ON MOTION NOR REHEARING.
ELLISON, J.Each party has asked a rehearing in this cause. Defendant, in support of its criticism of the foregoing opinion by the presiding judge, says that, as to fellow-servants, it is in “direct conflict with the decision of the Supreme Court in the case of Grattis v. Railway, 153 Mo. 380.” In view of such statement we have again looked into the, controversy.
In cases other than railroads (these being dangerous agencies now excepted by statute)- the master is not liable to a servant for injuries resulting from the negligence and carelessness of a fellow-servant. The difficulty in any given ease, is to determine whether the person guilty of the negligence is a fellow-servant of the person injured, as that term is defined and applied in law. In cases of corporations, all servants are fellow-servants in the sense that they are in the employ of a common master. But are they fellow-servants in the sense of the term when it is used in fixing liability, or determining non-liability of the common master? Whenever an injury *124happens by the negligent performance, or non-performance, of any of the master’s duties (sometimes called personal or positive duties) to the servant, then the master is liable. And 'the fact that he has delegated that duty to one of his other servants, high or low, will not excuse him. Eor, the law is that the master’s duties to the servant can not be laid aside by him, or put upon others in such way as to exculpate him when an injury happens by reason of their non-performance.
Where a corporation is the master, it necessarily must entrust this duty into the hands of servants. But these, while performing such duties, are not fellow-servants to other servants, in the sense of the law. And though the corporation has been as careful and painstaking as possible in selecting servants to perform its duties, yet if they should be guilty of a negligent act or omission, which hurts another servant, the corporation would be liable. Eor when it selects another to perform one of the personal duties which it owes to its servants, that other stands in its stead — Í3 its alter ego.
If I may so express it, the legal fact is that the master is an absolute insurer of the servant’s safety from any negligent act of his own; which, as I have just said, includes the act of him to whom he has delegated one of his positive duties. He does not insure the safety of the place to work, but he does insure that he will not be negligent in his effort to have it safe. The servant assumes the risk of the negligence of his fellow-servant, but never that of the master, or the master’s deputy, in the performance of his positive duties. The servant’s assumption of risk of his careless fellow-servant is contractual and is assumed on his part by his contract of service. But it would be against the policy of the law to allow*the master to contract against his own negligence in this as well as in other well-recognized instances. It makes no difference how low down in the scale of employment a master may go to find a servant to deputize to perform for him a duty to. the other *125servants. Whoever the master selects to act in his stead, becomes, as to that duty, the master himself.
What are the duties which a master 'owes to the servant ? Primarily it is his duty to furnish the servant a reasonably safe place in which to work. If the master negligently furnishes him an unsafe place, or negligently allows the place to become unsafe, and he is injured thereby, the master is liable.
The place in which the master set the plaintiff to work was the engine room. It became an unsafe place in which to work by the combined reason of the pit of hot water and its insecure covering. Did it become so by the defendant’s negligence, or which is the same thing, the negligence of those to whom it had deputed the duty to keep the place safe for its employees? Looking alone to the evidence in behalf of defendant itself, and this question must be answered in the affirmative. That evidence was given by the defendant’s superintendent. He stated that there were two shifts (an engineer and fireman); that the engineer was in charge of the engine room and the fireman in charge of the boiler room where the accident happened to plaintiff. That it was the duty of each shift to keep the place in repair during the period such shift was in charge. That is, that while each engineer and fireman was in charge, they looked after the safety of the place.
The evident purpose in bringing out this evidence was to show that whatever became unsafe, became so by the act of these employees as fellow-servants, and plaintiff being one of them, he could not recover. But, accepting the superintendent’s testimony as true, it does not exculpate; it inculpates defendant. He says that each shift looked after the safety of the place;' that particularly the fireman kept oversight of the boiler room. The other testimony, both for plaintiff and defendant, shows that this pit became unsafe, or at least became known to be unsafe, to the engineer and fireman preceding plaintiff- and while he was off duty, and was *126left by them in that condition without informing plaintiff. We have already said that tbe master can not put away the duty of keeping a safe place for his servant. It is.therefore clear that if each shift looked to the safety of the place while on duty, they were deputized to perform defendant’s duty, and their negligence was defendant’s negligence.
