Court of Appeals (81 Mo. App. 356) in this case, quotes with approval a statement of the rule as laid down by Shearman & Redfield in their work on Negligence (volume 1 [5th Ed.] § 99) as follows: "But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was more immediately caused by the omission of the defendant, after having such notice of the plaintiff's danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precaution as a prudent man would take under similar notice. This rule is almost universally accepted." We have seen it is the settled doctrine of this court. Dunkman v. Ry. Co., 95 Mo. 244, 4 S. W. 670; Kellny v. Railway, 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783; Hanlon v. Ry., 104 Mo. 389, 16 S. W. 233; Czezewska v. Ry., 121 Mo. 201, 25 S. W. 911; Morgan v. Ry. Co., 60 S. W. 195, 159 Mo. 262. And the same doctrine is announced by the Supreme Court of the United States. Inland & Seaboard Co. v. Tolson, 139 U. S. 557, 11 Sup. Ct. 653, 35 L. Ed. 270; R. R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.

Indeed, the learned counsel for defendant do not controvert this statement of the law, but complain bitterly that the court refused to submit to the jury whether plaintiff's negligence did not directly contribute to his injury. The defendant's answer specifically tendered this issue. It was submitted to the jury in the tenth instruction given by the court in the following terms: "The court instructs the jury that if you find from the evidence that, at the time the wagon was struck by the defendant's car, the plaintiff was not exercising ordinary or reasonable care, and that plaintiff's failure to exercise such care directly contributed to produce the injury of which plaintiff complains, then your verdict should be for defendant, unless you further find from the evidence that the motorman in charge of defendant's car saw, or by the exercise of ordinary care would have seen, that the wagon in which plaintiff was riding and driving was in danger of being struck by said car, in time to have prevented the accident complained of by the exercise of ordinary care." The court properly added the qualification upon which plaintiff's case was predicated. It has been so repeatedly ruled that it is not error to refuse an instruction when the same has already been given that it is deemed unnecessary to cite precedents to that effect.

This instruction is assailed because it is asserted that, if plaintiff's negligence directly contributed to his injury, he cannot recover at all. Clearly it is the law of this state

that mere negligence without any resulting damage does not bar a recovery by a plaintiff. It is only when the plaintiff's negli gence directly contributes to his injury thar it precludes his recovery. Moore v. Ry., 126 Mo. 265, 29 S. W. 9. The contention of defendant, then, in effect is that, if plaintiff is guilty of contributory negligence, then he can never recover, even though defendant recklessly and wantonly injured him after discovering his peril, and when by the exercise of ordinary care it could have prevented harm to him. This is not the law of this state. When a defendant sees, or by the exercise of ordinary care can see, the peril of a plaintiff, caused by the latter's contributory negligence, in time to avoid injuring him, then plaintiff can recover notwithstanding his contributory negligence. This is now the accepted and settled exception to the general rule that plaintiff's own contributory negligence bars a recovery. It was so expressly ruled in Kellny v. R. R., 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783, and the doctrine of that case has been so recently reviewed and reaffirmed in Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195, that it would be a waste of time to repeat what has been so pertinently said in those cases.

This case is much stronger than the Morgan Case, in that in this case the plaintiff was driving along a public highway on which he had a perfect right to drive by day or night, and in so doing was not guilty of any negligence. His driving along said track under the circumstances only took on the hue of negligence from the fact that defendant also had a right to run its cars on said street, and that, unless plaintiff should keep a watch out, one of defendant's cars might be run against him. As said by Judge Marshall in Oates v. Ry. Co., 168 Mo. 544 et seq., 68 S. W. 908: "The sum of the adjudicated cases bearing upon the relative rights and duties of street cars and citizens traveling in vehicles drawn by horses or other animals is that both have a right to use the street, but that neither has an exclusive right. * Because a street car carries more people than any other kind of a conveyance, or because it is authorized to run more rapidly than a vehicle can ordinarily be driven, or because the rush and restlessness of the age make unreasonable demands for more and more rapid transit along the crowded thoroughfares of populous cities, it does not follow that a street car can be run in disregard of the rights of persons traveling by other means, nor that a street car company is exempt from the common-law duty of every one to exercise ordinary care, nor that it is only liable where its agents act wantonly, maliciously, and heedlessly."

