ON MOTION EOE EEHEAEING.
Buegess, J.Council for defendant in their motion for a rehearing filed in this case insist that the opinion is in conflict with Fugler v. Bothe, 117 Mo. 475, and Lucey v. Hannibal Oil Co., 129 Mo. 32, but there is a very material difference in the facts as they appear from the decisions in those cases and the facts disclosed by the record in the ease in hand. In each of those cases the danger was obvious.
In the Fugler case the deceased, an experienced carpenter of mature age, was engaged in boarding up the sides of an air shaft. He had worked on this work about fopr weeks. While nailing on the boards he and another carpenter engaged in the same work with him stood on a plank from fifteen to seventeen inches wide which was securely fastened over a gutter, when deceased lost his balance, fell down into the shaft, and received injuries resulting in his death. There was no pretense, says the court (at p. 494), “that his employer had any knowledge touching the danger of the place superior to that which he had; nor that the danger, whatever its character, was not perfectly obvious to a man of the most ordinary understanding; nor that it was not glaring, immediate, continuous, and the same all the time.”
*620In the Lucey ease the plaintiff knew all about the dangerous condition of the crossbeam which fell upon him and caused his injury, having theretofore assisted in placing and adjusting the props under it. It was not a latent defect of which he had no knowledge, and of which his employer knew, or might have known by ■the exercise of that degree of care and diligence that is required of the master in furnishing a safe place for his servant to work. They both knew its condition. The danger was not only obvious, but the plaintiff assisted in making it dangerous and thereafter continued to remain in the same service, in the face of danger which he knew to exist.
In the case at bar the danger was not obvious. There was nothing apparent from the grindstone itself or in the manner of its adjustment which indicated that it was dangerous to stand near it or in front of it, and it only became dangerous when running at an improper and excessive rate of speed. What was a safe rate of speed deceased did not know, but was in effect told by defend-' ants’ superintendent, that the speed at which the stone was revolving at the time of the accident was- a safe rate of speed, and, being so informed, he had the right to rely upon the superior knowledge or supposed superior knowledge of the superintendent.
With respect to the knowledge of deceased of the danger attending the rate of speed at which the stone was being revolved at the time of the accident, the court at the instance of defendants instructed the jury as follows:
“And if the jurors believe that the deceased knew that stones of the kind in question were generally used at the speed testified to, and while being used in the manner testified to were liable to fly in pieces and injure persons working about the same, and thereafter continued in his said employment, and working around *621said stone, that then.such danger was one of the risks incident to his employment which he thereby assumed, and plaintiff is not entitled to recover.”
The assumption of risks by an employee is based upon his knowledge, or means of knowing, of the danger to which he is exposed in and about his employment and his continuation in the same employment thereafter, and the jury found in this case, under this instruction, that deceased did not know that the stone was being operated at a dangerous rate of speed at the time of the accident. It follows that there was no assumption of risks on the part of deceased, because of the want of knowledge of the danger, attending the operation of the stone. We adhere to the opinion and overrule the motion.
Brace, C. J., Barclay and G-antt, JJ., concur; Macparlane, Sherwood, and Robinson, JJ., dissent.