(dissenting).
This action for damages is the result of personal injuries sustained by plaintiff, Grace M. Platt, while acting as a super in the crucifixion scene of the Passion Play. The defendant, *20Josef Meier, is owner of the play and portrays the Christus in all its productions. The jury returned a verdict of $18,000 in favor of plaintiff and defendant appeals. As grounds for reversal he alleges (1) Insufficiency of the evidence, (2) Improper instructions, (3) Admission of improper evidence and (4) Misconduct of counsel.
*19“we * * * go screaming, running down the hill. * * * you move running, shouting down the hill. * * * Well, the lights are turned off all over the place and then the lightning starts flashing as we start running, screaming. And thunder, and everybody yelling, and everybody working up an excitement.- * * * and everybody's trying to get there at once and I have always taken it real slow around the first curve and then run and scream with the rest of them. * * * Do I know it? Yes."
*20The Passion Play portrays, the last seven days of the life of Christ. It was established in 1938 at Spearfish, South Dakota, by the defendant Meier who is now its sole owner, manager, and supervisor. The play is presented in an open amphitheater every Tuesday, Thursday, and Sunday night during the summer months. It consists of twenty-two different scenes with no intermission. A professional cast of from 80 to 90 persons is regularly employed as actors, stagehands, ushers, ticket sellers, ticket takers and car parkers. In addition, each performance requires 120 to 150 supernumeraries or "supers" as they are commonly called. These people receive no compensation. They are furnished under an arrangement with the Spearfish Chamber of Commerce and various churches. A participating church agrees to furnish a certain number of people for each performance and is paid a certain sum by the Chamber of Commerce. Defendant pays nothing.
The amphitheater is located on a hillside on the western edge of Spearfish. The stage consists of the main city gate, the home of Mary and Martha, Pilate's house, center stage, temple building, council platform, the Garden of Olives and tomb area. Thereafter, there is a bridge, and a gravel pathway leading up to the crucifixion area on the Hill of Golgotha. As the hill slopes west to east the audience faces east with the main city gate to the north and crucifixion hill to the south.
Originally the crucifixion scene took place on top of the hill, but in 1947 this was moved lower down the hillside where two plateaus were provided. The higher level is now used for the crucifixion and participants in the play are stationed on the lower level. From the bridge to the plateau where the participants stand during the crucifixion scene there is a steep rise of approximately 18 feet. Except for the gravel pathway the side *21of the hill is covered with rocks, weeds, bushes, stones, and gravel. As the pathway nears the first plateau there is a sharp turn to the left and a sharp rise of about four feet to a level grassy area. The ledge of this lower plateau is not protected in any manner by a fence, rail, or hedge.
On the evening of July 11, 1963 plaintiff went out to participate in the play as a super with her friend, Mrs. Belle Yanzick. She was given a costume and took part as usual in several scenes prior to the march to Golgotha. The march entered the stage from the main or north gate and proceeded in a southerly direction. Roman Guards, on horseback, led the procession followed by Temple Guards and the two thieves. Then came defendant portraying Christ carrying the cross. He was followed by a group of priests and citizens composed of professional actors and supers including the plaintiff and her friend. The procession proceeded past the buildings on the stage area and continued down to the Garden of Olives and tomb area, where persons under 14 years of age and others who do not desire to proceed further drop out by going behind the tomb. Mrs. Yanzick dropped out at this point and plaintiff continued on by going across the bridge and up the pathway to Golgotha.
Some 25 or 30 participants continued in the procession. When they reached the plateau they were spaced and stationed by priests in charge. Plaintiff was placed directly in front or north of the higher plateau upon which the crosses stood.
After the scene in which Christ is crucified a cue is given by defendant. All lights are turned off and an electrical storm is simulated by means of a tape recording and flashing lights. During the storm participants descend the hill, running, screaming, and yelling to express fear, excitement, and consternation. It was during this part of the crucifixion scene that plaintiff was injured.
