct; that the instructions thus given were, inconsistent, and they were likely to confuse or mislead the jury. The-use of the word unsafe in the plaintiff’s instruction implied that it was the duty of the defendants to-furnish a safe place for Eugler to do his work, and not a place that was absolutely safe as contended by the defendants. This instruction however, is subject to criticism, and if it stood by itself we are inclined to the opinion that it would amount to reversible error, although the supreme court in Bowen v. Railroad, 95 Mo. 268-276, approved an instruction which made use of the words “unsafe and insecure.” However, this particular objection was not made to that instruction. It seems to us, if there were no other instructions qualifying the words used, or explaining the obligation of the defendants in this respect, the jury might have concluded that it was the duty of defendants to furnish a place for Eugler to work that was absolutely safe. Whatever doubt there might have been in the minds of the jurors as to the true meaning of the plaintiff’s instruction, was removed or explained by the defendant’s fifth instruction. This answered the requirements of the law. Owens v. Railroad, 95 Mo. 169; Dougherty v. Railroad, 97 Mo. 647; Forster Mfg. Co. v. Guggemos, 98 Mo. 391.

The last assignment of error involves the correctness of the court’s instruction as to the measure of damages, which reads: “The jury are further instructed that, if they find a verdict for the plaintiff herein, they will assess her damages at such sum as they may believe from the evidence she sustained from the death of her husband, not exceeding the sum of $5,000, and in estimating the same they will take into consideration what they may believe from the evidence would have been the value of her support from him from the time of his death, during the time he would probably have lived and supported her.”

The defendants complain that this instruction is erroneous because it was not qualified as required by section 4427, Revised Statutes, 1889. This section concludes as follows: “And in every such action the jury, may give such damages, not exceeding $5,000, as they may deem fair and just with reference to the necessary injury resulting from such death, to the surviving parties who may he entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.” The evident intention of the legislature was to confine compensatory damages to the necessary injury to the survivor resulting from the death. The supreme court in the case of Parsons v. Railroad, 94 Mo. 286, in construing this statute, decided that whenever the circumstances of a case afforded a safe standard by which compensatory damages could be approximately ascertained, such standard should be given to the jury. The instruction complained of is in harmony with what the court said in the Parsons case, and it is so worded as to afford the defendants no ground of complaint. It confines the damages to the necessary injury. As was also decided in the Parsons case, this section of the statute also conferred upon the party suing, the right to exemplary damages in any case wherein the circumstances would have authorized such damages at the suit of the deceased, had he survived the injuries. In the case at bar, there was nothing to show that the acts of the defendants were wanton, or willful, therefore the court had no right to instruct on any such theory. Even if it was a proper case for exemplary damages, we are at loss to know how the defendants were prejudiced by such failure. We will have to rule this assignment likewise against the defendants.

Finding no error in the record the judgment of the circuit court will be affirmed. Judge Thompson concurs in this opinion. Judge Rombaubb, who dissents, is of opinion that this decision is contrary to the decisions of the supreme court in case of Aldridge v. Furnace Co., 78 Mo. 558; Devitt v. Railroad, 50 Mo. 302 and other cases. It is therefore ordered that the cause be certified to the supreme court for final determination, and that until so determined all further proceedings therein be stayed.

Romeauer, P. J.

(dissenting). — The main facts of the case.are stated in the opinion of my associates. As, however, I have come to the conclusion that the law furnishes no right of recovery on the uncontroverted facts, I shall briefly state them in a slightly different order, so as to more conveniently apply the law to the conceded facts.

The air shaft in which the accident happened was one of four identical in shape. They were eight feet by ten feet in the clear and ran from the second story of the building to the roof which was several stories' higher. The decedent and another carpenter were engaged in boarding the sides of these shafts. While nailing on the boards they stood on a plank securely fastened over a gutter, which plank according to plaintiff’s evidence was from fifteen to seventeen inches swide. This gutter and plank ran along the four sides of the air shaft, leaving an open hole in the center about sixteen feet deep, between the first and second floor, designed to admit light to the floor below through plate glass which was to be placed over it when the shaft was completed. The men in boarding up the shaft stood on this plank and nailed the boards as far as they could reach, then they built a platform to nail them higher up. There was some evidence on the part of the plaintiff that this was the usual way of doing such work, although her witnesses did not agree on that point.