While it was plaintiff's duty to pull out of the way of the defendant's car when it reached him, and while it was true the defendant had a superior right on its own tracks, it did not have a license to run its cars at a reck

less rate of speed along a public highway, regardless of the danger of collision with other travelers thereon. It is true plaintiff did not count on the excessive speed of the car as negligence, and hence it was not an issue in the case; but the court very properly refused to declare that there was no negligence on account of any rate of speed, and the same may be said as to the refusal to charge that defendant could not be held liable for a failure to ring its bell or gong that night. The plaintiff had not counted on such failure, and whatever testimony went in on that point was admitted without objection, and defendant got the full benefit of its own evidence on that point. Although not made the basis of a recovery by plaintiff, the ringing of a bell as testified to by defendant's witnesses, or a failure to do so, was material to the main issue whether defendant did all it could to avoid the injury after its motorman discovered, or ought to have discovered, the plaintiff on the track. It was not entitled to an instruction declaring this evidence immaterial after introducing it, and after its failure to object to plaintiff's evidence that the gong was not sounded so as to apprise plaintiff of the approach of the car.

We think the case was fairly tried, and the judgment was for the right party, and it is accordingly affirmed. All concur.

CHAMBERS ▼. CHESTER et al. (Supreme Court of Missouri. March 4, 1903.)

MASTER AND SERVANT-INJURIES TO MINERPREMATURE EXPLOSION OF BLAST-USE OF HIGHER EXPLOSIVE-NOTICE ΤΟ MINERQUESTION FOR JURY-MATERIALITY-AVOIDANCE OF DANGER-ASSUMPTION OF RISKINSTRUCTIONS-EVIDENCE OF PLAINTIFF'S MARRIAGE-HARMLESS ERROR.

1. Evidence, in an action by a miner for injuries from the premature explosion of a blast he was loading, held to warrant submitting to the jury the question whether plaintiff had notice that a powder of higher explosive quality had been substituted for that previously used. 2. The testimony of a miner, injured by the premature explosion of a blast he was loading, that he was exercising care, does not render immaterial, and therefore improper for the jury, the question of notice to him that the powder furnished on this occasion was of a higher explosive power and more dangerous than that ordinarily used.

3. In an action for injuries to a miner from the premature explosion of a blast he was loading. his testimony that he had used powder of the explosive quality ordinarily furnished, and had also previously used, without injury, powder of the higher explosive power possessed by that used on the occasion in question, removes from the domain of conjecture a finding that, had plaintiff known of the more dangerous character of the powder employed, he would have been able by increased care to avoid the accident.

4. Evidence, in an action by a miner for injuries from the premature explosion of a blast he was loading, held to warrant submitting to the jury the question whether, had plaintiff known of the more dangerous character of the powder furnished on this occasion, he would

not, by increased care, have been able to avoid the accident.

5. A miner, employed in blasting with powder of a certain explosive quality, does not assume the risk incident to a substitution, without notice to him, of a powder of a higher explosive power and more dangerous character; he having a right to rely on the master's performance of the duty of notification.

6. In an action by a miner for injuries from the premature explosion of a blast, the court, at plaintiff's request, instructed that if plaintiff had been furnished with powder containing 27 per cent. of nitroglycerin, but on the day of the accident was furnished with powder containing 40 per cent., which was more dangerous, then it was defendants' duty to notify plaintiff, and if they negligently failed to do this, and plaintiff, not knowing of the change and while in the exercise of proper care, was injured from his want of knowledge, he could recover; also that, if defendants' foreman neglected to notify plaintiff, his negligence would be that of the defendants, and that if a higher grade of explosive was furnished plaintiff without notification, and he did not know of its character, he did not assume the risk. defendants' behalf, the court instructed that unless the jury believe defendants changed the grade of powder without plaintiff's knowledge, and that he remained ignorant thereof, and that the substituted powder required a higher degree of care in handling, and that the change substantially increased plaintiff's danger and was the proximate cause of his injuries, and that he was free of contributory negligence, they should find for the defendants. Held, that any error in the instructions requested by plaintiff was cured by that given for defendants.

