(dissenting).
I am forced to dissent in this case. In the first place the trial court erred in not sustaining a demurrer to the evidence because there is no evidence that the defendant was guilty of any negligence which *852caused the death of the deceased, Wilbur Lee Pratt. The only duty Pratt had to perform outside the building was to raise the flag each morning. He was never instructed to make repairs' on the flag pole. No fair minded person would ever say that there was anything dangerous about this roof and flag pole to a person whose only duty was to raise the flag. For the thing he was to do, Wilbur Pratt had a perfectly safe place to work. No witness testified that it was ever the duty of Wilbur Pratt to repair the flag pole in question. It is a hornbook principle of the law of master and servant that a master is not chargeable with negligence for failing to warn a servant of danger when he is injured while working outside the scope of his employment voluntarily and without orders. Every appellate court that has had occasion to pass on the proposition sustains this rule. I think the case of McCue v. National Starch Mfg. Co., 142 N.Y. 106, 36 N.E. 809, is in point and almost on all fours with the case at bar. It was held that where a master does not require a servant to adjust machinery used by him when out of order but has a machinist to perform such duty, and the servant is injured while adjusting such machinery the master is not liable for failure to instruct as to the manner of adjustment and to warn him of the danger. It is to be remembered that in the case under consideration Service Pipe Line Co. had not accepted the building completely and all repairs and adjustments were to be made by the contractor and not by employees of Service Pipe Line Co. See also Marshall v. Burt & Mitchell Co., 75 N.J.L. 624, 69 A. 183, and the cases cited to Note 97 at page 509, of 39 C.J. See also 56 C.J.S., Master and Servant, § 302.
There was nothing in this record to show that Pratt was a green hand. He was licensed as a Class A Engineer by the City of Tulsa, that contemplates that the holder has had five years practical experience in the handling of high and low pressure boilers and other work connected with maintenance of an office building. In addition to this, the deceased was a Lieutenant, Junior Grade, in the United States Naval Reserve. He had served thirteen years in the United States Navy, active and reserve duty. He undoubtedly was as experienced with raising and lowering flags as most experienced building engineers. It is clearly evident that he should know as much about flag raising as the most experienced. Even if Pratt had been ordered to repair the flag pole, which he was not, the defendant is not required to instruct an experienced employee on matters of this kind. In 56 C. J.S., Master and Servant, § 305, this statement is made:
“* * * An employee of mature years is presumed to be acquainted with the dangers incident to the service; and the employer may assume that an adult servant possesses such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious- danger, and that the servant knows those facts of common experience and observation which are known to persons of his age and experience, and no duty rests on the master to warn and instruct him as to the possible or probable dangers of the employment, where he is mature, intelligent, and experienced in the work, and the master has no notice or reason to believe that he is not fully competent and acquainted with. such dangers. Where a servant solicits employment in a particular calling or for the performance of a certain piece of work, the master has the right to assume that the servant is qualified therefor and need not warn the servant as to the dangers incident to the service, and particularly is this true where the servant makes express representations as to his experience and capacity.”
What normal person would think it necessary to warn a grown man of thirty three years not to attempt to lower a flag pole by himself that weighed two hundred and fifty pounds and was twenty-five feet in height when he did not know how to do it. A man with the experience of the deceased would naturally be expected to make inquiry how to lower the pole and if he had known or learned how there was no danger attached to lowering the pole as the méthod so pro*853vided was one of the best and safest ways to lower a flag pole. A splendid discussion of the rights of a master in situations of this kind is found in Sabere v. Benjamin Atha & Co., 75 N.J.L. 307, 68 A. 103.
There is no evidence in this case that Service Pipe Line knew more about this flag pole and its operation than Pratt. It is a well settled principle that the master will not be held liable for a failure to warn where his opportunity for knowledge of a danger is no greater than that of the servant. See M. T. Stevens & Sons Co. v. Daigneault, 1 Cir., 4 F.2d 53; Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; Kolbow v. Haynes-Langenburg Mfg. Co., 318 Mo. 1243, 3 S.W.2d 226; Torgerson v. Minneapolis, St. P. & S. S. M. Ry. Co., 49 N.D. 1096, 194 N.W. 741.
A master is not called upon to anticipate and warn against every possible danger to which the servant may be subjected in the course of his employment. See Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 71 A. 213, 21 L.R.A.,N.S., 89 and accompanying note.
It is another well settled rule that where, by the exercise of reasonable care, the servant'could have known of the dangers likely to be encountered by him that the master is under no obligation to give warning or instruction thereof to the servant. Reasonable care dictates that the servant inform himself as to the proper operation of the flag pole. It was held in Mattos v. Felgenhauer, 154 App.Div. 699, 139 N.Y.S. 379 that the master need not warn or instruct an experienced servant as to the proper way of putting a belt over a pulley. See also 56 C.J.S., Master and Servant, § 295.
