6. Schumacher v. Breweries Co. If the : Master and Servant: Assumption of Duty. master was under no obligation to furnish a watchman to warn his servants of danger, the mere fact that he voluntarily assumed that duty would not of itself render him liable for injury due to the negligent performance by the watchman of the work imposed upon him. 7. : Pleading: Two Acts: One Omitted from Instruction: Variance. Where the petition charged that the master was negligent in failing to exercise ordinary care in throwing timbers from a window into a passageway through which his servants customarily passed to and from their work, and in not warning plaintiff that a timber was about to be thrown out as he passed the window, an instruction embracing the first charge, but containing no words requiring the jury to find as a fact that it was the duty of the master to furnish a watchman to warn him, but instead thereof permits a verdict for plaintiff if the jury find that the master customarily furnished a watchman and thereby misled and lulled him into a feeling of security, and his watchman, though present, failed to warn him, is erroneous; and while the general charge of negligence that the timbers were negligently thrown from the window would be sufficient to support a judgment after verdict, even under such an instruction, if there was substantial evidence to support it, yet where there is no evidence that the timbers were negligently thrown out, and the material negligence was the failure of the watchman to warn him that the timber was about to be thrown out, a verdict based on an instruction which does not require the jury to find that it was the master's duty to furnish a watchman, cannot stand. The instruction so broadens the issues as to constitute a variance. Appeal from Jackson Circuit Court.-Hon. J. H. Slover, Judge. AFFIRMED. Block & Block, A. F. Smith, Boyle & Howell, and Guthrie, Gamble & Street for appellant. (1) It is the duty of the master to maintain the place where employees may properly resort in connection with their employment, in a reasonably safe condition. This is a positive duty of the master which cannot be delegated so as to relieve the master. Other servants performing this duty are not fellow-servants. Schumacher v. Breweries Co. Railroad v. Wise, 106 Ill. App. 174, 206 Ill. 453; 26 Cyc. 1087; King v. Railroad, 143 Mo. App. 289; Bailey v. Dry Goods Co., 149 Mo. App. 656; Strobel v. Mfg. Co., 148 Mo. App. 22; Van Verth v. Candy Co., 155 Mo. App. 304; Koerner v. Car Co., 209 Mo. 157; Stone Co. v. Mooney, 60 N. J. L. 323; Hjelm v. Granite Co., 94 Minn. 173; Railroad v. Holcomb, 9 Ind. App. 198; Sroufe v. Moran, 28 Wash. 381; D'Agostino v. Railroad, 72 N. J. L. 358. (2) The men specially engaged in reconstruction work, something not a part of the ordinary work of the brewery, under a separate foreman employing and controlling them, were in a different department of employment among the numerous distinct departments in different buildings in this particular one of several plants of the master, and not within the fellow-servant rule. Koerner v. Car Co., 209 Mo. 153; Tabor v. Railroad, 210 Mo. 397; McMurray v. Railroad, 225 Mo. 305; Music v. Dold, 58 Mo. App. 334; Shore v. Brewing Co., 111 Mo. App. 288; Haas v. Railroad, 111 Mo. App. 709; Tabler v. Railroad, 93 Mo. 79; Sullivan v. Railroad, 97 Mo. 119; Parker v. Railroad, 109 Mo. 362; Dixon v. Railroad, 109 Mo. 413; Relyea v. Railroad, 112 Mo. 93; Schlereth v. Railroad, 115 Mo. 87; Swadley v. Railroad, 118 Mo. 268; Church v. Railroad, 119 Mo. 203; Kelly v. Railroad, 141 Mo. App. 449; Jones v. Railroad, 178 Mo. 275; Lanning v. Railroad, 196 Mo. 661. (3) In every case in which different men might reasonably differ as to what care would be exercised by an ordinarily prudent man under all the circumstances, the question of contributory negligence is solely for the jury. (4) Where a system of signals giving warning of intermittent dangers is being employed, and such system is known to the party charged with contributory negligence, he cannot be said, as a matter of law, to be guilty of contributory negligence for failure to keep watch against the specific danger. It is for the jury to say, under all the circumstances, how far an ordinarily prudent Schumacher v. Breweries Co. man would rely upon the giving of the customary warning. Beach on Contributory Negligence (2 Ed.), sec. 190; Cooley on Torts, p. 802; Shearman & Redfield on Negligence (5 Ed.), sec. 466, note 8; Wilkins v. Railroad, 101 Mo. 105; Gurley v. Railroad, 104 Mo. 211; Kenney v. Railroad, 105. Mo. 286; Crumpley v. Railroad, 111 Mo. 158; Francis v. Railroad, 127 Mo. 658; Hutchinson v. Railroad, 161 Mo. 254; Riska v. Depot Co., 180 Mo. 191; Montgomery v. Railroad, 181 Mo. 500; Sites v. Knott, 197 Mo. 717; Johnson v. Railroad, 203 Mo. 400; Strauchon v. Railroad, 232 Mo. 600; Burbridge v. Cable Co., 36 Mo. App. 670; Cox v. Granite Co., 39 Mo. App. 