DISSENTING OPINION.
MAESHALL, J.I am unable to concur in the majority opinion in this case. As I prepared the statement of the facts in the case, I, of course, concur as to the facts. And as I. also wrote the opinion in Roberts v. Telephone Co., 166 Mo. 370, and in Holmes v. Brandenbaugh, 172 Mo. 53, I also,'naturally, agree to the excerpts that are .reproduced from those cases in the majority opinion. But I cannot agree to the conclusions drawn from the facts by the majority opinion, nor can I agree that the majority opinion properly applies the law applicable to the facts in judgment here. The cases quoted from state the law correctly as applied to the facts of those cases, but, in my judgment, the majority opinion in this case overlooks the crucial question of fact in this case, and also stops short of applying the full modern rule of law in respect to assumption of risks.
*460At the threshold of this discussion it is necessary to restate the negligence of the defendant relied upon by the plaintiff as affording a basis for recovery. It is twofold, to-wit: first, that the plank was insufficient in width, size, strength and weight to afford plaintiff a reasonably safe place and secure footing; and, second, that the plank was loose and unfastened to its supports and was liable to slip and spring, on account thereof, from its proper position.
The majority opinion finds that the evidence does not support the. first assignment of negligence, and then decides -the case without observing the second assign- • ment of negligence at all. Now the fact is that the evidence is just as clear and uncontroverted that the plank was loose and unfastened to its supports and hence was liable to slip from its proper position, as it is that the plank was of a sufficient width, size, strength and weight to afford plaintiff a reasonably safe place and secure footing. Hence the jury might, and doubtless did, find the first assignment of negligence in favor of the defendant, and as the verdict was for the plaintiff, it must have been that the jury found that the second assignment of negligence was true. And the jury could not have found the fact, in that regard, otherwise, for it is admitted.
The fact is, therefore, not only found to be, but is admitted to be, that the plañir was loose and unfastened to its supports. The fact is also found and admitted to be that the plank rested upon the tops of the two steam chests, and that, those tops were not even or smooth, but that they had the name of the manufacturer on them in raised letters and also had nuts and bolts projecting above them about an inch and an eighth in height. The majority opinion overlooks this very material fact. It is of the very essence of the case, for upon it the verdict was rendered, and upon it depends the application of the modern doctrine of assumption of risk, which/ the majority opinion has not applied; *461•and it is because of this element of fact and this principle of law, that this case differs from Roberts v. Telephone Company, and Holmes v. Brandenbaugh, supra, and also from all other cases referred to in the majority opinion, and it is because of such facts that this case falls within the rules laid down by this court in Huhn v. Railroad, 92 Mo. 440 ; Soeder v. Railroad, 100 Mo. 673; O’Mellia v. Railroad, 115 Mo. 221; Francis v. Railroad, 127 Mo. 669; Bradley v. Railroad, 138 Mo. 302; Doyle v. Trust Co., 140 Mo. 1; Hamman v. Coal Co., 156 Mo. 232; Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467; Grattis v. Railroad, 153 Mo. 380; Connolly v. St. Joseph Press Ptg. Co., 166 Mo. l. c. 463; Minnier v. Railroad, 167 Mo. l. c. 112; Holmes v. Brandenbaugh, 172 Mo. 1. c. 66; Haviland v. Railroad, 172 Mo. l. c. 112; Curtis v. McNair, 173 Mo. l. c. 279; and Parks v. Railroad, 178 Mo. 108.
The very question in this case is, was it negligence on the part of the defendant to furnish to the plaintiff, as an appliance to reach the governor on the machine, a loose plank which was to rest upon the tops of the two steam chests, and which tops were not even or smooth, but had raised letters and nuts and bolts projecting an inch and an eighth in height, and if this was a negligent appliance, did the plaintiff assume the risk by remaining in the defendant’s service and by using the appliance?
The question of whether or not the appliance furnished, to-wit, the plank used in combination with the tops of the steam chests, was or was not negligence, was one of fact, about which reasonably fair-minded men might differ, and it was therefore a question for the jury. [Francis v. Railroad, 127 Mo. 669; Pauck v. Beef Co., 166 Mo. 639.] The trial court left this to the jury •and I think properly did so.
The question of whether or not the plaintiff assumed the risk of using the appliance is a mixed question of law and of fact. If the appliance was so patently *462dangerous that no reasonably prudent man would use it, the plaintiff is not entitled to recover because he did use it, and the defendant takes this position, for it says, “He was a grown man, a skilled and experienced mechanic, and must have known, what a child would have understood, that a board resting unfastened upon any surface may slip or change its position.” In other words, the defendant’s argument is that the appliance was so patently dangerous that no reasonably prudent person would have used it, and, therefore, the plaintiff assumed the risk by using it.
But the majority opinion is quite the antithesis of the defendant’s contention. It is that the appliance was safe and not dangerous at all, and that the plaintiff voluntarily used it, without protest.
