Batesell v. American Zinc, Lead & Smelting Co.

FARRINGTON, J.

During the early hours of the night of August 21, 1912, Adrian C. Batesel, a shoveler in defendant’s mine number 3 in Jasper county, who was then about twenty-six years'of age, was fatally injured while attempting to explode a stick of dynamite. His widow brought this suit for damages as guardian and curator of his minor children. At the close of all the plaintiffs’ evidence the court gave a peremptory instruction to find for the defendant, whereupon plaintiffs took a nonsuit with leave, and they have now appealed from an order overruling their motion to set aside the nonsuit.

It is alleged and the evidence shows that Batesel was killed by the explosion of what the witnesses call a “pop shot” while attempting to “pop a boulder.” He had prepared the shot in the nsnal way by placing a stick of dynamite on top of a boulder with a cap and fuse attached. Except for a few exclamations, to which we will later refer, he made no statement before his death.

The basis of plaintiff’s complaint against the defendant and the negligence complained of in the petition was in substance as follows: That deceased was employed on August 20, 1912, as a shoveler in defendant’s mine. That he was inexperienced in the use of dynamite and ignorant of the dangers and risks encountered in the work of firing shots. That defendant knew this, or by the exercise of ordinary care would have known of his inexperience. That it was not customary for shovelers in that mining district to explode dynamite, but that skilled men viere ordinarily kept in the mines for such purpose, and such work, unlike that of shoveling, was extrahazardous. That defendant permitted and required its shovelers in this mine to explode dynamite in addition to shoveling, and that when Batesel was employed he was not informed that he would be required to do this dangerous work. That the defendant failed in its duty to warn and instruct him so as to inform, him how to avoid the dangers. That on August 21,1912, Batesel was negligently required and permitted to explode a “pop shot” and that he did it with reasonable care for one of his experience, but that owing to his lack of knowledge and experience and a failure to know how to avoid the risks he was, through defendant’s failure to warn and instruct him, killed while “popping a boulder.”

The answer was a general denial and a plea of contributory negligence.

It appears that the gravamen of the charge of negligence is that the defendant knowing that Batesel was inexperienced in the handling and exploding of dynamite, a highly dangerous agency, set him to work without giving him warning that he would be required to handle and explode it and failed to instruct and warn him so that he could take precautionary measures to protect himself.

The charge in the petition contains the three elements necessary to fasten liability upon the defendant, namely: (1) The master had knowledge, actual or constructive, of the existence of the risk. (2) That when Batesel was employed by defendant, because of lack of skill and experience, he did not appreciate the dangers of the employment he was entering upon and was therefore excusable. (3) That defendant knew or should have known that Batesel was unskilled in the handling and exploding of dynamite.

The evidence tended to establish the, following state of facts:

Batesel was an adult, endowed with ordinary intelligence, good sight and hearing, and bore no external evidence of any infirmity. He had spent most of his life in pursuits other than mining, but had worked a short time as a shoveler in mines in that district. There is nothing to show that defendant had any knowledge whatever of the past history or experience of the deceased. Defendant operated this mine in which it employed about twenty-five men on the night shift who would shovel into cans the ore and rock which had been broken from the face of the drifts by dynamite shots, and they were paid by the number of cans filled and not for the time they worked. In this mine when in their work the shovelers came upon a boulder they would themselves break it up by what is called a “pop shot, ’ ’ which they would explode by lighting the split end of the fuse with the lamp' they carried. When they had lighted the fuse they would give the alarm by shouting “boulder pop,” and this was a warning to all workmen in the danger zone to go behind pillars left in the mine. Ordinarily several minutes elapsed before the dynamite exploded, after the fuse' was lighted.. There is evidence in the record that the ordinary custom in that mining district is to have special shot firers employed to explode these shots. The evidence shows that defendant permitted its shovelers to pop their own boulders and'knew this was their practice but did have employed on the night shift two experienced men for popping boulders.

We find sufficient evidence to sustain the first element of liability.

