BIEGELMEIER, Judge.
Plaintiff sues for injuries received as a volunteer actor or super in the Passion Play produced by defendant. The facts and some of the issues involved in this appeal generally appear in the dissenting opinion except for some details of the evidence which will be added in the course of the opinion. Defendant seasonably moved for a directed verdict in much detail on the grounds plaintiff failed to establish as a matter of law that defendant was negligent in failing to provide a safe area [12]*12or erect a fence, or that failure thereof was the proximate cause of plaintiff's injuries; that plaintiff assumed the risk thereof; that her injuries were caused by the negligence of fellow servants and her own contributory negligence. This motion and one for judgment n. o. v., made after a jury verdict for plaintiff, were denied. Plaintiff's appeal assigns and the brief argues that such denials were erroneous.
It being undisputed plaintiff was a gratuitous employee, she is excluded from the provisions of the Workmen's Compensation Law, Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558, and neither party is subject to any of its provisions. The defenses of contributory negligence, assumption of risk and the fellow servant rule are available to defendant. Schmeling v. Jorgensen, supra; Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; 35 Am.Jur., Master and Servant, § 334.
There seems to be some uncertainty and confusion of the negligence charged in this action. The complaint claimed only "the proximate cause of Plaintiff's injury was Defendant's negligence in failing to provide a safe area for said pageant and failing to guard said area with suitable fence or guardrail."1 Plaintiff's injuries occurred in the crucifixion scene as she and other participants were screaming, yelling and running down the path, so the topography and physical aspects of the area will be described in that sequence. Plaintiff testified she was standing on a grassy area on the lower plateau in front of the higher crucifixion plateau during that scene. This grassy area appears to be smooth and level at the top and over ten feet wide; it proceeds down along the edge of the hill on what is referred to in the testimony as a "path", however, it appears to be at least eight feet wide with the usual cut bank on the left side and a 45° slope of the hill on the right side; it then makes roughly a U-turn to the right with a large open space on the outside of the turn to accommodate the participants and permit Roman guards on horses to [13]*13leave the procession as they go up the hill. The surface changes to gravel at this U-turn and proceeds down below and along side the described grassy area, path and slope mentioned. The distance from the lower plateau to the U-turn is not clear — it appears to be a five-foot decline over a distance of 20 or 30 feet. Plaintiff further testified on cue she moved about 15 or 20 steps over the grassy plateau area to go down toward the U-turn and was near the side of this grassy area above the slope of rocks and undergrowth when the two boys ran into her. She fell down this slope along the path seven or eight feet to a place on the inside edge of the U-turn. By moving to the edge of the path she had thereby also put herself on the edge of the slope.
On the one side of this path the hill was the built-in wall; the outside was not then, nor had it ever been, guarded by a fence or railing. On the construction and condition of the plateau, plaintiff's brief admits it
"was apparent to anyone observing the area and it was equally observable to the Plaintiff. As to this fact there was no superior knowledge thereof on the part of either Plaintiff or the Defendant. That, however, is not the issue."2
The evidence compels that conclusion as to plaintiff's knowledge there was no fence or railing for she testified:
"Q * * * you * * * participated in the Golgotha Hill scene knowing there was no railing * * *
"A Oh, I'd never seen it. * * * I had no reason to believe that it was (a dangerous situation)."
[14]*14Defendant also testified "it was not" a dangerous spot. By plaintiff's own admissions she had taken part in over 250 performances for some 24 to 25 years and knew there was no railing along the path. Plaintiff is bound by her own statements and cannot make a stronger case than her own testimony establishes. Ford v. Robinson, 76 S.D. 547, 80 N.W.2d 471.
It is the duty of the master to furnish his servant with a reasonably safe place to work. We have so held. Stoner v. Eggers, supra, also Schmeling v. Jorgensen, 77 S.D. 8, 16, 84 N.W.2d 558, 563, and Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, which uses the phrase "a reasonably safe place"; Olson v. Kem Temple, A.A.O.M.S., 77 N.D. 365, 43 N.W.2d 385; and 35 Am.Jur., Master and Servant, §§ 138 and 183. Other courts are in accord, 35 Am.Jur., Master and Servant, § 183.3 That has been held to be the basis of recovery for a paid domestic employee, Gordon v. Clotsworthy, 127 Colo. 377, 257 P.2d 410, 49 A.L.R.2d 314, and others. See also the annotation in 49 A.L.R.2d 320, footnote 6.