Whether the appliance was safe or dangerous, was a question of fact for the jury, and they found it to be dangerous. Whether notwithstanding the dangerous condition the plaintiff was cut off from a recovery, depended upon whether it was so manifestly and obviously dangerous that a man of ordinary prudence would have refused to use it, or whether the danger of using it was not glaring and threatening and whether the plaintiff had a right to reasonably believe that he could safely use it by the exercise of ordinary care. If the former was the fact the plaintiff is not entitled to recover, but if the latter is true he is entitled to recover. In either case the question was one of fact for the jury, under proper directions as to the law by the court. And the trial court properly instructed the jury upon this feature of the ease as follows:
‘ ‘ The court instructs the jury that even though you may believe and find from the evidence that the placo where plaintiff was working at the time of the injury was unsafe and defective as defined by the other instructions, and that Mathis had knowledge of such condition, yet such knowledge would not defeat him in this action unless you further believe and find from the evi*463.deuce that the danger therefrom was so glaring and threatening that a person in the exercise of ordinary care would not have used the same, or that the condition was such as to threaten immediate injury by its use.”
This is the law as laid down in the excerpt from Holmes v. Brandenbaugh, copied in the majority opinion, and in the other cases herein set out, and is the modern rule as to the assumption of risks. The majority opinion entirely ignores this rule, and for that reason I am unable to concur in it.
This case is unlike Fugler v. Bothe, 117 Mo. 475; Holloran v. Foundry Co., 133 Mo. 470; and Steinhauser v. Spraul, 127 Mo. 541.
In the case of Fugler v. Bothe, the plank composing the scaffold from which the plaintiff fell was nailed down, and did not slip, and could not slip. Exactly the reverse is the fact here.
In Holloran v. Foundry Go., the question was not that the plank was loose and slipped, but it was whether the master had furnished enough planks. The planks were not nailed down, but they were just as securely held down by the derrick which was being moved over them. And, in addition, the accident was not caused by the planks slipping, but by the plaintiff having to step off of the plank and put his foot against the iron .girder, so as to use the crowbar to straighten the course of the derrick and keep it from running off of the planks, which makes that case a very different one from the case at bar.
In Steinhauser v. Spraul, the ladder was a proper appliance, but the accident was caused by the improper use of the proper appliance by the servant. Here, there .was only one way for a servant to use the appliance, and the very question in the ease is whether a plank that is safe in itself becomes dangerous when used in combination with the tops of the steam chests, with the projections described on the top of them, without any pro*464vision being made to prevent the plank from slipping-from such a foundation. •
These three eases were unquestionably decided properly under the facts in judgment, and the principles of law they announce have my concurrence. But those cases are not applicable to or decisive of the case at bar. The majority opinion says that the testimony is “silent as to the cause of the tipping of the plank: whether it was occasioned from the uneven surface' upon the steam chests, or from insufficient width of the plank or from the movement of the plaintiff upon it, it is apparent that the accident was not caused by reason of any unsoundness of the plank, ’ ’ etc.
I agree that the accident did not occur from any unsoundness of the plank. But that does not determine the ease. The case rests upon the unsafe appliance furnished, to-wit, the combination of the loose plank and the uneven surface of thé tops of the steam chests.
I do not think such an appliance is so glaringly or threateningly dangerous that a person of ordinary prudence would refuse to use it, and, therefore, I do not think that the plaintiff is cut off from a right to recover because he did use it. I think the case turned upon the question whether the plaintiff had a reasonable eause to believe that notwithstanding the appliance furnished was dangerous, still he could use it 'by the exer-. cise of ordinary care. And it was for the jury to say whether he did exercise such care, or whether the plaintiff caused it to tip from the manner in which he moved upon it.
The majority opinion says the surface of the steam chests was ‘ ‘ solid and firm, ’ ’ and that notwithstanding the ‘ ‘ emphatic ’ ’ language of the defendant’s chief engU neer to the plaintiff to use the appliance, it is apparent “that its use was voluntary.” I cannot agree to that statement of the facts. The plaintiff had never used it until so emphatically ordered to do so. Prior to that time he had stood with one foot on the top of each steam *465chest. He was cursed by the chief engineer for so doing and ordered to use the plank on top of the steam chest. This certainly was not a voluntary use.
I, therefore, think the trial court properly submitted the ease to the jury upon the question of negligence; that the instructions given fully and clearly defined the law to the jury, and hence the verdict is conclusive in this court.
As the majority opinion disposes of the case without deciding the question of the release further than to approve the case of Mateer v. Railroad, 105 Mo. 320, I deem it necessary only to say that I think Mateer v. Railroad was properly decided, but that the facts in judgment there are quite different from the facts in judgment here. In the Mateer case the release was sought to be avoided upon the ground that it had been procured by fraud, and the plaintiff broke down entirely in his attempt to show fraud. In that case the plaintiff received exactly the .amount of damages he demanded for his injuries and signed a receipt therefor without reading the whole of it. There was no question about the payment being for anything else than the damages. Here the whole question- was whether the amount the plaintiff received was for his wages for September or was for the damage he had sustained. The amount he received was concededly the exact amount of wages he was receiving while at work. The Mateer case is, therefore, wholly unlike the case at bar.
The foregoing is enough to explain to the legal mind the reasons for my dissent in this .ease. I doubt whether any good upon the whole can come from dissenting opinions. They take up the time of the dissenting judge which might profitably be spent upon other cases, and they are not pleasant to write. The only thing that ever prompts me to do so, is that I believe I am right and hence want the lawyers and the world to know ■“the reason for the faith that is in.me,” and to avoid *466being in tbe attitude of a “voiceless” dissent — meaning I suppose, a capricious dissent, not founded upon any reason.
Brace and Vallicmt, JJ., concur herein.