On

7. The instructions given for plaintiff were not erroneous, as requiring defendants to notify plaintiff, irrespective of his knowledge or opportunity therefor.

8. Neither were they erroneous, as assuming that he was ignorant of the character of the substituted powder, or that he was exercising ordinary care.

9. The instruction that the negligence of the foreman in failing to notify plaintiff was that of the defendants was not erroneous, as authorizing a recovery notwithstanding plaintiff knew of the change, if the foreman failed to notify him thereof.

10. The instruction that plaintiff did not assume the risk, when considered with the instruction given at defendants' request, was not erroneous, as permitting plaintiff to recover if he was guilty of contributory negligence.

11. Where, in an action by a miner for injuries, witnesses on both sides without objection have spoken of and referred to the fact that plaintiff was a married man, the fact that he was permitted to testify that he was a married man does not constitute reversible error. Robinson, C. J., dissenting.

In Banc. Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by Samuel Chambers against V. L. Chester and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The following is the opinion in division:

MARSHALL, J. This is an action for damages for personal injuries sustained by the plaintiff, while in the employ of the defendants, in their mine in Jasper county, known as the "Hawkeye Mine," caused by an explosion of nitroglycerin, which the plaintiff was loading in a hole that had been drilled in a rock wall, preparatory to blasting, and in consequence of which the plaintiff lost his

eyesight. The petition contains three assignments of negligence, two of which the plaintiff offered no evidence to support and the court took them away from the jury, so that the case was tried solely upon the remaining charge which was as follows: "Plaintiff further states that he had, for a long time previous thereto, been in the employ of the defendants, and had been furnished by defendants and had been using giant powder with twenty-seven (27) per cent. only of nitroglycerin; that on the said 20th day of March, 1899, the defendants had carelessly and negligently furnished plaintiff with giant powder containing forty (40) per cent. of nitroglycerin, without notifying or in any wise informing plaintiff and those employed with him in the mine of the change

of powder. Plaintiff states that the powder

containing forty per cent. of nitroglycerin is much more easily exploded and will explode with much less force than powder containing only twenty-seven per cent., and requires a higher degree of care in the handling, lest the same prematurely explode, and powder containing forty per cent. of nitroglycerin is therefore rarely used in the mines; that while plaintiff, not knowing the dangerous character of the explosive furnished by the defendants for the charging of said drill hole, and believing that he was charging the same with giant powder containing only twenty-seven per cent. of nitroglycerin, and exercising due care while using the said iron bar, was with due care pushing the sticks of powder into place in said drill hole with said iron bar, in the manner that he had been accustomed to do while using powder containing only twenty-seven per cent. of nitroglycerin, the said giant powder, owing to its high explosive character as aforesaid, through the negligence and carelessness of defendants in not notifying plaintiff of the high grade of said explosive and of the necessity of greater care in its use, exploded while plaintiff was engaged in loading said drill hole, by which explosion, by means of the powder, and the pieces of gravel and rock which were thrown into plaintiff's face and eyes, plaintiff was seriously injured and wounded, and his eyesight of both eyes totally destroyed." The answer is a general denial, with special pleas of assumption of risk and contributory negligence. There was a verdict for the plaintiff for $5,000, and the defendants appealed.

Three principal errors are assigned: First, refusal of the court to direct a verdict for the defendants at the close of the plaintiff's case; second, admission of incompetent evidence, to wit, that the plaintiff was a married man; and, third, erroneous instructions given for the plaintiff.