The decedent was an experienced carpenter of mature age. He was not employed for any definite time, but he and others were working on the job at so much an hour for the time actually engaged. The decedent and his mate had worked on this work about four weeks,, had completed three of the shafts, and when boarding the sides of the last shaft the decedent who was standing on the plank above mentioned lost his balance, fell into the open hole, and received injuries resulting in his death.

There is no pretense in the evidence, that the defendant was working under different conditions in this shaft than those in which he had worked in the other three; nor that the plank in this shaft was not perfectly sound and firm; nor that his employer had any knowledge touching the danger of the place superior to that which he had; nor that the danger, whatever its character, was not perfectly obvious to a man of the most ordinary understanding; nor that it was not glaring, immediate, continuous and the same all the time. The naked question presented by this case seems to me, to be whether an experienced workman of mature age falling from an elevation, is entitled to recover from his employer for injuries sustained, on the sole ground that in the opinion of the jury the place on which he is required to stand in doing the work is not wide enough. As, according to the simple laws of gravitation, a man can always fall from a higher to a lower place, the question, taking the temper of juries into consideration, is practically narrowed down to the inquiry, whether the law which requires the master to furnish to the servant a safe place means a place from which the servant cannot fall off. If this is the law, then practically the master becomes an insurer of the servant’s safety, as far as the danger of the place where the servant is required to work is concerned. This is such a radical departure from the law on that subject, as commonly understood, that I cannot assent to it without being convinced by more cogent reasons than I find in the opinion of my associates.

We have recently had occasion, on a careful consideration, to formulate the law applicable to the relative rights and duties of master and servant, when the servant is injured owing to patent and obvious defects in the place where he is required to work. Flynn v. Bridge Co., 42 Mo. App. 529. The general rule on that subject, recognized both in England and in every state of the American union, is that, if a workman is employed on a dangerous job, or to work in a service of peril, and if the danger belongs to the work itself, or the service in which he engages, he. will be held to all the risks which belong to either. But where there is no danger in the work or service in itself, and the peril grows out of extrinsic causes or circumstances tvhich cannot be discovered by the use of ordinary precaution and prudence, the employer is liable precisely as a third person, if the loss or injury is caused by his neglect or wcrnt of care. 4 Wait’s Actions and Defenses 417, and cases cited. To discuss even only a considerable number of the numberless cases in which this proposition, seemingly simple, has been applied to the facts presented by the individual case, would swell this opinion far beyond the legitimate limits of such a paper. I must be content with the simple statement that an extensive reading on this subject, has failed to disclose to me a solitary decision which would render the master responsible to the servant under the conceded facts of this case.

There seems to be an intimation in the opinion that the law governing the liability of the master to the servant, is different in this state from what it is in other jurisdictions. I shall briefly examine the cases ■cited. The first is Conroy v. Iron Works, 62 Mo. 35. In that case the plaintiff was injured by the timbers of .a bridge giving way, owing to insecure fastenings. It was in evidence that two days previous to the accident the plaintiff had called the attention of the superintendent to the defect, and was told that the proper repairs would be made. The plaintiff was nonsuited in the trial court and the only point in judgment was whether he had been properly nonsuited. Judge Wagner, in an opinion reversing that judgment, said: “The timbers in the present case, though loose and not properly fastened, had been used and were still being used, and the plaintiff might have supposed that, by using care, they would be entirely safé. He had brought their doubtful character to the attention of his superior, and had received a promise that the necessary repairs should be made. He had a right to presume that the master would be mindful of his rights, and would take the proper steps to secure his safety. The court, we think, erred in taking the case from the jury.77

In Stoddard v. Railroad, 65 Mo. 514, the evidence tended to show that three hands were necessary to do the work of switching; that one became disabled and the yard master, who was informed of that fact, neglected to put another one in his place; that the engineer, who was given to intoxication and had been drinking the morning of the accident, backed the engine without a signal and in a careless way; that the brake or beam of the engine was lower than was usual and safe; that as a concurrent result of these facts the plaintiff, who was a brakeman engaged in making up trains, had his foot caught in a spring frog, and was knocked down by the brake beam and seriously injured. The court decided that these facts furnished substantial evidence to enable the plaintiff to go to the jury, and that he was not debarred from recovery because he was aware of part of these facts, and that is all that that case decides.

