(a) Since the danger of the plunger being shot out was inherent and attendant upon the ordinary use of the gun, failure to adopt a readily obtainable guard of proven practicability sufficiently supports the finding that the appliance was not reasonably safe. Kuhn v. Lusk, 219 S.W. 638; Curtis v. McNair, 173 Mo. 270; Littig v. Urbauer Atwood Heating Co., 237 S.W. 779; Philbin v. Columbia P.S.R. Co., 56 Wn. 610. (b) There was substantial evidence of general usage in guarding the gun. The conflict in the evidence upon this point made a question for the jury.

Wrench v. Robertson, 175 S.W. 590. (4) The petition alleges both statutory and common-law negligence, and both are utilizable under the common-law branch of the case, under which respondent is liable regardless of whether decedent was within the statute. Lenz v. Seibert, 259 S.W. 829; Adams v. Thayer, 6 S.W.2d 630; Kuhn v. Lusk, 219 S.W. 638. (5) Even if decedent were concededly an independent contractor, respondent would still be under the legal duty of exercising ordinary care to prevent injury to him and the cause would be submissible to a jury. Donovan v. Gay, 11 S.W. 44; Flori v. Dolph, 192 S.W. 949. (6) Decedent was on the premises at the request of and upon the business of respondent, and regardless of classification, or if he should merely be referred to as an invitee, still respondent owed him the duty of using ordinary care to prevent injury to him, and the case would be submissible to a jury.

(3) Whether or not plaintiff was contributorily negligent in operating a machine, the gears to which were obviously unguarded was a question for the jury. Tomlinson v. Marshall, 208 Mo. App. 381, 236 S.W. 680; Lilley v. Eberhardt, 37 S.W.2d 599; Roddy v. Mo. Pac. Ry. Co., 104 Mo. 234, 15 S.W. 1112; Kuhn v. Lusk, 281 Mo. 324, 219 S.W. 638; Rose v. Mo. Dist. Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562. [956] BOHLING, C.

And it is for the jury to decide as to whether the master has exercised ordinary care. Kuhn v. Lusk, 219 S.W. 638; Williams v. Pryor, 272 Mo. 613; Brooks v. DeSoto Oil Co., 57 So. 228, 100 Miss. 849; Dettering v. Levy, 79 A. 476; Westman v. Lbr. Co., 91 P. 478; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284. The question of the master's negligence in respect to covering or guarding machinery in general, and such as we have in this case, is generally a question for the jury.

Defendant was not liable on the independent contractor theory because that theory was not set up in the petition (and for other reasons), and was not liable on the agency theory because of the rent transaction. Therefore the court should have directed a verdict for defendant. State ex rel. v. Shelton, 249 Mo. 660; Crews v. Wilson (Mo.), 281 S.W. 44; Green v. Mo. Pacific, 192 Mo. 132; Rutledge v. Ry., 110 Mo. 312; O'Dell v. Lead Co (Mo. App.), 253 S.W. 397; Hinkle v. Lovelace, 204 Mo. 208; Kuhn v, Lusk, 281 Mo. 324, 219 S.W. 638. (5) Notice of cancellation for nonpayment of premium was given, effective March 16, 1921, and was received by plaintiffs. Thereafter plaintiffs made no protest against the cancellation and no claim of payment of premium but by their conduct waived their rights, if any, abandoned the policy and acquiesced in and consented to the cancellation until after the fire.

And it is for the jury to decide as to whether the master has exercised ordinary care. Kuhn v. Lusk, 219 S.W. 638; Williams v. Pryor, 272 Mo. 613; Brooks v. De Soto Oil Co., 57 So. 228, 100 Miss. 849; Dettering v. Levy, 79 A. 476; Westman v. Lumber Company, 91 P. 478; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498. Where the testimony is conflicting as to whether the employer had furnished the servant a safe place to work, the question should be submitted to the jury.

Cassin v. Lusk, 277 Mo. 63, 210 S.W. 902; Willis v. Quarries Co., 218 Mo. App. 698, 268 S.W. 102; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; Huhn v. Mo. Pac. Ry. Co., 92 Mo. 440. (b) The law, indeed, goes much farther; in some cases the liability of the matter is predicated on the sole fact that he failed to adopt a readily obtainable and practicable appliance which would have eliminated the hazard. Knott v. Boiler Sheet Iron Works, 299 Mo. 613, 253 S.W. 749; Kuhn v. Lusk, 281 Mo. 324, 219 S.W. 638; Smith v. Fordyce, 190 Mo. 24. (c) But in this case, evidence that the Mason tread was practicable, readily installable and in general use, was offered only in connection with all of the other evidence concerning the stairway; and under the instructions, which made no reference to the Mason tread or any other particular kind of tread, the jury was required to find that the stairway, as it stood, was not reasonably safe. (3) Instruction 1 is not subject to the objections urged.