On the evening of August 20th, while the ground boss of the night shift and the workmen were waiting' for the whistle to blow .when they would go down in the mine, Batesel appeared and inquired of the ground boss whether he had an opening for a shoveler and was told yes. The evidence tended to establish that he was given no instruction or warning, and in fact there is nothing shown as to any other conversation had with reference to the employment. Batesel went to work and worked throughout the first night. There is evidence that while in the mine during this first night Batesel saw the other shovelers popping boulders. No witness testified to hearing Batesel receive any order to pop a boulder or heard Batesel ask the regular shot firers to pop any for him, and none of the witnesses knew where he obtained the dynamite, fuse and cap used in the shot which he fired the next night and which caused his death. It is shown, however, that these supplies were scattered around the mine near the headings and pillars handy for 'the miners to use. Soon after Batesel went to work the second night he obtained supplies for a shot, and, according to the experienced miner who observed him, prepared the shot as an experienced man would have done. Another shoveler named Merritt, working nearby, was preparing to fire a shot at the same time. Merritt lighted his fuse and shouted the warning. Batesel was down with his lamp in position to light his fuse, and his lanrp was lighted just before he (Batesel) — according to witness Hart— shouted “boulder pop.” He was seen to hold his carbide lamp down to the end of the fuse but the fuse was not seen to “spit” or show evidence of being lighted. All the workmen went to the pillar for safety and while there Merritt’s shot exploded. Batesel asked one of the shovelers to give him a light as his lamp was out and he said he did not get his fuse lighted. The shoveler from whom he got his lamp lighted told him he had better wait and Batesel replied, “I did not get mine lit,” and said he was going back to light his and that he had tried to light it but failed to get a light. Batesel did return and as he came near the boulder the charge exploded and injured him so that he died within ten minutes. Soon after he was injured he said: “I lit the shot myself and didn’t think it was lit and went back on it” — and other statements to the same effect.

The evidence shows that in the firing of these shots an experienced man will know when a fuse is lighted; he will know that it ‘ ‘ spits ’ ’ but once and that is when it is first lighted; also, that if a lighted lamp is held directly in front of the split end of the fuse it will be extinguished by the “spitting;” that a fuse when it is burning will move or crawl, and that there is given off a certain odor from a lighted fuse which he will recognize; and he will know that when a fuse of the kind and length used in this instance is once lighted it ordinarily requires two or three minutes for the fire to reach the cap and explode the shot, but that, as an experienced man, after lighting a fuse, he must not go back to the shot for at least ten to twenty minutes. The evidence will bear the inference that because of a lack of experience or knowledge Batesel did not know that he had in fact lighted his fuse and laboring under that ignorance went back to the shot and was injured.

There is sufficient evidence from which the jury might find that Batesel was inexperienced and that the second element of liability is satisfied by this record.

We come now to the most difficult point in the case, namely: Is there any evidence tending to show that the master knew or had reason to know that Batesel was inexperienced in the work of boulder popping? This necessarily raises the question, Did the deceased so act and conduct himself as to bring home to the defendant the knowledge that he was not experienced and skilled in the work he was set to perform? Or, as a last analysis, Did the deceased assume the risks which necessarily accompanied the work of boulder popping?

In order to hold the master liable for injuries to a servant following a failure to warn and instruct the servant, there must be some evidence tending to show that the master knew, either actually or constructively, that the servant was not experienced. [Fulwider v. Gas, Light & Power Co., 216 Mo. l. c. 597, 116 S. W. 508; Wilks v. Railroad, 159 Mo. App. l. c. 725, 141 S. W. 910.] To hold a master negligent on constructive knowledge of inexperience there must be something to suggest that warning and instruction is necessary. In this case, there is no evidence whatever that the defendant had actual knowledge of Batesel’s inexperience, if in fact he was inexperienced. But it is. argued that because it was not customary for shovelers in that mining district to do their own boulder popping when the deceased applied for work as a shoveler the master should have known that he would not know how to do the work that would be required of him in this mine — that is, to fire shots. We do not think this is enough (in the absence of anything else, and there is' such an absence in this record) to charge the defendant with knowledge that this full-grown man with no outward sign of' deficiency or incompetency was inexperienced. A master has a right to assume that an adult in accepting or engaging in employment is competent to perform that work and that he assumes the dangers ordinarily incident to the carrying on of the work. [3 Labatt on Master & Servant (2 Ed.), sec. 1148 and sec. 1082; Murphy v. Rockwell Engineering Co., 57 Atl. 444; Hardy v. Railway Co., 115 N. W. l. c. 10 and 11; 26 Cyc. 1172 (3); 2 Bailey on Per. Inj. (2 Ed.), sec. 355; Id., sec. 356, on page 952; Johanson v. Webster Mfg. Co., 120 N. W. 832; Kerker v. Bettendorf Metal Wheel Co., 118 N. W. 306, 310.]