A master cannot be held liable for failure to furnish a reasonably safe place to work if the condition or so-called danger is so obvious and is before the servant's eyes to such an extent that he must know by the use of ordinary intelligence the possible danger that confronts him. Stoner v. Eggers, supra, and Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605. Our holding is the lack of guardrail was a condition that existed, was not the proximate cause of plaintiff's injuries, and that by voluntarily continuing to take part in the pageant she accepted or assumed the risk of injury from the lack of guardrail. In this sense assumption of risk bars recovery because there was no break of the master's duty, no actionable fault on the part of the master, and, hence, no cause of action. Maher v. Wagner, 62 S.D. 227, 252 N.W. 647.
[15]*15Restatement,, Second, Agency, seems to be in accord with these conclusions.
"§ 492. General Rule
"A master who has performed his duties of care is either to provide working conditions which are reasonably safe for his servants and subservants, considering the nature of the employment, or to warn them of risks of unsafe conditions which he should realize they may not discover by the exercise of due care."
"§ 499. Risks Inherent in Enterprise
"A master who has preformed his duties of care is not liable to a servant harmed by a risk incident to the nature of the work."
"§ 521. Servant's Assumption of Risk
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BIEGELMEIER, Judge.
Plaintiff sues for injuries received as a volunteer actor or super in the Passion Play produced by defendant. The facts and some of the issues involved in this appeal generally appear in the dissenting opinion except for some details of the evidence which will be added in the course of the opinion. Defendant seasonably moved for a directed verdict in much detail on the grounds plaintiff failed to establish as a matter of law that defendant was negligent in failing to provide a safe area [12]*12or erect a fence, or that failure thereof was the proximate cause of plaintiff's injuries; that plaintiff assumed the risk thereof; that her injuries were caused by the negligence of fellow servants and her own contributory negligence. This motion and one for judgment n. o. v., made after a jury verdict for plaintiff, were denied. Plaintiff's appeal assigns and the brief argues that such denials were erroneous.
It being undisputed plaintiff was a gratuitous employee, she is excluded from the provisions of the Workmen's Compensation Law, Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558, and neither party is subject to any of its provisions. The defenses of contributory negligence, assumption of risk and the fellow servant rule are available to defendant. Schmeling v. Jorgensen, supra; Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; 35 Am.Jur., Master and Servant, § 334.
There seems to be some uncertainty and confusion of the negligence charged in this action. The complaint claimed only "the proximate cause of Plaintiff's injury was Defendant's negligence in failing to provide a safe area for said pageant and failing to guard said area with suitable fence or guardrail."1 Plaintiff's injuries occurred in the crucifixion scene as she and other participants were screaming, yelling and running down the path, so the topography and physical aspects of the area will be described in that sequence. Plaintiff testified she was standing on a grassy area on the lower plateau in front of the higher crucifixion plateau during that scene. This grassy area appears to be smooth and level at the top and over ten feet wide; it proceeds down along the edge of the hill on what is referred to in the testimony as a "path", however, it appears to be at least eight feet wide with the usual cut bank on the left side and a 45° slope of the hill on the right side; it then makes roughly a U-turn to the right with a large open space on the outside of the turn to accommodate the participants and permit Roman guards on horses to [13]*13leave the procession as they go up the hill. The surface changes to gravel at this U-turn and proceeds down below and along side the described grassy area, path and slope mentioned. The distance from the lower plateau to the U-turn is not clear — it appears to be a five-foot decline over a distance of 20 or 30 feet. Plaintiff further testified on cue she moved about 15 or 20 steps over the grassy plateau area to go down toward the U-turn and was near the side of this grassy area above the slope of rocks and undergrowth when the two boys ran into her. She fell down this slope along the path seven or eight feet to a place on the inside edge of the U-turn. By moving to the edge of the path she had thereby also put herself on the edge of the slope.
