ON MOTION POR, REHEARING.
BROADDUS, J.The trial court, by instruction numbered two, informed the jury that plaintiff had a right to assume that defendant had furnished lumber of a quality to make the use of it by plaintiff reasonably safe, unless it was so glaringly and obviously dangerous that a man of ordinary prudence would refuse to walk upon it. Defendant asks a rehearing on account of our not having considered that instruction.
Defendant’s position is based upon what it conceives to be the testimony of plaintiff himself; it being contended that he knew the lumber was unfit. And that presumptions or assumptions should be indulged only in cases where the complaining party was not shown to have been guilty of contributory negligence, or was not shown to have known of the defective place where he worked. It is quite true that one has no right to assume a thing to exist which he knows does not. As, for instance, he has no right to assume that a street railway company had bells on its mules which were drawing an approaching car, when he knew they had not. Lynch v. St. Railway, 112 Mo. 420. The objectionable instruction in that case put the injured party’s right to assume there were bells on the mules without regard to whether he, in exercise of ordinary care, might have known there were not. The instruction in that case, as written, left the injured party at reckless liberty to assume there were bells when the least attention on his *27part would have disclosed there were not. In other words, the instruction was half complete. As said by the court in that case, it should have stated “that a person himself in the exercise of ordinary care or prudence has the right to assume that others will obey the law and to act on that belief” (p. 437). That is, the party, himself in exercise of ordinary care, may assume that the other party will perform, or has performed his duty.
In this ease the instruction objected to was complete in itself. It states the law, for it embraces the respective positions of the contending parties. It is the law that plaintiff had the right to assume that defendant had performed its duty in furnishing a reasonably safe scaffold for him to walk upon unless its defect was so obviously dangerous as to deter an ordinarily prudent man from going upon it. If it was of the latter character, then plaintiff had no right to assume defendant had performed its duty, for he knew to the contrary. The testimony given by plaintiff was that he was a carpenter of long experience, that he was acquainted with lumber, its use, character and relative strength, as well as suitableness for different kinds of use. That he was not called upon to inspect the lumber in question, though he. observed that some of the boards were old and were painted on one side and that some' of them had nail holes in them. But it is clear from his testimony, indeed he stated in terms, that the boards being laid across the lattice-work or supports of from fourteen to twenty inches apart, were safe for him to walk upon. So, conceding that there was evidence tending to show the boards were- so obviously dangerous that a prudent man would not have walked on them, yet it must also be conceded that the evidence also tended to show that the danger was not obvious. The instruction complained of submitted the comprehensive proposition that plaintiff had a right to assume-*28that defendant had furnished hiin a safe place to walk upon unless the danger was so obvious as to have prevented a prudent man, in which case no such assumption could be made. When a servant knows of a defect which is not glaringly dangerous, why may he yet continue to work? Plainly for the reason that he has a right to assume that it may be used with safety else the master would not have put it in place for his use. We regard the following cases as fully illustrating and supporting what we have said: Duerst v. St. Louis Stamping Co., 163 Mo. 607; Sullivan v. Railroad, 107 Mo. 78; Doyle v. Trust Co., 140 Mo. 19; Keegan v. Cavanaugh, 62 Mo. 230. In each of these, the servant knew of the defect, yet his right to assume safety is stated in various ways: as that, he “had a right to believe” in the Duerst case; that “he had a right to iely, ’ ’ in the Sullivan case; that “he had a right to presume,” in the Doyle case.
The motion should be overruled.
All concur.