But suppose it be granted that because defendant did know that Batesel had only applied for work as a shoveler and that ordinarily shovelers do not have to fire shots and that from this defendant should have taken notice that Batesel was inexperienced from which a duty to instruct in the use to which' he was to put the dynamite would follow, can it be said that a failure to warn him and instruct him when first employed on top of the ground was the proximate cause of his injury?

A shoveler, as generally understood in that district, must know that boulders are to be broken up by the use of dynamite, fuse and cap, and that men specially employed to do that work are on hand. He must therefore know that that is a special employment outside of what he contemplates when he goes down into the mine to work as a shoveler. He must know that it required special men to do that work, that there was a certain skill or experience necessary, and that the exploding of dynamite was necessarily accompanied with certain risks and dangers.

It will not be denied that had Batesel applied to the ground boss for a job as a shot firer and nothing more had been said he would thereby have held himself out as capable and experienced in doing that character of work, and the defendant, in such a case, would have had a right to assume that he knew about it and would have been under no legal duty to warn and instruct him as to shot firing. [3 Labatt on Master & Servant, (2 Ed.), sec. 1145.]

Now when Batesel asked to become a shoveler, it must be conceded that had he been informed before going into the mine that shovelers in that mine must also engage in the work of shot firing, and he had accepted the employment without more, the duty of the master would have been satisfied, because, by knowing that he would be required to handle and explode dynamite as a shot fixer, and, after becoming aware of that fact accepting the employment and engaging in the work of shoveling and shot firing, he would have held himself out as experienced and able to do the work. Because of such conduct the master would not have been required to give warning or instruction.

But Batesel did go into the mine and work the first night, and while in there he saw and observed that the shovelers in that mine fired their own shots, from which fact alone it is claimed he had a right to infer that to fire the shots was a regular part of his duties as contemplated by the defendant when employing him as a shoveler. Batesel realized what his duties under his employment would require him to do; otherwise, he would have had no right to attempt the work of popping boulders. Plaintiffs base their case on the theory that Batesel inferred that he had a right to fire his own shots merely from his observation of the other shovelers doing so, because there is no showing that he was' ordered to do that work. Therefore, if the master failed to warn him that as a shoveler in that mine he would be required to fire shots, Batesel nevertheless had that knowledge brought borne to bim and knew during the first night in that mine what would be expected of him; hence, before he went back the second night he understood what a shoveler’s job meant in the defendant’s mine — as much so as though he had been told by the ground boss when he applied for work; and we find him with that full knowledge going back to the mine without any objection or hesitation on his part and without any request for instructions or intimation that he was not familiar with the work, and preparing a shot and ready to explode it early the second night— and he is said by the plaintiffs ’ witnesses to have prepared the shot as an experienced miner would. So that even though it be admitted that defendant was negligent in failing to inform Batesel at the time of employing him that his duties in that mine as a shoveler would require that he fire his own shots, yet that information came to him through his own observation when he went into the mine the first night to work.

The following rule is laid down in 3 Labatt on Master & Servant (2 Ed.), sec. 1144: “The juridicial consequences of constructive knowledge being the same as those of actual knowledge, it follows that no duty to instruct a servant can be predicated in a case in which the instruction will not add to the knowledge which, under the circumstances, is attributed to him.”

When Batesel saw what shovelers were permitted to do in that mine, the danger was not concealed. It was his experience or inexperience that was then concealed.

We are not at this time measuring Batesel’s conduct to determine whether he was guilty of contributory negligence, but as to what he was holding himself out as able and capable and experienced in doing after knowing he was to explode dynamite and engaging in such work. The question, therefore, as to him going on or quitting his employment in the light of whether he was careful or negligent is not before us, but only the question of whether his conduct was such as to show that he was holding himself out as an experienced man in this line of work.

We are not dealing with a case where a man is employed as a common laborer and is taken out of that regular work and temporarily placed in a dangerous occupation. The authorities make an exception to the general rule of assumption of risk under such circumstances. [Schlavick v. Shoe Co., 157 Mo. App. 83, 137 S. W. 79.]

But here we have a workman who went into defendant’s mine and saw that his ordinary and customary, not temporary, duties would permit and probably require him as a shoveler in that mine to handle and explode dynamite; it was to be his regular employment and he would be subjected to the ordinary risks that accompanied that employment in that mine.