On the one side of this path the hill was the built-in wall; the outside was not then, nor had it ever been, guarded by a fence or railing. On the construction and condition of the plateau, plaintiff's brief admits it
"was apparent to anyone observing the area and it was equally observable to the Plaintiff. As to this fact there was no superior knowledge thereof on the part of either Plaintiff or the Defendant. That, however, is not the issue."2
The evidence compels that conclusion as to plaintiff's knowledge there was no fence or railing for she testified:
"Q * * * you * * * participated in the Golgotha Hill scene knowing there was no railing * * *
"A Oh, I'd never seen it. * * * I had no reason to believe that it was (a dangerous situation)."
[14]*14Defendant also testified "it was not" a dangerous spot. By plaintiff's own admissions she had taken part in over 250 performances for some 24 to 25 years and knew there was no railing along the path. Plaintiff is bound by her own statements and cannot make a stronger case than her own testimony establishes. Ford v. Robinson, 76 S.D. 547, 80 N.W.2d 471.
It is the duty of the master to furnish his servant with a reasonably safe place to work. We have so held. Stoner v. Eggers, supra, also Schmeling v. Jorgensen, 77 S.D. 8, 16, 84 N.W.2d 558, 563, and Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, which uses the phrase "a reasonably safe place"; Olson v. Kem Temple, A.A.O.M.S., 77 N.D. 365, 43 N.W.2d 385; and 35 Am.Jur., Master and Servant, §§ 138 and 183. Other courts are in accord, 35 Am.Jur., Master and Servant, § 183.3 That has been held to be the basis of recovery for a paid domestic employee, Gordon v. Clotsworthy, 127 Colo. 377, 257 P.2d 410, 49 A.L.R.2d 314, and others. See also the annotation in 49 A.L.R.2d 320, footnote 6.
A master cannot be held liable for failure to furnish a reasonably safe place to work if the condition or so-called danger is so obvious and is before the servant's eyes to such an extent that he must know by the use of ordinary intelligence the possible danger that confronts him. Stoner v. Eggers, supra, and Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605. Our holding is the lack of guardrail was a condition that existed, was not the proximate cause of plaintiff's injuries, and that by voluntarily continuing to take part in the pageant she accepted or assumed the risk of injury from the lack of guardrail. In this sense assumption of risk bars recovery because there was no break of the master's duty, no actionable fault on the part of the master, and, hence, no cause of action. Maher v. Wagner, 62 S.D. 227, 252 N.W. 647.
[15]*15Restatement,, Second, Agency, seems to be in accord with these conclusions.
"§ 492. General Rule
"A master who has performed his duties of care is either to provide working conditions which are reasonably safe for his servants and subservants, considering the nature of the employment, or to warn them of risks of unsafe conditions which he should realize they may not discover by the exercise of due care."
"§ 499. Risks Inherent in Enterprise
"A master who has preformed his duties of care is not liable to a servant harmed by a risk incident to the nature of the work."
"§ 521. Servant's Assumption of Risk
"In the absence of a statute or an agreement to the contrary, a master is not liable to a servant for harm caused by the unsafe state of the premises or other conditions of the employment, if the servant, with knowledge of the facts and understanding of the risks, voluntarily enters or continues in the employment."
Comments under this section not only clarify it, but place the burden of proof on plaintiff:
"Comment:
"a. * * * Although a master has neither used care to make the premises safe nor care to warn his employees that they are not safe, and although he has no reason to believe that the employees know of the lack of 'safety, he is not liable to employees who in fact know of the conditions and realize the danger therefrom (unless by sections 522-524 not here applicable)
[16]*16"c. * * * The risk * * * may exist at the beginning of the employment or it may arise subsequently because of changed conditions.
"d. Burden of proof. In maintaining an action against a master for failing to provide conditions of safety, a servant harmed thereby must allege and prove, not only that the master had reason to believe that the conditions were unsafe, but also that the servant had no knowledge thereof. * * *"
Plaintiff voluntarily chose to continue in this part of the play4 and we agree with the statement in her brief that the construction and condition of the plateau, including the lack of guardrailing, was not an issue upon which to base a conclusion defendant was negligent in that respect.
Eliminating the lack of guardrail as negligence, and therefore the proximate cause of plaintiff's injuries, leaves only that she was knocked down by the two boys. This was the immediate cause of her injuries and thus the proximate cause. Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564. It is undisputed they all were members of the cast engaged in the same common employment and so fellow servants. The common law defense that the injuries were caused by the negligence of a fellow servant or employee being available to defendant, such negligence gives rise to no cause of action against the employer by an employee so injured. 35 Am.Jur., Master and Servant, § 334. The fellow servant doctrine is stated in that text to be:
"There is, perhaps, in the law of master and servant, no more firmly established common rule than the [17]*17one which absolves the employer from liability to one engaged in his employment for injuries incurred or suffered solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee."