When the cue was given plaintiff turned to her right and commenced walking toward the graveled pathway. As she neared this area of descent she was suddenly struck from behind and knocked over the ledge of the plateau. She landed *22about 8 feet down the rocky hillside receiving the injuries complained of. Prior to being struck plaintiff had not seen anyone running or lunging at her. Two other persons, who probably were boys acting as supers, also fell with her. However, they left without rendering aid and without being positively identified.
As a super plaintiff was serving without pay or expectation of reward. She was, therefore, a gratuitous employee. Sec. 225 Restatement, Second, Agency. This is a lowly position of employment. Only those who render services for pay under a contract express or implied have a remedy under our Workmen's Compensation Act and "those who serve gratuitously are excluded from its purview." Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558. However, an employer is responsible to a gratuitous employee for his want of ordinary care, SDC 17.0203, but in an action for damages a gratuitous employee is subject to the common law defenses of contributory negligence and assumption of risk, when applicable under the facts.
Plaintiff alleged the proximate cause of her injury was defendant's failure to provide a safe area for the pageant and failure to guard the area with a suitable fence or guardrail. In this respect a master has a personal, continuing, and nondelegable duty to provide a suitable and safe place to work for his employees and servants. He is not an insurer of their safety, but is responsible to them for his negligence or want of ordinary care in failing to provide a reasonably safe place to work. 56 C.J.S. Master and Servant § 183 et seq.; 35 Am.Jur., Master and Servant, § 183, p. 610. This includes the duty of providing a sufficient number of competent fellow servants and supervising and controlling their conduct so there is not an unreasonable risk of harm to other servants. Sec. 505 et seq. Restatement, Second, Agency. The fellow servant rule does not absolve a master from his own negligent conduct.
In providing a safe place to work defendant was under a duty to exercise ordinary care under the circumstances. The degree of care required was commensurate with the risk of harm reasonably to be anticipated. This duty of care extended to the working conditions under which plaintiff and other participants *23in the pageant were required to descend the Hill of Golgotha in darkness after the crucifixion. It was for the jury to determine whether or not defendant furnished a safe place to work under the circumstances, and took the necessary precautions to control the conduct of fellow servants. Reasonable minds might well differ in this regard. Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739.
The evidence, on the other hand, presented no issue of contributory negligence. Defendant testified he did not know of any act of neglect on plaintiff's part. She was in his employ and her actions were controlled and directed by him. She stood where stationed and walked where directed. There is no evidence she placed herself in an unauthorized place, voluntarily or knowingly exposed herself to danger, or otherwise conducted herself in a negligent manner.
A servant may assume a risk of harm caused by the "unsafe state of the premises or other conditions of the employment, if the servant, with knowledge of the facts and understanding of the risks, voluntarily enters or continues in the employment". Section 521 Restatement, Second, Agency. Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558; Bartlett v. Gregg, 77 S.D. 406, 92 N.W.2d 654. Assumption of risk was not established in this case as a matter of law. The jury could reasonably find or infer from the evidence that plaintiff had no knowledge or was not aware of the risk of harm arising from younger members of the pageant cast shoving, pushing, and running down the Hill of Golgotha during the crucifixion scene. Defendant was aware of such conduct as it was a recurring problem. This is reflected in the following extracts of defendant's testimony:
"Q. And was there anybody there other than the supers to direct the movement down the hill, off the plateau and on down the hill?
"A. No, that was left to each individual. There was no direction coming down the hillside. Everybody took care of their own descent from the hill."
*24Defendant then admitted there was no fence, railing or hedge on the ledge of the plateau. When asked why he didn't consider this a dangerous spot he testified:
"A. The area represents part of the scene which does not call for a fence and the people participating in the scene have been directed to conduct themselves properly in the area, therefore, there was no danger."
Defendant further testified about his knowledge of the conditions existing during the crucifixion scene:
"Q. All right. Now I'll ask you this: In the 24 or 25 years that you have conducted this Play and put it on in Spearfish- and prior to the 11th day of July, 1963, had you ever seen anybody get pushed or bumped into when they started running and leaving that hill?
"A. No, I've never seen anybody.
"Q. Had anyone ever complained to you that that had taken place prior to the 11th day of July, 1963?