The rule is laid down in 2 Bailey on Personal Injuries (2 Ed.), sec. 361, as follows: “The risks assumed by a servant are not limited to those existing and known to the servant at the time of his employment, but include those which arise during the service, the same as if they had existed when he.entered the service.”

In 1 Shearman & Redfield on the Law of Negligence (6 Ed.), sec. 221, p. 643, the following rule is announced in speaking of the duties of a servant to warn and complain: “They also owe a duty of warning their masters of defects in themselves, which make the work dangerous to them. Thus, a servant who is set to do work to which he is unaccustomed, and which he does not understand, ought to inform his master of that fact; and if, for want of such warning, he is kept at work for which he is unfit, and suffers injury thereby, he is himself in fault, and cannot generally recover damages.” [See, Johnson v. Devoe Snuff Co., 41 Atl. 936; Mundle v. Hill Mfg. Co., 30 Atl. 16, 18; St. Louis Cordage Co. v. Miller, 126 Fed. 495.]

In the case of Murphy v. Rockwell Engineering Co., 57 Atl. 444, the court we think declares the true rule as to an adult’s assumption of risk by engaging in certain work.

In Millar v. Madison Car Co., 130 Mo. 517, 31 S. W. 574, an adult was employed in the pattern shop of a foundry and was sent without objection on his part to another department, and, without informing himself as to the method of operating a certain machine where he was to perform certain duties, began working and. was injured. The court used the following language: “. . . but if it be true that it was not originally within the scope of his employment to measure the die, he, of course, knew it when he received the order, and he made no protest or objection of any kind, and when he voluntarily undertook the performance of this new duty, if such it was, he must be held to have assumed the ordinary risks pertaining to such employment.”

Plaintiffs assert that the difficulty with defendant’s contention is that it loses sight of the full duty of the master to the servant in reference to warning and instructing an inexperienced servant as to abnormal and extrahazardous risks and dangers.

The cause of the death of Batesel was not due to an abnormal risk or danger. There is nothing any more abnormal about a stick of dynamite exploding when prepared with a lighted fuse and cap than there is that a cake of dough will not explode under the same conditions. The fact that there is an extrahazardous occupation does not necessarily make the risk abnormal or extraordinary. It does not follow because a risk is great that it is abnormal. The dynamite in this case did exactly what it was intended to do and must be expected to do under the same conditions at any time or place. What the law counts an abnormal risk is putting a servant at employment which must be performed out of the ordinary way in which such work is usually done, or in which the machine or instrumentality used usually performs or works, changing the conditions without his knowledge. For instance, in the use of explosives, if a master has been furnishing a certain kind of explosive to be used in his work with which his servants are familiar and then without warning puts in an explosive apparently the same but in fact of a much more dangerous character, and a servant is injured by reason thereof, or, if a master has been furnishing a certain kind of fuse which required five minutes to burn and explode the dynamite and should change to a fuse apparently the same but which required but two minutes to explode the dynamite and by reason thereof a servant is injured, there would in either instance be liability on the master for subjecting his servant to the abnormal condition of doing the work — made abnormal because the change had been made in the instrumentality; the master had changed the ordinary condition, and the servant would have a right to rely on the ordinary condition or normal condition as he had known it theretofore to exist. It must be borne in mind that the charge in our case is. not furnishing an unsafe place in which to work caused by any defect in the instrumentality furnished, nor that there was an abnormal or extrahazardous risk occasioned by any defect or change from the ordinary method of doing the work, the charge being (and the real cause of Batesel’s death was) that on account of his inexperience he did not know when a fuse was lighted, and that defendant knew of this ignorance on the part of Batesel or ought by the exercise of ordinary care to have known of it and failed to enlighten him. If popping boulders made the risk of Batesel’s employment abnormal it. was solely because of his inexperience, and before there can be a liability for an injury growing out of any abnormal risk, the master must know or have reason to believe that abnormal conditions exist. The proof certainly fails to show that there was any knowledge on. the part of the defendant one way or the other as to. Batesel’s experience or inexperience. Offering himself as a shoveler without more did give the defendant the right to believe that he knew what boulder popping was in mining because as a shoveler in that district he would call on skilled men to do that work for him.