There was no causal connection established between the alleged acts of negligence and the death of Wilbur Pratt without basing an inference upon an inference. This Court does not permit that. Ogden v. Baker, 205 Okl. 506, 239 P.2d 393.
To the eight charges of negligence, I say, that none justify, from the evidence supporting them, the submission of the case to the jury. Here are the charges of negligence shown by the letter statements and my answers to them:
“A. In locating said pole on the roof of said building close to the edge thereof so that persons working with said flag pole could easily fall or be knocked from said roof;”
For 'One raising and lowering the flag, there was no danger.
“B. In failing to have a guard of sufficient height and length along the edge of the roof so as to prevent persons working around and on said flag pole from falling from said building or being knocked off the roof thereof;”
Pratt had no duties around the flag pole except to raise and lower the flag and there was no danger in that.
“C. In failing and neglecting to instruct or advise plaintiff’s intestate how to properly operate the mechanism of said flag pole so as to lower the same in safety;”
Pratt was not to repair the flag pole so it was not necessary that he be instructed and furthermore it was a simple mechanism and the defendant had the right to think he would know how to operate it.
“D. In failing and neglecting to inform or advise plaintiff’s intestate which of said bolts was the axis and which was the hold bolt;”
No duty to inform employee at this point the same as iñ C.
“E. Failure to give printed or stenciled warning at or near the location of said axis bolt that it was dangerous to remove said axis bolt or that said bolt was not to be removed;”
Pratt had no duty to use the pole mechanism and if he did not know, he should have informed himself by making inquiry.
“F. Permitting said axis bolt to be held in place by a simple ordinary threaded hardware nut instead of riveting or permanently fastening said bolt;”
No duty at the time but no one showed that it was not safe to those who knew their business.
“G. Failure of the defendant, after it knew that said rope had been jammed, to have someone to assist, ad*854vise or inform plaintiff’s intestate as to proper and safe method of lowering said pole for the purpose of correcting said jamming; and”
No one testified that it was necessary to lower the pole and'if it was to be lowered it was the contractors duty.
“H. Failing and neglecting, under the circumstances, to provide plaintiff’s intestate a reasonably safe place in which to work.”
For the work he was instructed to do, the place to work was not dangerous.
The author of the majority opinion assumes too many facts. There are no facts proven to justify the application of the three paragraphs of the syllabus of the majority opinion.
In the light of the foregoing, I am- firmly of the -opinion that the demurrer to the evidence should have been sustained.
Beyond question, the motion for directed verdict should have been sustained in the light of positive proof that all building employees of Service Pipe Line were instructed that they were to make no repairs about the building but same were to be made by the contractor. Not a single act of negligence charged against the defendant has any foundation in the face of- the evidence that the plaintiff was instructed not to make any repairs on the building. In the late case of Hunter Construction Co. v. Watson, Okl., 274 P.2d 374, we reaffirmed the rule in Hanson v. Atchison, T. & S. F. Ry. Co., 184 Okl. 480, 88 P.2d 348, and Kurn v. Reese, 192 Okl. 78, 133 P.2d 880, that where an employee deliberately disregards a rule of instruction of his employer thereby placing himself in a place of danger resulting in his injury that the employee is guilty of primary negligence which would bar his recovery for injuries. Regardless of the motives that may have actuated the deceased in the case at bar, the fact remains he was violating the instructions given -him and others as to repairs on the building. To make what he thought were- necessary repairs on the flag pole, he attempted to lower the pole when he did not know how and it was not shown anywhere that it was his duty to lower the pole. If the pulley was “fouled up” it was the responsibility of the contractor and not Pratt to repair it.
In my opinion it was error to submit the question of whether deceased had been told that only the contractors employees should make repairs since two or three witnesses so testified and this testimony was not denied or rebutted in any way. This is especially true in light of the fact that no evidence was introduced to show that Pratf was to repair the pulley on the flag pole when it did not work properly. This instruction permitted the jury to surmise about a fact about which there was no question.
The majority opinion relies heavily on National Valve & Mfg. Co., v. Wright, 205 Okl. 565, 240 P.2d 769; Connelly v. Jennings, 207 Okl. 554, 252 P.2d 133, and Mealy-Wolfe Drilling Co., v. Lambert, 208 Okl. 624, 256 P.2d 818. I was a concurree in the first and last of these cases and-wrote Connelly v. Jennings and I say that the facts in those cases clearly establish the negligence of the master while in the case at bar such evidence is wholly lacking.
There are many more reasons why the majority opinion is wrong in affirming the trial court but I will stop here.
The defendant was made an insurer in the case at bar and no such legal responsibility was upon it at that time.
I dissent.