The first assignment of error necessitates a full statement of the evidence, and for this purpose the abstract of the evidence for the plaintiff made by counsel for the defendants is adopted. It is as follows:

"Abstract of the Evidence. "Plaintiff testified that he was 44 years of age; (over the objection of defendants) that he was married; that he had been working in mines for the last few years, for the defendants about six months before he was injured, and was earning $2.25 per day; that Mr. Sutton was the ground foreman; that he was engaged in cutting-i. e., drilling, exploding, and shooting, in flint ground-flint and jack; that he had been using 27 per cent. giant powder ever since he had been working there, with the exception of a day or two; on day in question was working under directions of Mr. Sutton, who told him he 'wanted us to load a hole and shoot it before noon.' He did not specify the amount of powder. The hole was five or six feet

deep, in smooth, solid, and flint rock, and 'in

loading our hole we wanted to get in a good shot, and we concluded we would take off part of the wrapper; that is, what we call "skinning it." We tore off the wrapper until we came to the bottom wrapper, and pushed the powder, then, with one thin wrapper on the powder, around it, and put them in the hole, and took the tamping bar, and slid this down to the back. The hole was almost horizontal; and when we got in quite a little powder, and getting the hole pretty well loaded, one stick seemed to hang on the side of the hole. Mr. Pearson, my buddy, unwrapped the powder and tore off the extra paper we did not want to use, and handed me the powder. I was pushing that one stick which seemed to hang, as carefully as I could, when the explosion occurred. Not informed what grade of powder was furnished me. I knew of no change. I supposed we were using 27 per cent. We had been using it ever since I worked for them, with the exception of a day or two. One time, six or seven weeks before this happened, when Geo. Bartholomew was ground boss, they sent down a higher grade of powder two days, but we did not like it, and we went back to the 27 per cent. powder; but after Mr. Sutton came, a week or so, he brought down two or three boxes of a higher grade of powder of the same brand, 40 per cent. as he stated, and he said he wanted us to test it. This was two weeks before I got hurt, and we used it one day, and went back to the low grade powder. The accident happened March 20th; my face was shot into a kind of jelly. It has gotten well, but I have never got so I could see any since. I suffered for three or four months, and do yet. Was in bed five or six weeks.' "Cross-examination: 'Mr. Sutton simply told us to load and shoot the hole. We used our own discretion about the number of sticks we put in, and the way we should load the hole. I used the ordinary tamping rod, or gas pipe with a wooden plug in the end. The hole was about 2 inches at the start and ran back to perhaps 11⁄2 inches. It went back about 4

feet, and then ran back into the pocket. The stick of powder was % inch in diameter. We took all the paper off but the last strip, so it would not fill up the pocket so fast. The powder is easier to break than where it remains on. We did this until we got a number of sticks in, and the last I put in stuck on the side of the smooth hole and broke. The powder is nitroglycerin. It is gummy, so in pushing the sticks in the pocket it left some sticking to the side of the hole. I wanted to clean it off, and in order to get it off I put the end of my bar against it, where I could feel the powder, and pushed. Was just careful where the powder was sticking on the side of the hole. Did it two or three times. I suppose I put the bar against the top or bottom of the hole. Do not know how much pressure I put on; not very much. I simply pushed; did not strike. That necessarily put the outside of the iron of the gas pipe against the gummed powder. Just about that time they called dinner. The explosion occurred about two minutes later. Have always understood high grade powder was easier exploded. You can explode powder with a blow. I remember Mr. Spencer coming to my house after the accident and signing a statement which was read to me. I don't know what was in it. I did not say that we were using 40 per cent. powder, and that it was all right to use.'

"Re-direct: 'I think the force necessary to explode powder containing 27 per cent. glycerin and that containing 40 per cent. would be about three to two.'

