Stroud v. Doe Run Lead Co., 272 S.W. 1080. (4) The master owes to his servant the non-delegable duty of furnishing him a reasonably safe place in which to work, and the servant does not assume risks that are caused by the master's negligence. Lampe v. Am. Ry. Exp. Co., 266 S.W. 1011; Adair v. Terminal Railroad Co., 282 Mo. 133; Sneed v. Hardware Co., 242 S.W. 699; Hunter v. Busy Bee Candy Co., 271 S.W. (Mo. Sup.) 800. (5) The master is liable for a negligent order. Cissel v. Sherin, 268 S.W. 668. (6) The risk of unsafe implements and place to work is not assumed by the servant.
In these cases no liability attached to the employer though he or his vice principal had ordered the plaintiff to do the work and given him assurance of safety. See Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800; Lutgen v. Railway (Mo.App.) 294 S.W. 444, 445; Leitner v. Grieb, 104 Mo. App. 173, 77 S.W. 764; Haviland v. K.C., etc., Ry. Co., 172 Mo. 106, 72 S.W. 515; Petrilli v. Swift Co., 216 Mo. App. 626, 260 S.W. 516, 518. In the other class fall those cases where the injuries complained of resulted from the failure of the employer to furnish sufficient help, which result he should have anticipated; or the injuries were caused by some unforeseen but proximate cause coupled with the negligent failure to furnish sufficient help.
Blankenship v. St. Joseph Fuel Oil Mfg. Co., 232 S.W.2d 954 l.c. 959-60, (Mo.); O'Donnell v. Baltimore and O.R. Co., 26 S.W.2d 929 l.c. 933, 324 Mo. 1097; Frandeka v. St. Louis Public Service Co. 234 S.W.2d 540 l.c. 546 (Mo.); Branscum v. Glaser, 234 S.W.2d 626 l.c. 627 (Mo.); Cox v. Bondurant, 7 SW (2) 403 l.c. 406, 220 Mo. App. 948. IV (2) Since the respondent could have safely started the tractor from the left side or the rear, he was guilty of contributory negligence in starting the tractor from the right side, which he knew or should have known was a dangerous position. Hunter v. Busy Bee Candy Co., 271 S.W. 800, l.c. 805, 307 Mo. 656; Moore v. Kansas City, Ft. S. M. Ry. Co., 48 S.W. 487, 146 Mo. 572 l.c. 582; Hurst v. Kansas City, P. G. Ry. Co. 63 S.W. 695, 163 Mo. 309, l.c. 322. V (7) The court erred in refusing to permit the appellant to testify that the respondent would not have been in any danger in getting on the seat and starting the tractor nor from starting the tractor from any position except the right side.
It is the general rule that a servant is the best judge of his own physical strength and in the absence of coercion compelling him to overtax that strength, it is his duty not to overtax it. Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 946, 10 A.L.R. 1396; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800. In this state, just as at common law, the servant still assumes all of the usual and ordinary dangers and hazards attendant upon and incident to his employment.
(c) Because the falling of the electric light pole with respondent was a danger incident to his work and employment, and was a risk which the respondent assumed as an employee of appellant. Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 43; Watson v. Marble White Lime Co., 290 S.W. 651; Probst v. Heisinger Motor Co., 16 S.W.2d 1005; Roberts v. Mo. Kan. Tel. Co., 166 Mo. 370; Hunter v. Busy Bee Candy Co., 271 S.W. 800; Clark v. Wheelock, 293 S.W. 455. (2) The court committed prejudicial error in admitting over appellant's objection evidence of a duodenal ulcer, and permitting respondent to withdraw from the consideration of the jury and striking out such testimony did not cure such error. It could be stricken from the record but not from the minds of the jury.
Cooper Neel, Carl S. Hoffman and Whitson G. Rogers for respondent. The court correctly sustained the demurrer to the evidence, since the injury to plaintiff was not the natural and probable consequence of and did not impose any legal liability on defendant because of its alleged negligent act or acts. Washburn v. Gas Light Co., 202 Mo. App. 102; Benton v. St. Louis, 248 Mo. 98; State ex rel. v. Ellison, 271 Mo. 463; Hunter v. Busy Bee Candy Co., 307 Mo. 671; American Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 623; Wilt v. Coughlin, 176 Mo. App. 275; Chandler v. Gas Co., 174 Mo. 321; Zasemowich v. Mfg. Co., 213 S.W. 799; Christy v. Hughes, 24 Mo. App. 275; Teis v. Mining Co., 158 F. 260; DeMoss v. Rys. Co., 296 Mo. 526; Wilson v. M., K. T. Railroad Co., 129 Mo. App. 658; Foley v. McMahon, 114 Mo. App. 442; Keele v. Ry. Co., 258 Mo. 62; St. L. S.F. Ry. Co. v. Ferrell, 105 S.W. (Ark.) 263; Donald v. Coal Co., 103 S.E. (W. Va.) 55. LINDSAY, C.