Appellants contend that there must be “such instruction as will enable him to avoid injury,” citing 3. Labatt on Master & Servant (2 Ed.), sec. 1159, p. 3078. Upon turning to that text we find that what is there; said is with reference to and under the heading of-“Sufficiency of the instruction,” so that the author is dealing with a question, presupposing that notice has come to the master of the servant’s inexperience — presupposing as an established fact the very question we have to decide here, which is, Is there any evidence that brings home to the master the knowledge of the alleged inexperience of Bate sel? So, also, as to 1 Bailey on Personal Injuries, sec. 309, pp. 665, 666. These two text-writers cite cases to support their text, an examination of which will reveal that in those cases either youth or some other positive or direct evidence about the servant was known to the master that would besóme notice to him or to a reasonable man that the servant was inexperienced.

If Batesel’s ignorance of the special experience required is excusable, it may also be said that the ignorance of Batesel’s ignorance is excusable..under the facts.

Our attention has been directed to 3 Labatt on Master & Servant (2 Ed.), sec. 1146, p. 3036, which, we find, is dealing with the question under the head of abnormal and extraordinary risks. We have already discussed this, but the note under this section cites many cases, and we will look for a moment at the Missouri cases there cited: In Edington v. Railroad, 204 Mo. 61, 102 S. W. 491, where, in the work of coupling cars it was not usual for an engine to work at each end of the train, on the particular occasion there were two-engines working which was unknown to the switchman who was injured, and because he was not notified by the yardman that the coupling of this train was out of the ordinary — was abnormal, and involved an extraordinary risk — the'master was held liable. Would there be liability had the switchman seen for himself that there were two engines working? In Schlavick v. Shoe Co., 157 Mo. App. 83, 137 S. W. 79, we find it said that a-boy seventeen years of age was peremptorily ordered,, although objecting, that unless he did the work of removing something from a revolving shaft he would he discharged.

"What is said by Labatt (Vol. 3, sec. 1118, pp. 3019, 3050) is more applicable to the question with which we are dealing: “For the purpose of applying that distinction the courts start with the fundamental hypothesis that, by entering an employment in any capacity, an adult holds himself out as being competent to perform the duties of the position; or as the rule is also expressed, that the acceptance of any given employment is a representation that the servant understands the nature of the service.”

The same text-writer (Vol. 3, sec. 1082, p. 2867) in discussing injuries occasioned by the act of the unfit servant to himself says: 1 ‘ The effect of his knowledge is to bring the situation within the scope of the principle, that, if a person of apparently full age and complete understanding undertakes certain duties, he is presumed to appreciate and accept the risks incident to those duties.” And the note thereunder is as follows: “Accordingly, an employer who is hiring a man twenty years of age is not bound to examine him as to his experience and capacity with a view to ascertaining whether he needs instruction as to the dangers of the work. [O’Neal v. Chicago & I. R. Co. (1892), 132 Ind. 110, 31 N. E. 669.] ”

In this case it cannot be said that because to an inexperienced servant the danger of not knowing when a fuse is lighted is latent and therefrom springs a duty to warn, for the reason that as to whether it was a latent or patent danger all resolves itself back to whether the servant was in fact inexperienced, and the duty springs from notice thereof; to an experienced man the danger would have been patent, while to an inexperienced man it would have been latent. Before a duty to warn attaches, we must first ascertain whether from the evidence there was anything in Batesel’s personal appearance or conduct, or whether there was any notice to the defendant of Ms inexperience, that would make the master know or have reason to believe that to Batesel the danger would be latent.

It is said by Labatt (Vol. 3, see. 1148, pp. 3051, 3052): “On the other hand, unless the defendant knew, or ought to have known, of some occasion for instruction, Ms omission to give it cannot be regarded as the proximate cause of an injury which the plaintiff received owing to the want of such instruction. The mere fact that he was injured because he was inexperienced or ignorant of the danger and hazard will not suffice to charge the defendant.” Following the above language, what the author says as to a jury question is supported by cases cited in the note, thereunder, an examination of which will reveal that in each there was some notice brought to the master from wMch inexperience could be inferred, and hence it became a question “under all the facts” for the jury.

We have gone extensively into tMs question because it will not do to rely upon excerpts from textbooks or from legal opinions without first ascertaining just what state of facts was under consideration when the language employed was used. We therefore must read into what was said by the court in the case of Vitto v. Farley, 36 N. Y. Supp. 1105, the facts set forth in the opinion that a common laborer known for two months, to be merely such was taken out of a regular position and put to doing extrahazardous work. We' quote from that opinion on page 1105: “No common laborer could, with due regard to safety, be permitted to undertake it, no matter how willing or eager he might be, unless he were first told what the blast contained, or interrogated as to Ms knowledge.” (Italics, are ours.) If knowing “what the blast contained” would excuse the master in that case, why would not knowing that he was to explode dynamite, wMch Batesel saw for himself, not excuse the.defendant on our'case?

