SEPARATE CONCURRING OPINION ON MOTION FOR REHEARING. I concur in the result reached by our Commissioner herein, but not in all of the language employed in the course of the opinion. The case is one by no means free from difficulty, but I am of the opinion that the evidence, when viewed in the light most favorable to plaintiff, as it must now be viewed, suffices to make the question of defendant's negligence one for the jury. It is true that the work prosecuted by the defendant, in the course of which plaintiff sustained his injuries, was of such nature as to cause the character of this ledge, upon which plaintiff was working when *Page 171 injured, to be changed, from time to time, as the work progressed; i.e. the slope and character of the surface of the ledge would be altered from time to time by the blasting out of rock therefrom. But though this be true, it does not necessarily follow that a recovery is precluded in this case upon the ground that the place where plaintiff was working at the time of his injury was one changing in character as the work progressed; for the suit does not proceed upon the theory of a negligent breach of duty upon the part of the master in failing to exercise ordinary care to furnish a reasonably safe place for plaintiff to work.
In Bennett v. Lime Co., 146 Mo. App. 569, 124 S.W. 608, in referring to the rule to be applied in those cases where the particular work to be prosecuted is one which renders plaintiff's place unsafe, or where the danger is transitory and passing only, and arises from the manner in which the work is being prosecuted rather than from the nature of the place itself, it is said, by NORTONI, J: "And, then, too, an element of non-liability frequently adverted to in such cases is the fact that the master has given the work entirely in the charge of the servant and permits him to perform it in his own way. In such circumstances, if the servant is injured as a result of a transitory peril which inheres in the work for which he was employed and is prosecuting, according to his own discretion, without a pointed direction orother specific negligence on the part of the master, it is frequently declared that the rule requiring a reasonably safe place does not obtain or that the servant has assumed the risk as one ordinarily incident to the employment." (Italics ours.)
This and other portions of the opinion in the Bennett case are quoted and relied upon by appellant here; but we think that the law as declared in that opinion is not fatal to a recovery herein, as appellant contends; for the evidence for plaintiff makes it appear that he was not injured as a result alone of a transitory peril inhering in the work, while he was prosecuting the same *Page 172 according to his own discretion, and "without a pointed direction or other specific negligence on the part of the master." The evidence is that when certain rocks had been loosened by blasting, and were lying upon this ledge, defendant's foreman gave a specific order to plaintiff to bar these rocks down, that is, to go upon the ledge and remove the rocks by means of a crow bar. The evidence is that this ledge, at the time, slanted at an angle of approximately forty-five degrees from the horizontal; and the rocks to be removed varied from small rocks to the large one which plaintiff was working at when injured. It cannot be doubted that by reason of the fact that the surface of the ledge at that particular time slanted as aforesaid, together with the character of the work, no little danger inhered in the work which plaintiff was thus required to perform. He did not go upon this ledge to perform the work voluntarily, or at his own discretion, but, according to the evidence, at the express command and direction of the foreman, the alter ego of the master. And we are of the opinion that, under all of the circumstances, the jury may with propriety find that it was negligence on the part of defendant's foreman to order plaintiff to perform this particular task in the particular way in which he was ordered and directed to perform it; and that if plaintiff was injured as a result of such negligence, while exercising such care for his own safety as a reasonably prudent man would exercise under the circumstances, then plaintiff may recover. This, we think, is particularly true in the light of the evidence tending to show that though danger inhered in the performance of the work, in the mode and manner which defendant, through its foreman, required plaintiff to perform it, defendant had at hand a perfectly safe means of performing the work.
It is argued with much force that in any event plaintiff was guilty of such contributory negligence as to bar a recovery herein. As to this it is necessary only to say that, though plaintiff was an experienced quarryman, we think we could not with propriety hold, *Page 173 as a conclusion of law, that the danger involved was of such character, and so obvious and iminent, that a reasonably prudent man, in the position of plaintiff, would have refused to do his master's bidding. In cases of this general character, i.e. where the servant, when injured, is in the performance of a task which he is expressly directed by the master to perform, he is not to be denied a recovery on the ground of contributory negligence if the circumstances are such that a reasonably prudent man might well conclude that he could safely perform the task by the exercise of reasonable or even great care on his part. (See Jewell v. Bolt Nut Co., 231 Mo. 176, 132 S.W. 703; George v. Railroad, 225 Mo. 364, 125 S.W. 196.)
With the concurrence of the other judges the motion for rehearing is overruled.
Reynolds, P.J. and Becker, J., concur.