Restatement, Second, Agency, announces the rule in § 474 as:
"A master is not liable to a servant * * * who * * * is injured solely by the negligence of a fellow servant * * *"
subject to some exceptions not applicable — one being liability of a master for non-delegable duties. These non-delegable duties are explained in later sections in 35 Am.Jur., Master and Servant, and under Title C on page 435 of the cited Restatement. The latter indicates the master incurs liability if he does not use care to keep the servants' working conditions reasonably safe, or if those he employs for such purpose, do not use such care to keep the working conditions reasonably safe. However, having furnished a safe place to work, suitable tools or appliances, etc., the employer is not liable for negligent performance of operative details or the transitory negligent act of an employee in the use of a proper tool. See 35 Am.Jur., Master and Servant, §§ 335, 358, 359 and 360. A similar statement appears in Comment a, § 492 of the cited Restatement which states the effect of the two sections (§ 474, fellow servant rule and § 492, general rule) is that an employer is "not liable to a servant for the negligence of fellow servants in the operative details of the business". A similar section in the Restatement relieves the employer of liability:
"§ 500. Transitory Dangers
"The master's liability for unsafe working conditions does not extend to temporary dangerous conditions of which the conduct of fellow servants in the performance of operative details of the work is the sole responsible cause."
[18]*18Again under § 492, Comment f, is found the exemption from liability even "if the master neglectfully or intentionally fails to perform what otherwise would be his duty, a servant who becomes aware of a dangerous condition of employment ordinarily has no cause of action for harm thereby suffered. See § 521." Plaintiff therefore may not recover from defendant as her injuries were caused by fellow servants.
Plaintiff contends defendant should be liable, asserting he knew, and defendant did not know, about the pushing, bumping and running of younger persons on the plateau and did not warn plaintiff thereof. We have examined the evidence carefully and have come to the conclusion defendant only knew of complaints youngsters sometimes "laughed or chew gum or * * * misbehaved, and they were told not to"; that they were "pushing people" in other scenes below, but not on Crucifixion Hill, and word had come to him they were running straight down the hill instead of on the path, yet in 25 years he never had a complaint they were knocking anybody down. The court admitted evidence by plaintiff of a conversation with defendant after the accident in which he told her his daughter (at a time not stated) had been run into and stumbled a few steps. Assuming it was admissible, this evidence did not fasten liability on defendant for either of two reasons. If held sufficient to charge defendant with knowledge of the limited facts elicited, we conclude it was insufficient5 to charge him with knowledge there was conduct resulting in people being knocked down. If sufficient for the latter purpose to charge defendant with know-edge of this conduct when he was the central figure and actor in the climax of the play, then plaintiff as part of the crowd or mob was chargeable with knowledge of its activities and assumed the risks and dangers involved. In the many times she had taken part in the play she had mingled with and was a part of the participants who were running, screaming and yell[19]*19ing.6 What was said of the lack of railing likewise applies to this conduct. Restatement, Second, Agency, § 505, Comment j, states:
"j. Defenses.....A servant working with other servants whom he knows to be incompetent or too few in number ordinarily has no cause of action against the master if he is hurt because of this. See § 521."
She was where 'she had equal or better knowledge of what was occurring for 25 years than defendant (see 35 Am.Jur., Master and Servant, § 128) and if there was pushing, etc., she chose to continue in this part of the play which was voluntary on her part.7 She is chargeable with knowledge of the condition of the area, i. e., that it had no railing, and of the past conduct of the cast and will not be heard to claim ignorance of either. This was not the unforeseen situation or unanticipated conduct present in Nepstad v. Randall, 82 S.D. 615, 152 N.W.2d 383, which was held to be no bar to recovery under the assumption of risk doctrine.
The trial court erred in denying the motion for judgment n. o. v. and the judgment is therefore reversed with instructions to enter judgment for defendant.
ROBERTS and RENTTO, JJ„ concur.
HANSON, J., dissents.
HOMEYER, P. J., concurs in dissent.