40 per

"J. H. Pearson: 'Am a miner. Have had about seven years' experience with giant powder. The higher the grade of powder the easier it is exploded. I was working right by the side of Chambers when he was hurt. B. Sutton was ground boss. Nothing was said to me of any change of powder. Was with Chambers all that morning. Nothing was said to him in my presence. cent. powder was given us. I was cutting the powder, and Chambers was putting it in the hole. I prepared it and handed it to him. He used a gas-pipe tamping bar. We were taking most of the wrapper off the powder, all but just enough to cover the powder, and putting it down in the hole, and pushing it down with the tamping bar. It just went off; that is all I knew. We had miner's lamps fastened in our hats. I never paid any attention to the grade of powder we were using until after the accident, in the afternoon. Found it was 40 per cent. Saw Mr. Sutton. He stated he did not see any difference in the powder.'

"Cross-examination: 'I found out it was 40 per cent. powder by looking at it; by looking at the sticks. It stated 40 per cent. powder, branded on each stick in good size letters; plain, only necessary to look at it in order to understand what it was. The light we had was like all miners use in working in the mines. Just before the accident Mr.

Chambers said something about his hole choking up. I think the powder caught in the hole. He was pushing like he was trying to remove some obstruction. Metal, where you are working it up and down on flint rock, is liable to strike a spark, and the spark is liable to explode the powder. It takes a pretty hard blow to explode powder. They do use as high as 65 per cent. powder in that district. Most of the companies in on the Center Valley and Oronogo use 40 per cent. powder. It is almost impossible to tell what causes powder explosions. Powder is dangerous and uncertain.'

"Alfred Emery: 'Have been mining about eight years. Was working in mine with

Chambers about two months before accident. We had been furnished with 27 per cent. powder. On the morning Chambers was hurt we were furnished with 40 per cent. I discovered this about five minutes before he was hurt. I was loading a hole, and noticed the difference in the grade of powder myself. Had not been informed of it. Mr. Sutton was ground boss. He told me that evening we were using 40 per cent. powder. He did not state where he got it. I just happened to discover it there in the dark.'

"Cross-examination: 'Am brother-in-law of Mr. Chambers. I found out it was 40 per cent. powder by the print on it. Printed 40 per cent. It is not plain letters. A man ain't use to powder, and had some experi ence, ain't apt to notice it. There is a trademark on the 40 per cent. I don't remember what it says.'

"T. N. Brock: 'Had been working in the Hawkeye Mine about six or eight weeks. We had been furnished 27 per cent. powder. On the morning of the accident we were furnished with 40 per cent. Had not been notified by anybody of the change in the powder. B. Sutton was ground boss. Late that evening, after taking Chambers home, he said he should have notified the men of the change of powder, but had forgotten it. He seemed to feel very sorry about it. 40 per cent. powder will explode easier than 27 per cent.'

"Jos. Higenbotham: 'Was at work 50 or 60 feet from Chambers at the time of the accident. I went to work some time in January. This accident happened in March. We had been using 27 per cent. powder, I think, previous to the accident.'

"Cross-examination: 'Do not know when they commenced using 40 per cent. powder. I found out this was 40 per cent. powder by looking at the powder. I believe the grade was on the stick; if not, it was on the box. Sometimes it is on the box; sometimes on the stick. 40 per cent. takes less of a blow to explode it than 27 per cent. From what I have seen the grade used around there runs from 27 to 40 per cent. I have seen 65 per cent. used.'

"George Bartholomew: 'Was ground boss in the mine in December, January, and part of February previous to the accident to

Chambers. We used a low grade of powder, anything below 40 per cent., excepting five boxes. Chambers was working there then. A short time before I quit we used five boxes of Columbian powder, then changed back to the low grade powder. The Columbian powder was an experiment. The higher the grade of powder the more dangerous it is.'

"Mrs. Belle Emery describes condition of Chambers after accident; plaintiff's sisterin-law.

"Fred. Richardson: Examined as an expert. Nothing developed.