As stated above, the defendant, to sustain the position that plaintiff’s injury was due to the negligence of his fellow-servant, relies on Grattis v. Railway, 153 Mo. 380. But in so doing counsel disregard the warning given by Judge Marshall in that case (p. 403), and Judge Black in Parker v. Railway Co., 109 Mo. 407; for they are confounding the rule governing liability for the negligence of fellow-servants, with that governing the liability for the negligence of the master. The duty of the master to furnish a safe place to work, and to keep it safe, is a'personal or positive duty to the servant which, as we have already said, he may for convenience delegate to other servants, but these are not fellow-servants in the performance of that duty; they are the alter ego, the vice-principal; that is, they stand for and instead of the master himself, so that case, instead of being an authority for defendant, is a warning that it must not be accepted as governing cases like defendant’s. In this connection see quotation made by Judge Mabshall from Judge Dillon (p. 407); as well as Railway v. Baugh, 149 U. S. 368, 386, and Railway v. Keegan, 160 U. S. 259, 264.
But among the many suggestions made by defendant is the following, which it claims is an exception to the rule we have stated, viz.: That when the master employs competent workmen and furnishes suitable material for a structure, and intrusts the duty of constructing it to the "servants who are to work upon it, he is not liable to one of these servants for an injury resulting from negligence of one of the co-servants in building the structure. That exception has the sanction of authority. Bowen v. Railway, 95 Mo. 277; Jones v. Packet *127Co., 43 Mo. App. 407; Kelley v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Armour v. Hahn, 111 U. S. 313; Peschel v. Railway, 62 Wis. 338. But that exception is not applicable to the case made by the present record. In this case the place in which the plaintiff was put to work and the machinery therein, were furnished by defendant, and plaintiff was introduced into the place without having had anything to do with its construction. Under such facts there is no room for application of the exception to the rule referred to. Bowen v. Railway, supra; Arkerson v. Dennison, 117 Mass. 407; Brabbitts v. Railway, 38 Wis. 289; Ford v. Railway, 110 Mass. 240; Holden v. Railway, 129 Mass. 268; Davis v. Railway, 55 Vermont 84; Hough v. Railway, 100 U. S. 213.
Manifestly it was the duty of some one to keep the place in controversy reasonably safe for each shift to work in as they came to work. It was either the duty of the servant who discovered the insecurity of the place to report it to the superintendent so that he could repair it, or it was his duty to repair it himself. The superintendent says the latter was the duty. That is the same as to say that the master’s duty was delegated to him. It may well be said that if the dirty of the servant had been to report the necessity for repairs to the superintendent; or if he had attempted to repair when it was not his duty to do so, his negligence would have been that of a fellow-servant. But the superintendent places these servants above that role. ' His testimony clothed them with one of the master’s duties, and neglect to perform such duty must be charged to the master.
Defendant has urged upon \rs a number of theories and reasons why it should not be held liable for the accident. But the difficulty constantly in the way of allowing effect to any of them is that the negligence charged against the servant here relates to one of the master’s duties which he can not shift onto the shoulders of an employee so as to escape respon*128sibility. It is not a case falling within that vast variety of kinds of negligence of which servants are guilty in performng a servant’s duty. It is a case where the master has said to the servant: “It is not convenient for me to be present and I will get you to perform one of my personal duties for me.” If the defendant could escape liability in this case, it would be in the power of any master to evade his duty in every instance.
We' therefore conclude that defendant’s objection to Judge Smith’s opinion is not well taken and, hence, overrule its motion.
On further consideration we have concluded that on the evidence in the record, the omission to include in respondent’s instruction No. 2, the question of defendant’s knowledge of the defective covering was not such error as would justify a reversal of the judgment. The entire evidence, including that for defendant, shows that defendant’s servants to whom it had delegated the duty to keep the place safe knew of the defect and of its being unsafe. In such state of the evidence it was not reversible error to omit the hypothesis of defendant’s knowledge. Thus it has been uniformly held that it is not reversible error to assume that as a fact which was conceded at the trial, or which was established by uncontradicted and uncontroverted evidence. Sweeney v. Railway, 150 Mo. 385; Ragan v. Railway, 144 Mo. 623; Pratt v. Conway, 148 Mo. 291; Fullerton v. Fordyce, 144 Mo. 519; Dimmitt v. Railway, 40 Mo. App. 654; Tyler v. Tyler, 78 Mo. App. 240; Price v. Patrons Co., 77 Mo. App. 236.
The motion for rehearing by plaintiff will be sustained and the judgment ordered affirmed.
The other judges concur.