I dissent. I think the instruction not only erroneous but harmful. The theory of plaintiff’s case, as alleged in his complaint and upon which he went to the jury, is not that the defendant was negligent in selecting an improper or dangerous place to thaw the dynamite, or that the manner of thaYidng it was unusual, improper, or negligent, but that the defendant carelessly, negligently, and wrongfully ordered and permitted the plaintiff to ’work in close proximity “of a dangerous explosive,” without giving him notice or warning of the danger, he, as alleged, having been without knowledge or means of knowledge of the hazard and danger to which he was exposed, which, as is also alleged, the defendant knew or ought to have known. The court, as matter of law, charged the jury that the manner of thawing the dynamite, under all the circumstances disclosed, was not negligent. With respect to the defendant’s alleged negligence, the court instructed the jury (paragraph 2) as set forth in the prevailing opinion, and also as follows: “(10) The court charges you that from the allegations of the complaint, and from the evidence introduced, the thawing of dynamite by placing it around a fire in a circle is in itself not negligence, and that the defendant was not negligent in permitting its servants to thaw dynamite in such a way, but the court charges you that if you find by a preponderance of the evidence that the method of thawing out dynamite, as used by the defendant at the time and place where the plaintiff was injured, though not negligent, was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such close proximity to the place where such dynamite was being thawed out that his life and limb were endangered thereby, then the court charges you that the defendant was guilty of negligence.” Complaint is made of both of these instructions.
*130By this charge it is observed that the defendant’s negligence was predicated on bnt two things: Was the manner of thawing dynamite dangerous (not negligent) ; and was the plaintiff required or ordered to perform work in such close proximity thereto as to be exposed to the danger ? Restating the proposition, it is this: A master, in the exercise of ordinary care and free from negligence, is engaged in the conduct of a business or the operation of machinery, or the doing of something which is dangerous; now, if he directs or requires a servant to perform work in such close proximity thereto as to be exposed to danger, then is the master guilty of negligence. And this, too, according to paragraph 10, regardless of whether the defendant notified or warned the servant of the danger, and, according to both paragraphs, regardless of all questions of whether the servant himself knew of or comprehended or appreciated the danger. Thus the court directed the jury that if the manner of thawing the dynamite was dangerous, and if the defendant ordered or directed- the plaintiff to work in such close proximity thereto as to be exposed to the danger, then was the defendant guilty of negligence, regardless of the allegations of the complaint, and all questions (1) of whether the defendant negligently, carelessly, or needlessly required or directed - the plaintiff to work near or in the vicinity where the dynamite was thawed, or of the circumstance or conditions attending it and surrounding him; (2) of whether the danger was open and obvious, or known to the plaintiff, or comprehended or appreciated by him; and (3) of whether the defendant knew, or ought to have known, that the plaintiff was without knowledge or means of knowledge of the danger, or, because of his youth, inexperience, or ignorance did not comprehend or appreciate it, and for that reason ought to have warned and instructed him. In other words, the charge makes • the master an insurer when he permits or directs a servant to engage in a hazardous employment or to work at or in the vicinity of a place attended with danger.
It needs no argument to show that the charge is wrong. Was it prejudicial? It is said to be harmless because the *131evidence without conflict shows (1) that the defendant did not notify or warn the plaintiff of the danger, and (2) that the plaintiff had no knowledge, or means of knowledge, of the danger, and did not appreciate or comprehend it. We are not now dealing with questions of fact, or insufficiency of evidence, or of whether the evidence as to certain facts is or is not in conflict. We are dealing, with a question where the jury for their guidance were given an absolutely wrong principle — where they were misdirected and misguided — with respect to a material issue, the defendant’s negligence, the very thing upon which plaintiff’s case is-founded. Such a charge I think necessarily must be harmful, unless with respect to such issue the plaintiff was entitled to a directed verdict in his favor. No such claim is made, nor, on the record, do I think such a claim could properly be made. Futhermore, before the plaintiff can be in a position to defend the judgment on such ground he is required to show that he in some manner in the court below invoked such action, and to present by cross-assignments an adverse ruling thereon for review. He did neither. He defends the charge on the theory alone that it states correct principles.