424; O'Keefe v. Railroad, 108 Mo. App. 184; Rissler v. Transit Co., 113 Mo. App. 124; Peterson v. Transit Co., 114 Mo. App. 378; Railroad v. Amos, 54 Ark. 164; Dolph v. Railroad, 74 Conn. 539; Ranford v. Railroad, 126 Ga. 452; Railroad v. Hutchinson, 120 Ill. 587; Railroad v. Blaul, 175 Ill. 183; Railroad v. Yundt, 78 Ind. 373; Railroad v. Stegemeier, 108 Ind. 309; Railroad v. Brandt, 172 Ind. 647; Buchanan v. Railroad, 75 Iowa, 393; Railroad v. Holland, 60 Kan. 213; Sights v. Railroad, 117 Ky. 442; Railroad v. Ruoff, 141 Ky. 623; Cooper v. Railroad, 81 Me. 267; Railroad v. Stumpf, 97 Md. 78; Bailey v. Railroad, 125 Mass. 62; Merrigan v. Railroad, 154 Mass. 189; Lang v. Terry, 163 Mass. 138; Luke v. Mining Co., 71 Mich. 364; Engle v. Smith, 82 Mich. 1; Tobias v. Railroad, 110 Mich. 440; Anderson v. Mill Co., 42 Minn. 424; Stegner v. Railroad, 94 Minn. 167; Hoelgin v. Railroad, 143 N. C. 96; Harmer v. Apartment Co., 68 N. J. L. 332; D'Agostino v. Railroad, 72 N. J. L. 358; Glushing v. Receiver, 96 N. Y. 678; Palmer v. Railroad, 112 N. Y. 234; Wallace v. Railroad, 138 N. Y. 306; Railroad v. Schneider, 45 Ohio St. 678; Roberts v. Railroad, 177 Pa. St. 183; Wilson v. Railroad, 18 R. I. 193; Railroad v. Ray, 25 Tex. Civ. App. 247 Mo.-10 Schumacher v. Breweries Co. 367; Kimball v. Friend, 95 Va. 138; Jones v. Mill Co., 65 Wis. 315. Cowherd, Ingraham, Durham & Morse for respondent. (1) The trial court was right in holding that plaintiff was guilty of such contributory negligence as to bar a recovery. (a) Plaintiff's attention was not engrossed in any work at the time of the accident. Therefore, it was his duty to use his sight, hearing and forethought for his own protection. This he admits he did not do. Wheat v. St. Louis, 179 Mo. 572; Montgomery v. Railroad, 189 Mo. 508; McNamara v. Railroad, 126 Mo. App. 152; Evans v. Railroad, 178 Mo. 517; Holland v. Railroad, 18 Fed. 243; Mayliani v. Railroad Co., 108 Minn. 48; Woodson v. Railroad. 224 Mo. 685; Clancy v. Railroad, 192 Mo. 655; Schmeizer v. Furniture Co., 134 Mo. App. 493; Glover v. Bolt & Nut Co., 153 Mo. 327; Blockschmidt v. Railroad, 205 Mo. 435; Newton v. Railroad, 152 Mo. App. 167; Sissel v. Railroad, 214 Mo. 515; Degonia v. Railroad, 224 Mo. 364; Nivert v. Railroad, 232 Md. 644; Cahill v. Railroad, 205 Mo. 393. (b) Plaintiff had no right to rely blindly upon a watchman to warn and not look for a danger which he knew existed. Absence of any warning does not absolve plaintiff from the exercise of care. Mockowick v. Railroad, 196 Mo. 550; Threlkeld v. Wabash, 68 Mo. App. 127; Schaub v. Railroad, 133 Mo. App. 446; Van Dyke v. Railroad, 230 Mo. 259; Davis v. Railroad, 159 Mo. 1; Kelly v. Railroad, 88 Mo. 534; Kleiber v. Railroad, 107 Mo. 261; 3 Elliott on Railroads, p. 1754, sec. 1157. (c) The danger was obvious to plaintiff, had he looked. It is not negligence, therefore, for defendant not to warn. Smith v. Box Co., 193 Mo. 715; Nugent v. Milling Co., 131 Mo. 241; Hirsch v. Bread Co., 150 Mo. App. 162; Pohlmane v. Car Co., 123 Mo. App. 219; Stigman v. Ger Schumacher v. Breweries Co. ber, 146 Mo. App. 101. (d) Plaintiff could have gone to his work through three other entrances without any danger to himself. It was his duty to do this. Cohn v. Kansas City, 108 Mo. 703; Woodson v. Railroad, 224 Mo. 701. (2) Plaintiff's injuries were due to the acts of his fellow-servant, and, therefore, he cannot recover. Ryan v. McCully, 123 Mo. 635; McCarty v. Hotel Co., 144 Mo. 397; Oher v. Construction Co., 158 Mo. App. 213; Sheehan v. Prosser, 55 Mo. App. 569; Jackson v. Mining Co., 106 Mo. App. 441; Card v. Eddy, 129 Mo. 510; Schmeizer v. Furniture Co., 134 Mo. App. 493; Livengood v. Mining Co., 179 Mo. 229. (3) The motion for new trial was properly sustained because of error in plaintiff's instruction 1. Said instruction does not conform to the cause of action pleaded. Hufft v. Railroad, 222 Mo. 302; Degonia v. Railroad, 224 Mo. 590; Black v. Railroad, 217 Mo. 672. The instruction as a matter of law assumes that a failure to warn plaintiff was negligence. It was for the jury to say whether under the circumstances it was the duty of defendant to warn and whether a watchman was necessary. Welsch v. Railroad, 72 Mo. 451; Becke v. Railroad, 102 Mo. 551; Railroad v. Ins. Co., 144 U. S. 421. It assumes as a matter of law that a warning by a watchman was necessary and that any other method would be insufficient-such as the danger sign or the cry of the men throwing the timber. WOODSON, J.-The plaintiff instituted this suit in the circuit court of Jackson county, against the defendant, to recover twenty-five thousand dollars damages for personal injuries received February 14, 1908, through the alleged negligence of the defendant. The petition was in the usual form; and the answer consisted of a general denial and a plea of contributory negligence, assumption of risk, and that whatever injuries the plaintiff sustained were the re |