| Mo. Ct. App. | May 6, 1912

GRAY, J.

On May 20, 1911, the defendant was engaged in mining in Jasper county, and plaintiff was in its employ as a shoveler in a -drift beneath the surface. It was his duty to shovel the ore and dirt into cans when it had been loosened from its natural position. The dirt was loosened by discharging powder that had been placed in holes drilled into the face, roof and walls of the drift. The holes were drilled by machinery, and the servant operating the machine was known as a machine man. It was necessary from time to time to move the machine and set it up- in a new place, and in order to do so the broken dirt had to be removed. This work was generally performed by the shovelers, but the machine man sometimes assisted. The plaintiff and his helper and the machine man were -engaged in moving loose dirt so the machine could be installed in a place where it was desired to use it. The plaintiff’s testimony tends to show that the machine man was standing a few feet from him, and at a higher point in the drift, and plaintiff and his helper were shoveling the dirt into cans from a lower point; that while they were thus at work, the machine man, without any warning, threw a large stone which struck the plaintiff’s foot and injured him.

The defense was, that plaintiff negligently put his foot in front of the stone. The plaintiff claimed he ■saw the stone coming and threw out his fóot for projection. If plaintiff’s testimony is true, then the defendant ’s servant threw the stone against him,. and no excuse was offered for the act. On the other hand, if defendant’s testimony is'true, the stone was not *539thrown so as to strike plaintiff, and only came in contact with his foot through his own negligence. It ig apparent that the question of negligence was for the jury, and it was submitted and the jury returned a verdict for the plaintiff.

It is claimed that plaintiff’s first instruction omitted entirely the issue of contributory negligence. • In this, counsel for appellant are mistaken, as the instruction required the jury to find that plaintiff was, at the time, in the exercise of ordinary care. But if the instruction had entirely omitted the issue of contributory negligence, it was not erroneous, because in an instruction given for the defendant, the question was fairly submitted. [Meily v. Railroad, 215 Mo. 567" court="Mo." date_filed="1908-12-23" href="https://app.midpage.ai/document/meily-v-st-louis--san-franoisco-railroad-8016680?utm_source=webapp" opinion_id="8016680">215 Mo. 567, 114 S. W. 1013.]

The petition alleged that the machine man, who threw the stone, and plaintiff, were fellow-servants, and one of the instructions given in behalf of plaintiff ignored this question, and appellant claims that on account thereof, it was erroneous. This contention is based on the fact that defendant offered some testimony tending to prove that the machine man was not a fellow-servant, but had authority to instruct plaintiff at times about his work and to order plaintiff to remove the dirt so that he could set up his machine. We cannot see how this is material. If the machine man was a fellow-servant, then it is conceded that the ■defendant is liable for his negligence, and it must also be conceded that if he represented the master in ordering the plaintiff to remove the dirt,- then the defendant is also liable for his acts.

The last assignment of error is leveled against instruction 4, given in behalf of plaintiff, and which reads as follows:

“The court instructs the jury that while plaintiff in accepting employment of defendant assumed all those risks incident to the employment in which he was engaged, yet plaintiff did not assume those risks, *540if any such there were, arising from the negligence, if any, of defendant’s employee, Henry Breedlove.”

Appellant claims the instruction assumes Breed-love was negligent. We do not so construe the instruction, as it told the jury that plaintiff did not assume the risk of being injured from the negligence, if any, of the machine man. In other words, it was for the jury to say whether the machine man was guilty of any negligence.

The questions of defendant’s negligence, plaintiff’s contributory negligence, and the extent of his injuries, were- for the jury, and we believe were properly submitted.

The judgment will be affirmed.

All concur.