But let it be conceded that the evidence without conflict shows that the defendant did not notify or warn the plaintiff of the danger, as was assumed by the trial court in paragraph 2 of the charge. The liability of a master in failing to warn and notify his servant of danger is not-determinable alone from the fact that the master did not notify or warn him. There are other equally important factors to be considered —among them, the character of the danger, whether it was open, obvious, and manifest or otherwise; the attending circumstances and conditions; the knowledge and experience of the servant himself; and the defendant’s knowledge or notice, either- actual or constructive, of the servant’s lack of knowledge or appreciation or comprehension of the danger. For these reasons the question of negligence predicated on the master’s failure to warn or instruct the servant of danger is peculiarly one of fact. It of course is admitted *132tbat in determining tbe liability of tbe master in tbis regard tbe question, or tbe extent, of tbe servant’s knowledge or appreciation or comprehension of tbe danger is an important factor. But again it is said tbat tbe evidence witb respect to tbis also shows without conflict tbat tbe plaintiff was without knowledge and did not appreciate tbe danger. I do not concur in tbat. True, certain facts were testified to by tbe plaintiff which were not directly disputed. Tbat tbe plaintiff was a ydung man nineteen years of age and was inexperienced in tbe handling of dynamite is shown. He testified tbat be never bandied dynamite, and until tbe accident never saw it exploded or discharged, and tbat tbe defendant gave him no instructions or warning concerning dangers of dynamite. But be did not testify tbat be was ignorant of tbe explosive properties or character of dynamite, or tbe purpose for which it commonly is used. He testified tbat be saw it thawing by means of fire; but be did not testify tbat be was ignorant of tbe danger or liability of its discharge by beat or coming in contact witb fire, or tbat be was ignorant of, or did not appreciate or comprehend, any of tbe attending dangers. Tbe defendant prosecuted tbe work of constructing a roadbed at different camps several miles apart. Plaintiff testified tbat before bis injury be worked fourteen or fifteen days at camp eleven, about ten days at camp six, and three or four days at camp fourteen, where be was hurt. At all these places rock was blasted by dynamite. He testified tbat at camp fourteen be worked about one day and a half drilling boles in rock, but did not know what tbe boles were for. He further testified tbat be did not at either place see dynamite discharged, because when the' explosions occurred be was either in tbe blacksmith shop, or at some other place where be could not see tbe discharge, but beard tbe reports of tbe discharges. Tbe plaintiff in fact was an inexperienced' powder man, and to a large extent in tbat capacity worked as a helper. But nothing was made to appear tbat tbe defendant or its vice principal — its agent who employed him or under whose direction be was — bad any knowledge of bis *133inexperience or unfamiliaxity with dynamite, or that any such information was given by him, or by any one, to the defendant or to any of its agents. He was employed with a gang of eight other Italians to drill and blast rook, and to do other work about the camp. Nothing was said by him, or by any one, of his inexperience or unfamiliarity with any of the work undertaken by him. That the defendant knew or ought to have known of his inexperience and unfamiliarity, or that he was ignorant of, or did not appreciate or comprehend the attending dangers, rests upon inferences and deductions, largely from the facts of plaintiff’s age. Now let it be conceded that the evidence was sufficient to carry the ease to the jury on all these questions. Nevertheless, I do not think it ought to be said that but one finding is permissible, negligence on the part of the defendant in failing to warn and instruct the plaintiff. Especially is this true when the facts upon which the plaintiff’s ignorance of the danger and his want of appreciation of it rest almost entirely upon his own testimony, the testimony not only of a directly interested witness, But a party to the action, and concerning a matter peculiarly within his own knowledge. Though one, especially' an interested party, should testify that he was in fact ignorant of the danger, or that he in fact had not appreciated or comprehended it, still the truth or falsity of the testimony, or the weight to be given it, would depend upon or be affected by a variety of things: Among them, the character of the danger; how open and obvious it was; how well, if at all, it was generally known and understood; the age, experience, and intelligence of the person, and the circumstances and conditions attending the danger and surrounding the person. Under such circumstances the question of the defendant’s negligence is peculiarly one of fact, upon which the defendant was entitled to have the judgment of the jury. Henee I may here say, as was said by Mr. Justice Gary in the case of P., C., C. & St. L. Ry. Co. v. Warren, 64 Ill. App. 584:
*134“It is no answer to say that the appellee, suing a railroad, would, have had a verdict anyhow; the appellant had the right to he mulcted under the forms of law.”
The negative charge, referred to in the prevailing opinion, that if the plaintiff was without knowledge of the danger and did not appreciate it, then he was not guilty of contributory negligence but emphasizes, instead of cures, the error complained of. In the first place it, too, is erroneous, in that it makes the want of contributory negligence solely dependent upon one thing: If the plaintiff was without such knowledge and did not appreciate the danger, then, says the court, was he, as matter of law, not guilty of contributory negligence, no matter how much he may have lacked in due care in all other particulars. But in the event the jury found he had such knowledge and 'did appreciate the danger, then what? The charge is silent as to such an hypothesis. The jury were left to dispose of it, and were given the liberty to find the plaintiff guilty or not guilty of negligence, as they on the. evidence, aided by argument of counsel, might think justice and meet in the premises and agreeably with the prayer of the complaint. In the next place this, charge gave the jury to understand that plaintiff’s knowledge and appreciation of the danger, or the want of it, had but to do with the question of. contributory negligence and the determination of it, but had npthing whatever to-do with the question of the defendant’s alleged negligence in failing to warn or notify the plaintiff of the danger, and heu.ce but emphasized the error complained of and considered. Certainly it will not be claimed that one error against an aggrieved party may be cured by another of equal or greater injurious effect.
And lastly, the conclusion deduced that because of the charge of contributory negligence the jury, before they could find for the plaintiff, were required to find that he was without knowledge of the’ danger and did not appreciate it is, in my judgment, not justified. For, as already pointed out, that charge directed the jury that if the plaintiff was without such knowledge and did not appreciate the *135danger, tben was be not guilty of negligence; bnt if they found be bad sucb knowledge and did appreciate tbe danger, tben were they at liberty to find bim guilty or not guilty as tbeir deliberations might determine.