GRAVES, J.
By certiorari it is sought to quash the judgment of the Springfield Court of Appeals in the case of Huskey v. Heine Safety Boiler Co. The case has been twice in the Court of Appeals, once upon the appeal of the plaintiff and once upon the appeal of defendants. The first time (187 Mo. App. 438, 173 S. W. 16) the court, in reversing and remanding the cause, from a $3,000 judgment for plaintiff, among other things said:
"The evidence does disclose that defendant's superintendent had ordered the foreman (just a few moments before plaintiff was directed to go to the opening) to erect a platform from the outside of the stack, so the men could stand thereon when joining the pipes to the stack and attaching the angle bars, which plaintiff says were to be hauled up by the bolt he was sent to put in, and that some of the employés were directed to procure the boards for that purpose. We are of the opinion that a ground for liability might be established if it appeared that the foreman, knowing that a platform would soon be erected, unnecessarily sent the plaintiff to place the bolt in the hole when he might as well have waited only a short time and by waiting
would not have subjected plaintiff to unnecessary hazardous risk. Strother v. Kansas City Milling Co. 169 S. W. loc. cit. 47. The judgment will therefore be reversed, and the cause remanded."
Before trial the petition was so amended as to follow the suggestion of the court. Upon retrial the circuit court sustained a demurrer to the evidence, and from this judgment the second appeal was taken. 181 S. W. 1041. The Court of Appeals again reversed and remanded the cause, and it is this opinion and judgment we are asked to quash. The second opinion refers to the first for a fuller statement of facts. The first opinion, by this reference, in so far as the facts are concerned, is a part of the opinion now being challenged under our writ of certiorari. Going to the first opinion, in addition to the fact of an alleged negligent order, as above quoted from that opinion, supra, we find the following statement of facts:
"The evidence discloses that plaintiff was in the employ of the defendant, engaged in the construction of a metal smokestack, and had been working on this job for several weeks. The stack had been completed as to height, which was about 150 feet. There remained to be done the joining onto the stack of the pipes which led from the boilers, and to this end there had been left an opening in the stack, the bottom of which was about 16 feet from the ground. The stack was metal, about one-fourth of an inch in thickness. The opening left in the stack, from which plaintiff slipped and fell, was a segment of the stack 8 feet in height and 6 feet in width, running around; that is, the opening took up about one-third of the circumference. Around the edge of the opening were holes left to rivet or fasten the pipes onto the stack. During the time the stack was being constructed a circular platform had been used, which rested on lugs that were fastened to the inside of the stack. A row of such lugs were left in the stack, and these rows were some 4 feet apart; that is, as the stack went up the platform would be raised from time to time until it reached the top, when it was removed and let down to the ground on the outside of the stack, on a block and tackle, which was fastened on the south side of the stack, and by ropes let down to the ground. The circular platform was on the ground, and plaintiff knew this when he went to put the bolt in the hole. He testified, and we must accept it as true, that the foreman ordered him to go up to this opening and place a bolt in one of the holes around the edge on which was to be rigged up a block and tackle with which would be drawn up some angle bars that were to be used when they were ready to fasten the pipes to the stack. He obeyed this order, and went up to the opening by means of the block and tackle which hung to the ground from the top of the stack on the south side. He was aided in pulling himself up by one of the workmen on the ground, who was ordered by the foreman to help plaintiff. When he had ascended to a point about 16 feet from the ground, he swung himself around to the north side of the stack, where he left his seat on the rope and stood either on the iron edge of the opening or on the top of the boiler room roof, which extended to within a foot of the stack. While there, the foreman threw him a bolt to be used. Plaintiff then placed one foot on the iron edge of the stack (one-fourth of an inch in thickness), which was the bottom on the opening, and placed his other foot about 2 feet higher up on the inside of the stack, resting it on one of the iron lugs which had been used to rest the platform on while the stack was being erected. Standing in this position, he attempted to reach 8 feet to the top of the opening and place the bolt in a hole, when his foot slipped, and he fell to the ground, injuring one of his legs.
"The evidence is not at all certain that the circular platform could have been used at that place as a support for plaintiff to stand upon in placing the bolt in the hole, because the lugs on which it must have rested were not on a level with the bottom of the opening in the stack. The one on which he placed his foot was in a row some 2 feet above the bottom of the opening, and the next row below was several feet lower than the bottom of the opening from which plaintiff could not possibly have reached the hole he was to place the bolt in. In this connection, plaintiff does not say that the foreman particularized which one of the holes was to be used. The evidence leaves it doubtful whether the row on which he placed his foot could have been used, because at least one-third of the circumference of the stack at that place was left open, leaving no support whatever under the platform for one-third of its circumference, and this too at the very place the weight of one standing thereon would have been. The evidence and the physical facts show that the platform, owing to its diameter, could not have been placed through the arc of the stack without reducing its size to such an extent that it would not, when so reduced, have rested on the lugs. Again, owing to the necessary size, shape, and weight of this platform, it would probably be attended with more danger to the men putting it up than attended the simple insertion of a bolt from the same place without the aid of any platform. Plaintiff's special charge of negligence must therefore fail because his testimony in connection with the physical facts fails to show with sufficient certainty that it was possible for defendant to have used the circular platform at all."
In the opinion before us it is said:
"When the cause was here before we reversed the judgment, because the case had been tried on the theory that it was the duty of the defendant to furnish a platform on which the plaintiff could have stood in simply putting a bolt in a hole some 16 feet above the ground in the side of a metal smokestack, as it appeared from the evidence at that trial that it was but a temporary employment, done in the course of the construction of the stack, that the safe place rule did not apply, and that the facts brought that trial within one of the exceptions to such rule. It did appear, however, in the former record before us, that there was evidence tending to show that the defendant had ordered a platform to be built at this particular place for the purpose of furnishing a place for workmen to stand while fastening the angle bars and hood leading from the boiler room onto this smokestack, and that this platform would have been completed within a short time, and that it was not necessary that the isolated task of putting the bolt in the hole at the time the plaintiff was ordered to do so should have been performed at the time the plaintiff was ordered to do it; and upon this evidence we reversed the judgment and remanded the cause to be tried (as will be seen by the last paragraph in our opinion), on the theory that if the defendant sent the plaintiff unnecessarily into a dangerous and hazardous place when by waiting a very short time a platform would have been erected which would have made the employment of putting the bolt in the hole practically without danger, then it would be a question for the jury to determine whether a reasonably prudent and careful master would, under the circumstances, have ordered the plaintiff to do what he did do at the time he did it.
"In the trial from which this appeal resulted the fact is brought out by plaintiff's evidence that, when the defendant's foreman ordered him
to place this bolt in the hole, the plaintiff did not know that a platform would soon be erected in the opening on which he could stand and do this task, but that the foreman knew that the platform would be built, and knew that within 15 or 20 minutes such platform would be constructed. The testimony of the plaintiff does not tend to show that the bolt was placed in this hole for the purpose of constructing the platform, but was merely put there on which to fasten a block and tackle with which the angle bars would be drawn up. The evidence further discloses that that very afternoon the platform was completed, and that the hole in which ...
