Philips, P. J.
I. The principal contention of defendant, raised at this bar, is, that the relation of master and servant did not exist between defendant and plaintiff, and, therefore, the doctrine of respondeat superior does not apply. It is urged that McOombe was an independent contractor, under the mining company ; that he hired, paid and controlled the men employed in the shaft, without any control or supervision on the part of defendant over this matter.
The conclusion drawn from this premise would follow but for another important fact in the record. The imputed negligence of defendant consists in two independent facts : the negligence of defendant in providing an unsafe cage for lowering into and raising from the coal shaft the men employed in digging the coal, and second, the incompetency and negligence of the person in charge of the engine at the time of the accident. . As [223]*223to the first ground, there is scarcely any room to question the fact that had the cage been provided with the necessary spring catch the injury to plaintiff would not have occurred. Notwithstanding the competency or incompetency, the negligence or care of the engineer in lowering the cage, had it been provided with the spring ■catch the rapid descent of the car would have been arrested so as to have saved plaintiff from his misfortune. That this catch was absent at the time of the injury there is no dispute. The only practical question, therefore, for determination is, was it the duty of the defendant to have provided this safeguard %
By section six, of the act approved March 23, 1881 {Laws Mo., p. 167), the owner, agent or operator of every ■coal mine is required, under penalty, to provide such cage with such spring catch. Appellant, however, insists that both by the provisions of said act and the special contract between it and McCombe this duty was devolved upon McCombe. Section three of said act declares that: “■The term ‘owner’ used in this act shall, mean the immediate proprietor, lessee or occupant of any coal mine, ■or any part thereof, and the term ‘ agent ’ shall mean any person having, on behalf of the owner, the care or management of any coal mine, or any part thereof.”
The evident object of this provision, in carrying out the humane and protective object of the act, was to extend the ordinary meaning of the term “owner” so as-to make it, for the purpose in view, apply to'a party ■situated as was McCombe to this transaction, so far as the public was concerned. But it ought not, on well settled principle, to be so construed as to acquit the actual ■owner of the mine, who has engaged another to open his mine, reserving to himself the obligation and burden of furnishing and operating that part of the machinery which occasions the injury to the employe. This duty he owes to the public, and when he undertakes to so furnish and operate the machinery, which he knows will be .used for a. specific purpose in performing his part of the [224]*224contract with the contractor in opening and'operating his mine, the law, in the absence of any such statutory requirement, would impose upon him the duty of providing reasonably safe machinery and appliances, and as to that the relation- of master and servant existed between him and the plaintiff employed in mining in this shaft.
Waiving any question' as to whether the plaintiff was bound by the unrecorded and undisclosed provisions of the private contract between defendant and McOombe, and also whether the contract admits of the construction, as contended for by defendant, that defendant was not to furnish the cage and operate it, it is sufficient to say, both from the evidence and the instructions asked by defendant, and given by the court, the case was tried throughout on the assumption that the cage was furnished by defendant and run by its engineer. This, no-doubt, was the actual fact, and, therefore, no question was made of its existence at the trial. It is now the well settled rule of practice in the supreme court of this state that the party complaining must stand or fall by the theory on which he tried the case in the court below. Davis v. Brown, 67 Mo. 313; Noble v. Blount, 77 Mo. 241; Walker v. Owens, 79 Mo. 568; Holmes v. Braidwood, 82 Mo. 610-17.
As already stated, the defendant having reserved to, or taken upon, itself the duty of furnishing the cage and engineer to operate • it, it was not only the owner of the mine to that extent, but the law affixes to it the relation of master toward the employe who, in the usual course of his employment, had to use such machinery. There is, in such case, no repugnance between the relation of the owner of the mine and the contractor that the relation of master and servant cannot exist between the former and the employe of the contractor. As to that part of the machinery, which the owner of the property-is to furnish, the doctrine of respondeat superior must necessarily exist for the proper protection of the em[225]*225ploye. Detroit v. Corey, 9 Mich. 165; Sadler v. Henlock, 4 El. & Bl. 570; Hefferman v. Benkard, 1 Robt. 436 ; Griffiths v. Walfram, 22 Minn. 185.
“The relation of master and servant does not cease so long as the master reserves any control, or right of control, over the method and manner of doing the work, or the agencies by which it is to be effected.” Speed v. Ry. Co., 71 Mo. 308; Thompson on Negligence, p. 907, sect. 29.
