ON EEHEAKING-.
Ellison, J.A further consideration of this case has satisfied us with our conclusion as originally announced.
The petition is not fairly subject to the criticism made by defendant. We may freely concede the propositions of law advanced by counsel, to the effect that, if the petition, on its face, states those facts from which there necessarily arises the conclusion that the injury has resulted from plaintiff’s contributory negligence, or, his assumption of the risk of the act from which the injury resulted, he can not recover, unless he goes further and states further facts which would qualify or explain those already stated and thus relieve him from the rule. But the facts concerning the allegations of the petition are not as defendant has assumed them, or interpreted them to be.
The pleader, in proceeding to state plaintiff’s cause of action, alleges that the defendant negligently failed to furnish a sufficient number of men to lift the rails; that three men were all that were furnished, when, in truth, at least four men were necessary to do said work properly and with reasonable safety, etc. The plaintiff himself will, of course, he held bound by what is stated in his behalf in his petition. But the foregoing and similar allegations are not what defendant assumes them to be. The petition does not state that at the time plaintiff proceeded to do the work with two other men, *241he knew the number was insufficient. Language, to be fairly and fully understood, must necessarily be construed with reference to the time and place of its utterance. The petition was, of course, drawn after the happening of the injury and the plaintiff has done no more, by the allegations which he makes therein, than state the facts as they existed at the time of the accident. His statement of what the facts were, presupposes his knowledge of the facts at the time he makes the statement, but it by no means follows that he knew such facts when the acts, upon which the case rests, were transpiring. We may well assume that plaintiff knew, at the time he was engaged in the work, of the number of men assigned with him to do the work, but we can not assume, from the face of the petition, that he knew, at that time, this was an insufficient number. Our conclusion is that the petition affords no sound basis for the argument advanced.
2. As to the evidence, we may concede that plaintiff had reason to believe three men were insufficient for the work, and that there was risk in undertaking the work with such limited force. But this is not enough to destroy plaintiff’s case, as a matter of law. The fact that the force was insufficient must have been so obvious as to prevent an ordinarily prudent person from engaging in the work. If, therefore,-the danger or risk in doing the work was not such as to threaten immediate injury, and, though in fact the force was insufficient yet sufficient enough to lead an ordinarily prudent person to believe that the work could be safely done by using care and caution, then, if, in the exercise of such prudence and care and caution, he proceeds to do the work, he is not debarred from recovering from the master for the injury received in such work. Hamilton v. Mining Co., 108 Mo. 364; Swadley v. Railroad, 118 Mo. 268.
*242In the first of these cases, the following statement of the rule from 1 Shearman & Redfield on Negligence, sections 211, 212, is quoted with approval: “The true rule, as nearly as it can be stated, is that the servant can not recover against his master for an injury suffered through exposure to danger from defects of which he had notice, if, under all the circumstances, a servant of ordinary prudence, acting with such prudence, would not have continued such work under the same risk. * * * The test of prudence in these cases, * * * is that which a prudent servant of the same class using such prudence and judgment as such persons usually possess, but no more, might reasonably be expected to apply to the particular ease.” The instructions which were given in the case were in accord with the cases from our own reports, to which attention was called in the original opinion, and with the two Missouri cases cited herein.
The défendant has directed our ¡attention to some adjudications from other states, particularly Eddy v. Rogers, Texas, 1894, which support the criticism of the theory upon which plaintiff was allowed to maintain this action. In that case, the following rule is stated and applied to a case much like the one at bar, viz: “Where the servant has equal knowledge with the master of the danger incident to the work, he takes the. risk upon himself, if he goes on with it.” In some respects that may be said to be a proper statement of the law, as applied to the facts appearing in many cases. But it is a deceptive statement when applied to' other cases — to a case like the one under consideration. It is not necessary to discuss in this, case what equality of ground the master and servant occupy, as to judgment on the sufficiency of appliances for certain work. It is conceded by the plaintiff that four men could have handled the iron rails with reason*243able safety — the defendant contended that three men could. So, then, we may say the case concedes that four men could do this particular work with reasonable safety, and the question is: “Was it so obvious and patent to plaintiff, as a man of common prudence, that three men could not do the work safely, by being careful and cautious, as to deter him, in the exercise of prudence, from proceeding with the work?” That is a question about which persons may differ, and as such, it was proper to submit it to the jury for determination. We are, therefore, of the opinion that the rule quoted from the Eddy case, when applied to facts of the nature of these before us, should be qualified by the proviso, that the danger of which the master and servant have equal knowledge must be such as to render it obvious to a reasonably prudent man, in the exercise of prudence, that such work can not be done safely by being careful and cautious.
The opinion of Judge Rombauee in Fugler v. Bothe, 43 Mo. App. 62, which has been recently fully indorsed by the supreme court, is in no way opposed to the view we take of this case, as it is made by the facts which appear in the record. Judge Rombauee made no criticism of the following quotation which he took from Huhn v. Railroad, 92 Mo. 440: “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.” In the Hulm case and many of the other cases of like character, it was not pretended but the master knew of defective instrumentality which caused the injury — in other words, the eases concede that the master and servant had “equal knowledge.” The facts in Fugler v. Bothe make a *244case altogether distinguishable from the case in hand.
It is not necessary to make any further mention of that part of defendant’s contention as to the distinction and difference between an assumption of risk and contributory negligence on the part of a servant, than to say that it is partly disposed of in what we have said as to the'petition. There are cases where a difference between these is quite easily seen. There are cases where the distinction is not so apparent, when, indeed, it becomes too subtle to be of practical importance. In this case, if there was anything to prevent plaintiff’s recovery, it was contributory negligence, and that was pleaded as a defense and submitted to the jury.
In our opinion, the evidence as to the number of men which had been employed by defendant in this work was properly admitted. It had a tendency tó show the number necessary, and likewise bore on the question of defendant’s negligence. We are satisfied that a case was made for the verdict of a jury and that the trial was properly directed by the court. Judgment affirmed.
All concur.