As also pointed out by plaintiff, all of the ties were put there by defendant to be used; and the evidence did not show that the men were expected to choose the ties to be used or had the right to refuse to load any of the ties defendant had furnished for use on its main line track. Defendant also says it is not liable for any injury resulting from plaintiff's choice of an improper and hazardous method of performing a task when a safe method was equally available, citing Wadiak v. Illinois Central R. Co., 7 Cir., 208 F.2d 925; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800; Lloyd v. Norfolk W. R. Co., 151 Va. 409, 145 S.E. 372; Norfolk P. Belt Line R. Co. v. White, 143 Va. 875, 129 S.E. 339; Louisville N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358. However, the rule of these cases is not involved and they are not in point in this situation because plaintiff and Smeithers were using the method intended, and which the foreman directed, namely, picking up the ties, carrying them to the motorcar and placing them on its handles.
In Missouri our cases hold that in such circumstances the employer is not to be held liable for injuries due to overexertion. Under such circumstances, the employee is the judge of this own strength, and not being under any necessity to exert himself beyond it, he cannot recover damages for injuries arising merely through lifting or overexertion. McCormick v. W. L. Hutchison Electric Co., 326 Mo. 380, 31 S.W.2d 971; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800; Haviland v. Kansas City, P. G. R. Co., 172 Mo. 106, 72 S.W. 515; Lutgen v. Missouri Pac. R. Co., Mo.App., 294 S.W. 444; Duvall v. Brooklyn Cooperage Co., Mo.App., 275 S.W. 586; 56 C.J.S. Master and Servant ยง 390, at The judgment should be affirmed, and it is so ordered.
. Johnson, 349 Mo. 267, 160 S.W.2d 701; Mosely v. Sum, 344 Mo. 969, 130 S.W.2d 465; Williams v. St. Joseph Artesian Ice Cold Storage Co., 214 S.W. 385; George v. St. Louis Mfg. Co., 159 Mo. 333, 59 S.W. 1097; Doerr v. St. L. Brewing Assn., 176 Mo. 547, 75 S.W. 600; Smith v. Forrester-Nace Box Co., 193 Mo. 715, 92 S.W. 394; Rogers v. Tegarden Packing Co., 185 Mo. App. 99, 170 S.W. 675; Johnson v. Natl. Newspapers' Assn., 183 S.W. 1113; Bathe v. Moorehouse Stave Mfg. Co., 199 Mo. App. 127, 201 S.W. 925; Finuta v. American Mfg. Co., 174 Mo. App. 87, 156 S.W. 718. (33) Other safe methods of steadying the turret were available and plaintiff was negligent in adopting the more dangerous course of placing his hand under the ring gear and above the top of the jig in the immediate path of the descending turret hooked to what he considered to be a dangerous hoisting device. 3 Labatt. secs. 1245, 1249, pp. 3400, 3432; 39 C.J., pp. 850, 860, 868; Penny v. Southeastern Express Co., 35 S.W.2d 940; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800. (34) Effect of plaintiff's supervisory capacity: 3 Labatt, sec. 1260, p. 3498; 39 C.J. 593; Evans v. Atl. Pac. R. Co., 62 Mo. 49; Adair v. K.C. Terminal R. Co., 282 Mo. 133, 220 S.W. 920; Gorham v. K.C. S.R. Co., 113 Mo. 408, 20 S.W. 1060; Roblin v. K.C., St. J. C.B.R. Co., 119 Mo. 476, 24 S.W. 1011. (35) Effect of plaintiff's knowledge of the danger, equal or superior to that of either Wurtz or defendant: 4 Labatt, secs 1327, 1328, pp. 3785, 3789; 39 C.J. 838. (36) Effect of simple tool doctrine: 3 Labatt, sec. 924(a). p. 2476; Fischer v. City of Cape Girardeau, 345 Mo. 122, 131 S.W.2d 521. (37) The court erred in refusing to give instructions I and J requested by the defendant and submitting plaintiff's contributory negligence in failing to instruct Wurtz and under the simple tool doctrine.
(b) Where the injury may have resulted from one of two or more causes, for one of which, but not the other, defendant would be liable, plaintiff must show, with reasonable certainty, that the cause for which defendant is liable produced the result; that showing was not made in this case. Luettecke v. St. Louis, 140 S.W.2d 51; Warner v. St. Louis M. Ry. Co., 178 Mo. 134; State ex rel. Trading Post Co. v. Shain, 342 Mo. 593, 116 S.W.2d 102; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 317; Hayes v. Kresge Co., 100 S.W.2d 329; Cain v. Talge Lounge Co., 222 Mo. 508. (c) Plaintiff assumed the risk as a matter of law. Arnold v. Scandrett, 131 S.W.2d 542; Jones v. St. L.-S.F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 483; York v. St. L.-S.F. Ry. Co., 333 Mo. 105, 62 S.W.2d 475; McCormick v. Hutchison E. Co., 326 Mo. 380, 31 S.W.2d 971; Hunter v. Busy Bee Candy Co., 307 Mo. 668, 271 S.W. 803; O'Dell v. St. L.-S.F. Ry. Co., 281 S.W. 456; Frederick v. Erie Co., 36 F.2d 718; Chesapeake O. Railroad Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157; Toledo, St. L. W. Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Southern P. Railroad Co. v. Bershire, 254 U.S. 415, 65 L.Ed. 335; McAdoo v. Auzellott, 271 F. 268. (2) Where two or more acts of negligence are submitted in the disjunctive, the evidence must be sufficient to support both. If it fails to support either, the instruction is fatally erroneous.