"First. `Ordinary care' is that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances.
"Second. `Negligence,' as the term is used in this charge, is the failure of a person to exercise ordinary care.
"Third. You are instructed that if an occupation, where from the nature and character of the work in the line of the employment, and the attendant circumstances necessary in the performance of same, there are hazards and dangers incident to the occupation itself, and of which the master knew, or by the exercise of ordinary care would have known the same, it is the duty of the employer to inform an inexperienced employé as to the danger of said employment and the extent of same, and failure to so inform him in this respect is negligence.
"Fourth. You are instructed, however, that if at the time of employment an employé knew of the dangers and the extent thereof incident to an occupation and employment in which he is employed, or if while in the service he acquired such knowledge, or in the ordinary discharge of his own duties he must necessarily have acquired such knowledge as to the danger and extent of same, incident to such work, the employé assumes the risk and danger of such work, and the employer is not liable, although not warned or instructed by the employer as to the nature and extent of such danger.
"Fifth. You are instructed in this case, bearing in mind the definitions enumerated in the first, second, third, and fourth paragraphs of this charge, that, if you find and believe by a preponderance of the evidence that with reference to the line of work and character of employment in which plaintiff was engaged in the caisson that was being constructed, there was incident to such work and such employment a danger and hazard
resultant from such work known as the `caisson disease,' and that plaintiff contracted the same while in the performance of this work, as a result thereof; and if you further find and believe that the plaintiff, at the time he engaged in said caisson work, was an inexperienced person as to the nature and character of the work and of the hazard, if any existed, of the contracting of such disease as an incident thereto; and if you further believe that the employer, the Missouri Valley Bridge & Iron Company, knew, or by the exercise of ordinary care should have known, of the extent and danger of such disease as incident to such work; and you further find and believe that the plaintiff at the time he engaged for such work and began the performance of same, he was not warned and instructed by defendant bridge and iron company as to the extent and danger of such disease as incident to such work, if the same was incident thereto, and further find and believe that the failure, if any, to warn and instruct plaintiff was negligence, and that he contracted such disease as a result of such negligence—your verdict will be for the plaintiff on this issue, unless you find for the defendant upon this issue upon other instructions.
"Sixth. You are instructed that the burden of proof is upon the plaintiff to prove this issue by a preponderance of the evidence, and if he fails to discharge such burden as to all, or any, of the elements charged to you in the next preceding paragraph, your verdict will be for the defendant; or if you find that he was warned as to the hazard and the extent thereof, with reference to the disease as incident to the employment, if it was incident thereto, or that the defendant was not negligent; or if you find that the injury, if any, did not result from such negligence, if any occurred—in either event you will find for defendant on the issue charged.
"Seventh. You are instructed, in connection with the fifth paragraph, that if you find and believe from the evidence that when the plaintiff began the performance of the caisson work he informed Bradshaw, the night superintendent of shifts, that he was `a pressure man,' and if you further find and believe that the said Bradshaw accepted such statement, if you believe it was made, that he was acquainted with the duties that he was to perform and the hazard and extent of same as to caisson disease being an incident of such caisson work, and that a man of ordinary care would not have warned the plaintiff as to such hazard, if any, under the circumstances, you will find against plaintiff upon such issue.
"Eighth. Bearing in mind the fourth paragraph of this charge, you are instructed that if at the time plaintiff began the caisson work he knew of the caisson disease, and that it was a hazard incident to the work he was to perform, or if before he was stricken with the caisson disease, if you believe he contracted the same, he acquired the knowledge from an outside source that such a disease was a hazard incident thereto, or if you believe that in the ordinary discharge of his duties he necessarily acquired the knowledge that such disease was a hazard incident to such employment, you are instructed that plaintiff assumed the risk, and, although you find that defendant was negligent as to warning plaintiff, on such issue defendant is not liable.
"Ninth. Again, you are instructed that when a person enters the employment of another he has the right to rely upon the assumption that the employer has exercised ordinary care in providing reasonably safe means and methods in carrying on his work within the line of his employment, and the employé is not required to exercise ordinary care in seeing whether the employer has failed in this respect; and you are again instructed that a failure to exercise ordinary care to provide such reasonably safe means for the protection of the employé is negligence for which he is liable if injury resulted thereby, unless the employé knew at the time he entered the employment, or if afterwards in the ordinary discharge of his duties he must necessarily have acquired the knowledge, that such means and methods were not reasonably safe, in which either event the employé assumed the risk, and the employer would be relieved of such negligence although an injury resulted thereby.
"Tenth. Hence, you are instructed in this case, bearing in mind the first and second, as well as the ninth, paragraphs, of this charge, that if you find the defendant the Missouri Valley Bridge & Iron Company, in providing the means and methods in the performance of the caisson work, owed the duty to provide a sand hoghouse as an avoidance of a hazard known as `caisson disease' (if you believe it was incident to the work), you are then instructed that said defendant should exercise ordinary care to provide a sand hoghouse, as termed in the evidence, as a reasonably safe means and method for the performance of said work, and as a protection to its employés in the performance of said work as an avoidance of said hazard, if any existed; and if you further believe that the proper construction of same, relative to the place where the caisson work was being performed, should be at a place as proximately and conveniently as the same can be situated to carry on the caisson work as a means reasonably safe for the protection of the employés in carrying on such work; and if you further find and believe from the evidence that the sand hoghouse of the defendant bridge company was in such a position and at such a distance relative to such work as not to provide reasonably safe means and methods, in carrying on the caisson work in which plaintiff was engaged, as a protection to the hazard and danger, if any existed, as to said caisson disease, and said defendant
was negligent in such respect, and the plaintiff in consequence thereof contracted such disease—you will find for plaintiff upon such issue, unless you find for defendant upon instructions given you.
"Eleventh. You are instructed the burden is upon plaintiff to prove, by a preponderance of the evidence, that the defendant owed the duty, and was negligent as to the position of said sand hoghouse, and that his injuries resulted thereby, and if you find plaintiff failed to discharge the burden as to all or any of the elements necessary to his recovery as charged to you in the next preceding paragraph, in either event you will find for the defendant on this issue; or if you find affirmatively that the defendant did exercise ordinary care in the construction of said sand hoghouse relative to the place where the caisson work was being performed by plaintiff, your verdict will be for defendant on this issue.
"Twelfth. However, in connection with the tenth paragraph of this charge, if you find and believe from the evidence that the plaintiff knew at the time he was engaged to perform the caisson work, or if afterwards and before his alleged injury he knew, or if in the ordinary discharge of his caisson work he necessarily acquired the knowledge, that the relative position of such...
