The opinion reverses the judgment and remands the cause on the sole ground that the trial court erred in giving instruction "1," given on its own motion. This conclusion is reached by holding that "under none of the questions submitted by the trial court in instruction numbered 1, as the only ones to be considered, was the jury required to consider, much less find, that the method employed in loading the holes was not a reasonably safe method. Instruction numbered 1 calls for a comparison between the method of loading and that of lowering the explosives by means of a cord for the purpose of determining negligence. That was not the question. Both methods might have been reasonably safe or otherwise. Instruction numbered 1, therefore, is error in that it does not submit the only question that was to be considered, viz: Was the method used a reasonably safe method? The conflict, therefore, between instructions numbered 1 and 1-A is such as to mislead, rather than guide, the jury." Instruction numbered 1-A was given on respondent's request and is held, in the majority opinion, to have submitted in a correct way the question whether the method used was reasonably safe.
It will not be denied that instructions are to be read together when they are not so drawn as to preclude such a course, under certain other rules held valid by this court. Instruction numbered 1 was given by the trial court to clear away certain grounds of recovery which were abandoned or which were not supported by any evidence. After withdrawing certain issues it states that three questions are submitted, details them and closes with these words: "And upon these questions the court gives you the following instructions:" This is followed by other instructions given by the court, and then by the instructions given on the request of respondent and appellant, in order.
In view of the specific reference in Instruction 1 to the instructions subsequently given as express directions *Page 533 for the jury to follow on the question of liability it would seem that it is particularly appropriate to read Instruction 1, merely a general statement of issues, in connection with the particular instructions given on these issues and expressly referred to in Instruction 1 as containing the directions to be followed by the jury in determining the question of liability. While it will require some space, it is appropriate to set out instructions numbered 1 and 1-A together, so that the question may be more clearly seen. So set out they read as follows:
"1. The jury is instructed to disregard the following specifications of alleged negligence in plaintiff's petition, and you will not consider same:
"First: The allegation that defendant dropped cartridges into the hole without breaking said cartridges up or open.
"Second: That defendant failed to instruct plaintiff or advise him or warn him to step back out of harm's way when cartridges were being dropped into the holes.
"Third: That defendant permitted the cartridges or powder to become old or damp or to freeze or deteriorate.
"Fourth: That defendant placed in each hole percussion caps with long pieces of fuse filled with high explosives.
"Fifth: That defendant provided and permitted to be used a wire with iron, steel or other weights attached to the end of it for measuring depths in said holes, and that the use of same was likely to generate or cause sparks.
"You are further instructed that the court submits for your consideration the following questions only:
"First: Whether defendant was negligent in dropping the cartridges into the hole instead of lowering them with a cord.
"Second: Whether the explosion resulted from the method used in dropping the cartridges and was caused thereby. *Page 534
"Third: Whether the explosion was due solely to accident without negligence on the part of defendant; and upon these questions the court gives you the following instructions:
"1-A. The court instructs the jury that the master is required to use ordinary care and to adopt reasonably safe methods in the conduct of its business, and that, in the use of high explosives ordinary care is such care as a reasonably prudent man would use in view of the hazardous nature of the business, and if the jury shall find from the evidence that plaintiff was employed on and about August 26, 1916, by defendant, as a laborer in the quarry mentioned in the evidence, and was inexperienced in the handling of high explosives, and if the jury shall find that holes had been drilled to a depth of approximately eight feet into which a high explosive, to-wit, Trojan powder, was being loaded, and if the jury shall find that plaintiff was instructed by defendant to assist in these operations, and at the time of the explosion mentioned in the evidence was, pursuant to the instructions of defendant's foreman (if in fact he was so instructed), standing at or close to one of the said holes while same was being loaded, and if the jury find from the evidence that while so standing there, defendant's foreman caused to be dropped a cartridge of the said explosive weighing approximately eight pounds down the said hole and that said hole had in it at the time a considerable amount of said explosive, and if the jury find from the evidence that such method of loading the said hole under said conditions was not reasonably safe and that an explosion resulted therefrom and was caused thereby and that plaintiff was injured by the said explosion, and that, at the time he was in the exercise of reasonable care on his part, and if you further find that defendant knew or by the use of ordinary care as defined above, could have known, that such method was not reasonably safe, then your verdict should be for plaintiff." *Page 535
It is conceded in the opinion that Instruction 1-A is correct and unobjectionable. The part of the opinion already quoted shows that the ruling reversing the judgment and remanding the cause was grounded upon the propositions that Instruction 1, given by the court of its own motion, considered without regard to Instruction 1-A, (1) did not require the jury to find that the method employed in loading the holes was not a reasonably safe method; (2) "calls for a comparison between the method of loading used and that of lowering the explosives by a cord for the purpose of determining the question of negligence;" and (3) did "not submit the only question that was to be considered, viz: Was the method used a reasonably safe method?" The opinion then holds, upon these premises, that "the conflict, therefore, between Instruction numbered 1 and 1-A is such as to mislead . . . the jury."