In Mulchy v. Relief Society (6 Rep. 751), it is held that where a proprietor who engages with a contractor to paint his building, the proprietor to furnish the staging for such purpqse, he must furnish a safe staging therefor; and if, such staging break, injuring an employe, the proprietor must answer therefor, although the staging was built by an independent contractor.
The evidence in this case shows that defendant, through its superintendent, had its attention called to the absence of the spring catch. It does not appear at any time to have disclaimed its proprietorship- of this machinery. Not until after the plaintiff had been injured through its disregard of this notice, and a jury had awarded the plaintiff damages therefor, and not until the case stood here on appeal, did it seem to occur to counsel that possibly defendant might escape responsibility by appealing to the language of the special contract between it and McCombe.
II. We shall not discuss the other branch of the imputed negligence as to the incompetency and negligence of the fireman left in charge by defendants engineer. The verdict is amply sustained by the uncontradicted evidence on the other branch of the case. Where the verdict is for the right party, and could not have been otherwise, except through a disregard of the evidence by the jury, the verdict will not be disturbed, although there may have been error committed at the [226]*226trial touching some other matter not essential to a recovery.
III. It is also urged that plaintiff was guilty of -contributory negligence. The ground for this contention is that plaintiff knew, at the time of the inj ury, of the ¡absence of the spring catch. This rests upon the statement of plaintiff in his testimony that: ‘ ‘ There was no •catches on the cage ; had been before, but were taken off ; •do not know how long had been off, but some time.”
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Philips, P. J.
I. The principal contention of defendant, raised at this bar, is, that the relation of master and servant did not exist between defendant and plaintiff, and, therefore, the doctrine of respondeat superior does not apply. It is urged that McOombe was an independent contractor, under the mining company ; that he hired, paid and controlled the men employed in the shaft, without any control or supervision on the part of defendant over this matter.
The conclusion drawn from this premise would follow but for another important fact in the record. The imputed negligence of defendant consists in two independent facts : the negligence of defendant in providing an unsafe cage for lowering into and raising from the coal shaft the men employed in digging the coal, and second, the incompetency and negligence of the person in charge of the engine at the time of the accident. . As [223]*223to the first ground, there is scarcely any room to question the fact that had the cage been provided with the necessary spring catch the injury to plaintiff would not have occurred. Notwithstanding the competency or incompetency, the negligence or care of the engineer in lowering the cage, had it been provided with the spring ■catch the rapid descent of the car would have been arrested so as to have saved plaintiff from his misfortune. That this catch was absent at the time of the injury there is no dispute. The only practical question, therefore, for determination is, was it the duty of the defendant to have provided this safeguard %
By section six, of the act approved March 23, 1881 {Laws Mo., p. 167), the owner, agent or operator of every ■coal mine is required, under penalty, to provide such cage with such spring catch. Appellant, however, insists that both by the provisions of said act and the special contract between it and McCombe this duty was devolved upon McCombe. Section three of said act declares that: “■The term ‘owner’ used in this act shall, mean the immediate proprietor, lessee or occupant of any coal mine, ■or any part thereof, and the term ‘ agent ’ shall mean any person having, on behalf of the owner, the care or management of any coal mine, or any part thereof.”
The evident object of this provision, in carrying out the humane and protective object of the act, was to extend the ordinary meaning of the term “owner” so as-to make it, for the purpose in view, apply to'a party ■situated as was McCombe to this transaction, so far as the public was concerned. But it ought not, on well settled principle, to be so construed as to acquit the actual ■owner of the mine, who has engaged another to open his mine, reserving to himself the obligation and burden of furnishing and operating that part of the machinery which occasions the injury to the employe. This duty he owes to the public, and when he undertakes to so furnish and operate the machinery, which he knows will be .used for a. specific purpose in performing his part of the [224]*224contract with the contractor in opening and'operating his mine, the law, in the absence of any such statutory requirement, would impose upon him the duty of providing reasonably safe machinery and appliances, and as to that the relation- of master and servant existed between him and the plaintiff employed in mining in this shaft.
Waiving any question' as to whether the plaintiff was bound by the unrecorded and undisclosed provisions of the private contract between defendant and McOombe, and also whether the contract admits of the construction, as contended for by defendant, that defendant was not to furnish the cage and operate it, it is sufficient to say, both from the evidence and the instructions asked by defendant, and given by the court, the case was tried throughout on the assumption that the cage was furnished by defendant and run by its engineer. This, no-doubt, was the actual fact, and, therefore, no question was made of its existence at the trial. It is now the well settled rule of practice in the supreme court of this state that the party complaining must stand or fall by the theory on which he tried the case in the court below. Davis v. Brown, 67 Mo. 313; Noble v. Blount, 77 Mo. 241; Walker v. Owens, 79 Mo. 568; Holmes v. Braidwood, 82 Mo. 610-17.