While he was not toíd- what shoveling for the defendant meant when he was hired, Batesel found that out for himself the first night he worked; he therefore knew what he was expected to do, which relieved the master of conveying to him the then useless information that he would be expected to handle and explode dynamite and pop boulders.

In the case of Warren Vehicle Stock Co. v. Siggs, 120 S. W. 412, the servant’s eyesight was defective and he had so informed the forejnan, and the opinion starts out by stating that there was evidence tending to show that the foreman knew he was inexperienced.

In the case of Felton v. Girardy, 104 Fed. 127, the court was-dealing with a case where a man in defendant’s employ was ordered to do that which required skill and experience and the master had notice of his inexperience by what he said, to-wit: “Well, I don’t know what to do in there, and I don’t know how to do it.”

The holding in the case of Louisville & N. R. Co. v. Miller, 104 Fed. 124, has our approval.

The rule declared in Pinney v. King, 107 N. W. 1127, was applied to a master who took a minor from his regular employment and put him to handling dynamite. More notice of his inexperience also came to the master as is shown on page 1128: “It appears that he was nervous and somewhat agitated during the time the dynamite was being warmed, because, in his opinion, the boiler was overheated, and that he called the attention of the foreman to the fact. The foreman assured him that it was all right, and ordered him to let it alone. ’ ’

In Dell v. McGrath, 99 N. W. 629, we find this language: “At the beginning of the employment, plaintiff was a young man, twenty-one years of áge, and without any experience whatever in the logging business, which fact he communicated to defendant.” (Italics are ours.)

As to what character of cases the language used by Labatt (Sec. 1151, p. 3059) applies will be seen by reading the authorities cited in support of the text, in all of which there was brought home to the master either notice of minority or some other positive fact from which a reasonably prudent person would naturally infer inexperience.

What is said in Gray v. Commutator Co., 89 N. W. 322, is with reference to a minor (something from which inexperience might be inferred) operating a machine about which it could not be said that to operate was dangerous, apparent to everyone. This machine was out of repair and for that reason did not work like the one on which the servant had been employed. The machines, although apparently the same, were different, which was unknown to the operator, making the case fall within the rule as to abnormal risks.

In Welch v. Bath Ironworks, 57 Atl. 88, plaintiff, a common laborer, who was not using dynamite in his work, was set to picking dirt at a place where the day before the master had failed to explode a charge. The plaintiff was unaware that there was any dynamite where he was at work and in no way was he using or attempting to use dynamite in his employment or to have anything to do with it. The place where he was set to work was, so far as he knew, free from dynamite. He was, therefore, without being told or able to see for himself, subjected to an abnormal risk. The rule therein announced would be applicable to our case had the defendant sent Batesel to shovel and he had in shoveling been killed by striking his shovel against and thus exploding a charge of dynamite which he did not know was there.

In Marklewitz v. Olds Motor Works, 115 N. W. 1000, the notice of inexperience was in setting at a dangerous task a sixteen year old boy who had been employed to learn the trade.

In Mather v. Rillston, 156 U. S. 391, 39 L. Ed. 464, the plaintiff was taken from his regular employment of loading tram oars and set to work near where some dynamite used by the defendant exploded. He was not handling or touching or in any way meddling with the explosive or attempting to do anything with it. It was discharged by the jarring of machinery.

In Dowling v. Allen & Co., 6 Mo. App. 195, the plaintiff was a boy seventeen years of age, and, when hired, the foreman was informed, had no experience.

Plaintiff was thirteen years of age in the ease of Coombs v. New Bedford Cordage Co., 102 Mass. 572.

Our attention has been called to the case of Bromley v. Smith, Beggs & Rankin Machine Co., 12 Mo. App. 594. The law has never been declared that the use of all machinery whether running or idle is an unusually hazardous business, and that to operate all machinery requires much skill and experience, and that ordinary intelligence tells the average man that to work about machinery is, by common knowledge, extrahazardous employment. But the law does say that the average man, regardless of his occupation, is held to a knowledge that to explode dynamite is coupled with great danger and is done with extreme risk even to skilled users thereof. When the ordinary man once knows that he is using or meddling with dynamite he knows that if it is not handled with care and skill danger is in his pathway, and when he attempts to explode dynamite, knowing that what he is doing is trying to explode it, he must be held to assume the risk that goes with that occupation. Working with some machinery is not ex-trahazardous. Can the same be said of any dynamite ?