In Thorpe v. Railroad, 89 Mo. 650, the injury to the plaintiff, a switchman, occurred by the temporary insufficiency of the number of men employed in switching the cars, as in the proceeding case. The plaintiff knew, or had reason to know, the number of the crew. The court (by Ray, J.) said: “We think we ought not to say on the evidence before us, as a matter of law, that plaintiff waived the discharge of the defendant’s duty to him to furnish sufficient help, and that he voluntarily assumed the particular risk or danger that caused his injury, or that the evidence is such as conclusively indicates a state of facts and circumstances that require him to peremptorily abandon and discontinue his said employment.”

In Devlin v. Railroad, 87 Mo. 545, the judgment, which was in favor of the plaintiff in the trial court, was reversed. The plaintiff was a locomotive engineer and was injured by the engine being thrown from the track by the breaking of a defective rail. One of the questions was whether he was debarred from recovery because he knew the general condition of the track; and the court (by Black J) held, “he was not bound to quit the service, nor did he assume all risks from want of repair, unless the track was so far out of repair to his knowledge, that it would be necessarily dangerous, to the mind of a prudent person, to run an engine over it.”

In Bridges v. Railroad, 6 Mo. App. 389, the injury was caused to a fireman who was on an engine which owing to a defective and badly worn flange was thrown from the track. The evidence conceded that the fireman knew that the flange was worn. A demurrer to the evidence was overruled. The decision rests on the following statement in the opinion of the court (by Hayden, J.): “The employee, under similar circumstances, in order to retain the employment, may be perfectly willing to take the increased hazard; and if here the danger was immediate, and the plaintiff knew this, he ought not to recover. But, if the flange was so worn as to be more than ordinarily dangerous, yet if it was a matter of skill and judgment to know how much wear and tear it would stand, the plaintiff had a right, within certain limits, to rely on the skill and judgment of the defen dant. ”

In Dale v. Railroad, 63 Mo. 455, the action was by a fireman for injuries received in consequence of the unsafety of the railroad track. The defendant moved for a nonsuit on the ground that the plaintiff knew the condition of the track. The proof was that the plaintiff had observed that the track was rough, and inferred that it was a bad track, from the bumping of the ears in passing over it. Napton, J., who delivered the opinion of the court refusing a nonsuit, said: “It would be a harsh conclusion to say that the plaintiff, who was merely a fireman, would be required to abandon his employment upon a merely speculative apprehension that the defendant had not seen, and would not see, that the road over which their locomotive and cars passed, was properly and safely constructed. The immediate cause of the accident was a defective joint of the rails of which he could have known nothing, as a fireman passing over the road, and which the defendant might have known by the exercise of proper diligence.”

In Huhn v. Railroad, 92 Mo. 440, the plaintiff, a switchman, was injured owing to a defective blocking of the guard rail. He knew that the guard rail was not blocked. There was a demurrer to the evidence, which was overruled, and the plaintiff recovered judgment. Black, J., in delivering the opinion of the court upholding the judgment, said: “It has been several times held by this court, that, when the instrument.ality with which the servant is required to perform service is so glaringly defective that a man of common prudence would not use it, the master could not be held responsible for damages resulting from it. But if the servant incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury; or where it is reasonable to suppose that it may be safely used with great care or skill, a different rule .applies. In such cases a mere knowledge of the defect will not defeat a recovery." Negligence on the part of the servant, in such cases, does not necessarily arise from his knowledge of the defect, but is a question of5 fact, to be determined from such knowledge, and other ■circumstances in evidence.

Stephens v. Railroad, 96 Mo. 207, was twice before the court. . A judgment in favor of the plaintiff was first reversed and the cause remanded, but was upheld on the second appeal. The question here involved did not properly arise on either appeal, the •only question being as to whether the master was liable for injuries caused by a negligent order given by his vice-principal to a servant, and whether the dangerous •character of the order which the servant was required to execute on the instmt was so obvious as to require him either to refuse obeyanee, or execute it at his peril.