As already stated, the defendant having reserved to, or taken upon, itself the duty of furnishing the cage and engineer to operate • it, it was not only the owner of the mine to that extent, but the law affixes to it the relation of master toward the employe who, in the usual course of his employment, had to use such machinery. There is, in such case, no repugnance between the relation of the owner of the mine and the contractor that the relation of master and servant cannot exist between the former and the employe of the contractor. As to that part of the machinery, which the owner of the property-is to furnish, the doctrine of respondeat superior must necessarily exist for the proper protection of the em[225]*225ploye. Detroit v. Corey, 9 Mich. 165; Sadler v. Henlock, 4 El. & Bl. 570; Hefferman v. Benkard, 1 Robt. 436 ; Griffiths v. Walfram, 22 Minn. 185.
“The relation of master and servant does not cease so long as the master reserves any control, or right of control, over the method and manner of doing the work, or the agencies by which it is to be effected.” Speed v. Ry. Co., 71 Mo. 308; Thompson on Negligence, p. 907, sect. 29.
In Mulchy v. Relief Society (6 Rep. 751), it is held that where a proprietor who engages with a contractor to paint his building, the proprietor to furnish the staging for such purpqse, he must furnish a safe staging therefor; and if, such staging break, injuring an employe, the proprietor must answer therefor, although the staging was built by an independent contractor.
The evidence in this case shows that defendant, through its superintendent, had its attention called to the absence of the spring catch. It does not appear at any time to have disclaimed its proprietorship- of this machinery. Not until after the plaintiff had been injured through its disregard of this notice, and a jury had awarded the plaintiff damages therefor, and not until the case stood here on appeal, did it seem to occur to counsel that possibly defendant might escape responsibility by appealing to the language of the special contract between it and McCombe.
II. We shall not discuss the other branch of the imputed negligence as to the incompetency and negligence of the fireman left in charge by defendants engineer. The verdict is amply sustained by the uncontradicted evidence on the other branch of the case. Where the verdict is for the right party, and could not have been otherwise, except through a disregard of the evidence by the jury, the verdict will not be disturbed, although there may have been error committed at the [226]*226trial touching some other matter not essential to a recovery.
III. It is also urged that plaintiff was guilty of -contributory negligence. The ground for this contention is that plaintiff knew, at the time of the inj ury, of the ¡absence of the spring catch. This rests upon the statement of plaintiff in his testimony that: ‘ ‘ There was no •catches on the cage ; had been before, but were taken off ; •do not know how long had been off, but some time.”
It would be sufficient to say that no such defence of contributory negligence was raised by the answer, nor was any such question presented to the jury by any instruction asked by defendant. On the contrary, the instructions given by the court expressly required the jury to find that plaintiff was withoutfault contributing to his injury. By their verdict the jury negatived the existence of such contributory negligence.
Whether or not the language of the witness implied that he knew of the absence of the catches prior to, or ■whether he was stating a fact which came to his knowledge after the accident, or whether, if he knew the catches were absent, he had sufficient knowledge of their importance to reasonably believe it dangerous for him to start down in the cage without such safeguard, were all questions of fact for the jury. The defendant does not seem to have attached any importance to this matter, as it raised no such question by its instuctions. The jury having passed on the matter, under the instructions given by the court, we cannot disturb their finding.
IY. It is finally objected by defendant that the court erred in'instructing the jury, that the physical and mental suffering and pain of plaintiff consequent upon the injury were elements to enter into the estimation of damages. The objection is lodged against the word “mental” employed in the instruction. We had occasion to consider this question in Randolph v. Railroad (18 Mo. App. 609), and in Cook v. Railroad (19 Mo. App. 329). Adhering to the ruling in those cases we must [227]*227overrule the objection. In the action of tort for personal injuries to an adult, mental suffering is so allied to and ■consequent upon physical pain that it seems to me to be quite impossible to separate them in practice. So fixed is this union in the mind that an instruction which should direct a jury, in estimating the damages, to disassociate mental from physical pain and agony would be the very acme of carrying the most abstruse metaphysics of the schoolman into the practical deliberations of the jury room.
Such an instruction, as the one under consideration, was given in the case of Loewer v. Oity of Sedalia, without challenge by the supreme court, although the learned counsel for appellant pressed every conceivable meritorious point as ground for reversal.
The other judges concurring, the judgment of-the circuit court is affirmed.