As to the first of these ("1"), it is to be observed that Instruction No. 1 does not purport to submit anything to the jury. It is frankly and merely a preliminary instruction given to withdraw certain issues and catalogue those which survived. Certainly it cannot be maintained that such an instruction is erroneous simply because it fails to submit a particular issue to the jury when it does not purport to cover the case and authorize a verdict or submit any issue, or direct the jury as to the rules of law upon any issue but is expressly designed merely to enumerate the issues and explicitly refers the jury to the other instructions for the whole of the law of the case. If this sentence "(1)" of the opinion is intended as an essential part of the foundation of the ruling made and is sound, then it must follow that no instruction of any sort can be given in any case which does not submit to the jury the issues on the question of liability. It is confidently asserted that if the premise is correct, this conclusion cannot be escaped. That no such rule exists is too plain to require discussion. The same considerations dispose of the statement quoted under *Page 536 "(3)" next above. Doubtless the real point intended to be made is found under "(2)." Is it true that the recitation under "First" in Instruction 1 calls "for a comparison between the method used and that of lowering the explosive by means of a cord for thepurpose of determining negligence?" The opinion says it does, holds it thereby is brought into conflict with Instruction 1-A, and reverses the judgment and remands this cause for that reason. On its face the instruction calls for nothing. Under its plain language it submits nothing. In its closing clause, by the clearest and most necessary implication, it denies that it calls for anything or, of itself, submits anything, for "the purpose of determining negligence" or any other purpose. It does recite, merely, that one question is "whether defendant was negligent in dropping the cartridges into the holes instead of lowering them with a cord." Upon this issue, with the rest, Instruction 1 refers the jury to the subsequent matter as the "instructions" to govern them. Among those instructions is No. 1-A which the court holds correctly submits the issue in question, that of negligence. That instruction expressly requires the jury, before finding for respondent, to find that the method used in loading the hole "was not reasonably safe and that an explosion resulted therefrom and was caused thereby and that plaintiff was injured by the said explosion. . . ."
It is obvious that these instructions in no sense authorized the jury to find for respondent on a simple comparison of the relative safety of the method of dropping the explosive into the hole and that of lowering it with a cord and a finding that the former was less safe than the latter without regard to whether the former was a reasonably safe method. This is apparent from the fact that Instruction 1 authorizes no finding at all and Instruction 1-A authorizes no finding for respondent unless the jury find the method used was not reasonably safe in the circumstances. It is manifest that the method *Page 537 of lowering the explosives by a cord would have been safer than that which was employed. This was one of the methods of the general use of which there was evidence. There was also evidence tending to show that certain kinds of explosives of a granular nature were customarily poured from the cartridge into the holes where they were to be used. It was competent to show the practice in like circumstances. The court in settling the instructions had before it numerous requests of appellant. One of these was that the court should instruct the jury that "there is no evidence in this case that defendant was guilty of negligence in dropping cartridges into the holes, mentioned in evidence, without breaking said cartridges up or open, and you cannot consider this charge in plaintiff's petition or find in favor of plaintiff thereon." This was refused, but the court gave it in principle and, in part, in identical words under "First" in Instruction 1. Appellant also requested the court to instruct the jury that "there is no evidence in this case that defendant negligently dropped cartridges into the holes, without providing any meansof letting said cartridges down easily and safely into saidholes, and you cannot consider this charge in plaintiff's petition or find in favor of plaintiff thereon." This was refused, but it constituted the first appearance in the instructions asked of the mention, in conjunction, of the two methods. It was from this request that the court formulated the sentence now held fatal to the judgment.
It seems reasonably clear that (1) there was no error in the instruction in the respect in which it is criticized in the majority opinion; and (2) even were the majority opinion sound on that feature, yet it would be necessary to hold such error to have been invited and, therefore, no proper basis for the judgment ordered in this case. This covers the only ground upon which the conclusion of the majority is founded. The motion for rehearing should be sustained. Very respectfully I dissent. *Page 538