In Soeder v. Railroad, 100 Mo. 673, a brakeman was thrown from the top of a car and killed, owing to the jumping of the ear when passing over a defective rail. The suit was by his widow. There was no positive evidence that the decedent knew of this defect; but the court, speaking through Bbace, J., assumed that his mere contb manee in the employment áfter the knowledge of the defect, on the authority of Huhn v. Railroad, supra, was not sufficient to debar him from recovery.

After going over these cases, I am still at a loss to understand how the points decided in either of them furnish any warrant for the conclusion of my associates in this case. It is not the declarations of the law which may have been made in one or the other, but the application of the propositions stated to the points in judgments which make the law, when we speak of it as founded on precedents. The- great difference between all of these causes and the, case at bar is, that here the unavoidable inference arises from the uncontroverted facts, that the servant not only knew the defect, if such it may be called, but also knew the attendant and continuous danger arising from it to him, much better than the master could possibly know it. It was the servant and not the master who continually moved on the plank and knew whether he could safely handle his body on it without losing his balance. The relative safety of the -appliance did not depend on circumstances of which the master had control, but of such as were within the exclusive knowledge and control of the servant. The case falls wholly outside of the principle that the servant had a right to rely on the superior knowledge of the master.

What is meant by a safe place which the master is required to furnish his servant to work in or about, is not the obvious or patent safety or unsafety of the place; because, in the nature of things, many kinds of labor have to be performed under conditions relatively unsafe and often dangerous. What' is meant by it will best appear from cases illustráting the proposition. Thus in Perry v. Marsh, 25 Ala. 659, a slave was killed while hired out. The building in which he was employed was in a ruinous condition and fell. It was held that the hirer, who was owner of the building and knew its defects was responsible. So it was held that the master was liable to a servant who received a gun shot wound while tearing down a fence, the master knowing that the work would be forcibly resisted, and concealing the fact from the servant when he put him to work at it. Baxter v. Roberts, 44 Cal. 187. So in Chicago & Northwestern R’y Co. v. Jackson, 55 Ill. 492, it was held that a brakeman was entitled to recovery, for injuries received in descending a defective ladder which had some rounds missing, there being no positive evidence that he knew of the defect. A fireman’s administrator was held to be entitled to recover for his death caused by the explosion of a defective boiler, he not knowing of the defect. Columbus, etc., R’y Co. v. Arnold, 31 Ind. 174; Cumberland & Pennsylvania R’y. Co. v. Moran, 44 Md. 283. So in Keegan v. Kavanaugh, 62 Mo. 230, a widow was held entitled to recover damages for the death of her husband, a hod carrier, who was killed by a falling embankment which was in a crumbling condition and not shored up. .The decedent had indicated some reluctance to go below the bank, but did go down on the positive order to do so, given by his employer. Judge Napton, who delivered the opinion said: “If the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk. But if it is a ease where no such obvious risks are incurred, and where it was fair to presume that the employee had been guilty of no negligence, the rule of', law, as well as common sense and justice, is that the master is responsible for damages, if any ensue.”

It may be said that the question whether the danger was apparent was, in this case, submitted to the jury in an instruction of the court; but how can a question be submitted to the jury for their finding, concerning which there can be no possible controversy. The instruction says apparent and threatening, as if the court considered that a danger perfectly apparent was not enough, but that it must also be threatening, whatever that may mean in this connection. It is. a matter of daily experience, of which many courts have even taken judicial notice, thatasubraission of a case of this class to the jury, always leads to the same result. To-relieve the distress of others is a commendable impulse,, which juries are but to apt to follow, although they must necessarily do it at the expense of others. They are apt to forget that judicial charity under the guise of law, and at, the expense of others, is but an act of licensed oppression.

I am of opinion that the decision in this ease is. directly opposed to the decision of the supreme court in Aldridge v. Furnace Co., 78 Mo. 559; to Devitt v. Railroad, 50 Mo. 302, and other cases. The question involved is of the greatest importance to men engaged in mechanical and industrial pursuits, and the case-should be certified to the supreme court for final determination.

Per Curiam.

In this cause, transferred to the-supreme court from the St. Louis court of appeals, we-approve the opinion rendered there by Judge Rombauer, and accordingly remand the cause to that court with directions to reverse the judgment of the circuit court;

Judge Barclay not voting.  