gence of the latter in failing to perform that duty. Koerner v. Car Co., 209 Mo. 141; Bender v. Kroger Co., 310 Mo. 498; Johnson v. Corn Products Co., 6 S.W.2d 570; Johnson v. Brick Co., 276 Mo. 51; Enloe v. Car Co., 240 Mo. 451; Bequette v. Plate Glass Co., 200 Mo. App. 506; Moore v. Railroad, 85 Mo. 593. (d) The work in which plaintiff was engaged was obviously one attended by danger, since plaintiff was required to work in a narrow, confined space in a car in which two of these dangerous reamers were in operation, and in which plaintiff's pneumatic hammer and another like hammer were in operation, making so much noise that one would not hear the approach of a reaming machine; and, because of such danger attending the work, it became the duty of the defendant company to see that special precautions were taken to guard against injuries to its employees engaged therein. Authorities under point (b). Also see: Knott v. Boiler Works, 299 Mo. 613; Stewart v. Laclede Gas Co., 241 S.W. 909; Kuhn v. Lusk, 281 Mo. 324; Henderson v. Stove Co., 197 S.W. 177; Jones v. Wood Works Co., 215 Mo. App. 142; Porter v. Railroad, 219 Mo. App. 29. (e) And could the negligence which resulted in plaintiff's injury be regarded as purely the negligence of a fellow servant (which respondent emphatically denies), the evidence amply sufficed to cast liability upon defendant company for negligently retaining in its employ a negligent and incompetent servant, after knowledge of such negligence and incompetency. Williams v. Ry. Co., 109 Mo. 475; Munoz v. Am. Car Co., 296 S.W. 228; Houston v. Am. Car Co., 282 S.W. 170; Grube v. Mo. Pac. Ry. Co., 98 Mo. 330; Brown v. Lumber Co., 202 Mo. App. 573; Burns v. Mfg. Co., 213 Mo. App. 640. (f) In passing upon the propriety of the action of the trial court in refusing these peremptory instructions the court will accept as true all evidence tending to sustain plaintiff's cause of action, no matter by whom offered, and accord plaintiff the benefit of every inference favorable to hi

McIntyre v. Railroad, 286 Mo. 256; Horton v. Railroad, 233 U.S. 504; Boldt v. Railroad, 245 U.S. 444; Labatt's Master Servant, chap. 50; Horton v. Railway, 233 U.S. 504; Kidd v. Ry. Co., 274 S.W. 1080. (4) Respondent's instruction number two is proper and not erroneous. (a) Appellant cannot predicate error upon this instruction because the jury were not required to declare the legal effect of facts proved. Huhn v. Railway, 92 Mo. 440; Kuhn v. Lusk, 281 Mo. 324; Jones v. Railway, 178 Mo. 528. (b) There is in this instruction no assumption of any material fact upon which appellant can here predicate error. Hall v. Coal Co., 260 Mo. 351, 169 S.W. 927; Orris v. Railway, 279 Mo. 16. (5) The amount of the verdict is reasonable and just. Gill v. Railway Co., 302 Mo. 317; Crecelius v. Ry. Co., 284 Mo. 26; Kidd v. Ry. Co., 274 S.W. 1079.

The Court of Appeals was compelled to follow and did follow them, and the opinion is not in conflict with any controlling decision of this court. Knott v. Iron Wks., 299 Mo. 613; Kuhn v. Lusk, 281 Mo. 324; Kennedy v. Gas Light Co., 215 Mo. 688; Thompson v. Railroad, 270 Mo. 87; Trebbe v. American Steel Fdys., 185 S.W. 179; Hamilton v. Mining Co., 108 Mo. 364; Huhn v. Railroad, 92 Mo. 440; Hite v. Ry. Co., 225 S.W. 916; Dietzman v. Screw Co., 300 Mo. 196. (4) The Court of Appeals, in holding that the instruction, after requiring proper and sufficient facts to direct a verdict, merely required plaintiff to assume an unnecessary burden when it referred to the facts claimed to constitute an erroneous comparison, followed the latest and controlling decision of this court on that point, to-wit, Wolfe v. Payne, 294 Mo. 170, 186. (See, also, Hunt v. Railroad, 303 Mo. 107, 128.) The only later case en banc cited by relator is Sommer v. Cement Co., 295 Mo. 519, which is not a controlling decision for the reasons stated above.