When an inexperienced man is working under the eyes of his master his inexperience will become manifest, and if he works for a long enough time for a reasonably prudent man to see his inexperience, notice of the same can be said to have come to the master; at least it becomes a jury question whether under such .circumstances.the master did have notice. The plaintiff in Deeds v. Railroad, 157 Mo. App. 464, 137 S. W. 1013, was inexperienced and had worked for about two weeks before he.'was injured, and it therefore was k jury question whether the master had notice of his in- - experience.

In Naughton v. The Laclede Gaslight Co., 123 Mo. App. 192, 100 S. W. 1104, the person injured, set to performing the dangerous task of'cleaning out ashes from under a boiler which he had never done before, had worked in defendant’s blacksmith shop for about -two months. There is no evidence that he knew as a blacksmith that to clean out the ashes would be extra--hazardous (as a blacksmith or as any other man of ordinary intelligence does know that exploding dynamite is ' extrahazardous). The opinion in that case shows that there was some evidence that defendant knew that "Naughton was inexperienced because it discloses that the vice-principal did undertake to warn and instruct him. The trouble there was that, recognizing his inexperience, the master did not give him sufficient warning and instruction. The giving of some instruction to him. was some evidence from which it could be inferred that the master knew of the servant’s inexperience. When the. duty to instruct once attaches it must be sufficient • to protect. In our case we are to determine whether the duty to- instruct at all arose.

It becomes apparent that it will not do to apply the law as declared in cases where the evidence or notice of 'inexperience'is assumed as an established fact from the evidence introduced, nor as declared in cases •where the injured servant is taken temporarily out of one employment and placed at a different and hazardous employment, nor where a duty to instruct has arisen and there is insufficient warning,.nor cases involving abnormal risks, nor the rule stated in the cases .where a servant is peremptorily ordered to perform a 'dangerous- task and does so through fear of losing his Employment. The defendant in onr case was dealing with an adult, from all appearances physically and mentally fit, with no knowledge as to what the servant’s experience was one way or another, and engaged him to work not in a temporary employment hut at a permanent occupation. We think the law clearly is that some positive -notice of inexperience is required, rather than a mere absence of evidence of experience, to fasten liability on the employer under the third element necessary to a recovery, to-wit, notice of inexperience. To hold otherwise would in all cases place on the master the burden of proving that he had knowledge of the servant’s experience, rather than requiring the plaintiff to carry the burden of proving knowledge of inexperience. It would make the master an insurer. It is for the protection of the public and fellow-servants where it is proper to ascertain the qualifications of applicants of unknown experience.

We hold that there was a failure of proof as to the third element necessary to a recovery; and that Batesel, when he voluntarily undertook to fire his own shot, with full knowledge of the character of the work he was undertaking to perform, having relieved the master of informing him that it would be necessary to pop boulders if he worked as a shoveler in that mine by his own observation the first night he worked there, by engaging in the work, impliedly held himself out and contracted with the defendant as being an experienced workman in that line of work and thus was charged with assuming all risks ordinarily incident to shoveling and popping boulders as done in defendant’s mine; and to be injured in that line of work by a failure to know whether a fuse is lighted is a risk that is ordinarily incident to that occupation.

On the other hand, admitting that the defendant was negligent, Can a full-grown, ordinary, man, who not only must know that to explode dynamite is extremely hazardous but as a shoveler at least for some time in that district also knew that boulder popping is a work requiring skilled and experienced men furnished specially to do it, and knowing that he is inexperienced and has never attempted it, voluntarily undertake the job because he sees someone else doing it, and yet claim that in such conduct he is exercising reasonable care for his own safety? We think not. If inexperienced, he, by undertaking a work so glaringly dangerous, or by going back to the charge after having been warned not to do so by an experienced miner, is guilty of negligence as a matter of law. The answer pleaded his negligence and the evidence offered by the plaintiff sustained it.

Under any view the result reached by the learned trial court is correct.

The judgment is affirmed.

Robertson, P. J., concurs. Sturgis, J., dissents in a separate opinion requesting that this cause be certified to the Supreme Court, and it is so ordered.