"A. Yes. Yes.
"Q. I see. Now, did any of those complaints, Mr. Meier, any of those complaints allege and state that they were pushing people and knocking them down?
"A. No. Pushing, yes, but knocking down, no."
"Q. Now, I want to clear up something else. Do I understand your testimony now that these complaints you had over all these years did not concern what the youngsters did or what happened up on this plateau?
"A. In some cases, yes.
"Q. Well, now, how many complaints did you have as to misconduct of youngsters or others on this plateau? I don't want to mix it up with other instances.
*25"A. That is very difficult to ascertain how often that occurred. But word has come to me youngsters were running straight down the hill and I asked adults to help stop these children running down the hill because they not only endanger themselves but other people at the lower end of the hill."
The application of the fellow servant rule was properly submitted to and determined by the jury. The jury evidently concluded that plaintiff's injuries were not caused solely by the negligence or misconduct of the fellow servant who knocked her off the unguarded embankment. They apparently found defendant was negligent in the performance of his nondelegable duty of providing a safe place to work which was a proximate cause of her injuries. When such negligence combines and concurs with the negligence of a fellow servant in causing harm to a servant the employer is responsible for the resulting harm,.
Instruction No. 8 informed the jury that "an employer owes to his employee the duty to make safe the place where they are required to perform their services. Failure therein renders the employer therein liable to an employee who may have sustained injuries as the proximate result of his neglect." As previously stated an employer has an obligation to provide a "reasonably safe place to work" or as otherwise expressed to "exercise ordinary care in providing a safe place." Standing alone Instruction No. 8 is not a complete or correct statement of an employer's duty. However, elsewhere in the instructions negligence is correctly defined as "want of ordinary care or skill" and the jury was advised to apply that standard in each instance to conduct under consideration. When read and considered as a whole the jury was correctly advised that defendant was only obligated to exercise ordinary care in providing a safe place to work. "It is not necessary that the law applicable to all questions in a case be stated in each instruction in a series, it being sufficient if all, when considered as a whole, state the law correctly." 53 Am.Jur., Trial, § 546, p. 435.
Defendant assigns error with reference to other instructions given and refused by the court. We have carefully considered *26these objections and conclude the instructions in this case cannot be commended for their clarity, completeness, and continuity nor can they be condemned to the degree of constituting reversible prejudicial error. As a whole they advised the jury as to the issues and the applicable law.
In relating a conversation had with defendant eleven days after her accident plaintiff testified he told her "his daughter had been run into similar only from the back and she had stumbled a few steps and was lucky enough to catch herself". In view of defendant's denial of any danger such evidence was relevant and competent to show his knowledge of the probability of harm arising from the conduct of his employees during performances of the pageant. Allen v. McLain, 75 S.D. 520, 69 N.W.2d 390. It may be inferred such incident was prior in time to plaintiff's accident.
During the course of defendant's examination as an adverse witness he was asked what arrangements had been made for a doctor to be present in the event of accidents. This was objected to as being immaterial and the objection was sustained. Thereafter, in order, defendant was similarly asked what arrangements had been made for an ambulance, a first-aid kit, and a nurse. Objections to these questions were all sustained. Defendant contends his motion for a mistrial should have been granted for misconduct of counsel in pursuing an immaterial line of inquiry. The record in this regard shows no objection was made to plaintiff's pursuing this line of inquiry and the court was not asked to admonish plaintiff to desist or to instruct the jury to disregard the same. As each question was asked an objection was made and the court ruled thereon. This line of inquiry was not material to any issue in the case and objections to the questions were properly sustained. Misconduct may certainly consist of attempting to get before the jury matters not in issue by asking improper questions or making improper offers of proof. 39 Am.Jur., New Trial, § 65, p. 80. However, ’the determination of whether or not misconduct of counsel warrants a new trial, of necessity, rests almost entirely in the discretion of the trial judge. He is in a position to sense, if any, the pre*27judicial effect of such misconduct. In the absence of a clear abuse of that discretion his ruling must be sustained.
The judgment appealed from should be affirmed.