"Richard Johnson: Working near Chambers. We used two or three different kinds of powder before the accident. We used Etna, 27 per cent., and Columbian. I don't think any directions or notice was given when we changed to Columbia: When the change to 40 per cent. was made there had been notice given to that effect a few days before the accident. I could not say as to whether it was given on the day of the accident. I had been used to handling 40 per cent. powder. Used it all my life. All the mining I ever did, almost, was with 40 per cent. powder. I don't know that I handled it any carefuller than 27 per cent. powder. I think they went back to a low grade powder before the accident.'

"Cross-examination: "There was a notice, five or six days before the accident, of the change from 27 per cent. to 40 per cent, We used this higher grade four or five days before the accident. 40 per cent. powder is generally used. It is considered a generally safe powder. We used the same method in handling one as the other. Have to be careful with all. All are dangerous and apt to explode. If I was using 75 per cent. powder, which I have used, I would be careful. 40 per cent. is considered a perfectly safe grade. I have handled it with as much safety as 27 per cent. I think the first time we made the change to 40 per cent. we all knew about it. That was five or six days before. We were all notified. We used 40 per cent. on down to the time of the accident. I don't know whether the percentage is branded on it or not. We noticed an animal on one, and did not see it on the other. I remember several of us were looking at the brands on the label, and couldn't distinguish which was 40 per cent. I don't remember the brand on the Etna; only this high grade.'

"Dr. D. V. Wale, examined as to plaintiff's condition, testifies eyesight destroyed.

"Enoch Purcell (expert): 'Giant powder containing 40 per cent. nitroglycerin is more sensitive to force than that containing 27 per cent.; a difference of one-third to one-half. I have seen this powder burn. Have picked up stick that was blazing, and threw it over the dump. It is force that explodes powder. It is the jar.'

"Cross-examination: 'Chambers and I married cousins. The powder I burned and

threw was 50 per cent.; American forcite powder. Never had any experience with powder and fire, where powder was confined."

Inasmuch as other questions in the case necessitate a reference to the whole case, the abstract of the evidence for the defendants, made by defendants' counsel, is also adopted, which is as follows:

"Defendants' Testimony.

"V. L. Chester: 'One of defendants. I saw Chambers after the accident; something like two weeks after the accident. I was inquiring of him how he accounted for the accident, and he says: "Well, Doc; that is something I can't account for." He says: "It was dinner time, and I guess I must have got in a little too big a hurry and punched the powder too hard. That is the only way I can account for it." Afterwards, about ten days or two weeks, I saw him again, and he referred to the matter again, and said the same thing. He said there wasn't anybody to blame about the matter only himself.'

"Dr. Olive: 'One of defendants. Saw Chambers at his house next morning, right after the accident. I stepped up and shook hands with him. He was in bed, and I told him I felt sorry for him, and asked him how the accident occurred. He said that it occurred through his own carelessness. He said that he had loaded a hole, and put in 55 sticks of powder, and was putting in the last stick. He said that it was just at noon, and he got in a little too big a hurry, he thought, and in shoving the stick in the hole he said that he thought there was a little piece of rock got down between the hole and the stick. He also said that he had stripped the powder, and he thought that rock grating on the bare powder caused the explosion. He said he would never strip another stick of powder as long as he lived. I never said anything to him about a change of powder. I never knew anything about that; have nothing to do with the practical operation of the mine.'

"Cross-examination: 'Never told Chambers anything about change of powder. Had a talk with Bartholomew about Columbian powder. He said he considered it dangerous. I wanted to reduce the amount of the powder bill. I did not know anything about the grade. We dropped the Columbian powder because we considered it dangerous.'

"J. E. Bell: 'One of defendants. Was superintendent of the mine at time in question. I bought the powder. We last commenced to use 40 per cent. powder on the 13th of March. I have the invoice here the day the powder was bought. This was No. 2, 40 per cent. We used this from March 13th down, and no other. I had a talk with Chambers about a week after the accident at his house. He said it was one of those accidents that happen; wasn't any one to