NORTONI, J.
(after stating the facts). — The question with which we are called upon to deal, is, did the trial court err in peremptorily directing a verdict for defendant' at the close of all the evidence? We are inclined to the opinion that the facts developed made a proper case for the jury.
1. In support of the action of the court below, respondent advances, first, the argument that appellant assumed the risk and that he is therefore precluded from recovery. This defense is not pleaded in the answer and would not be open for review here were it not for the fact that on the trial, evidence tending to prove that* appellant assumed the risk avús not objected to by him and in fact, he offered evidence in chief to the effect that he did not assume the risk by testifying that he was unaware of taking any risk from the piles of planks falling on him. The trial of the cause in the court beloAv having been conducted by both parties on this theory, it is our duty, in justice to the trial court, to review it here on the same theory, to the end that nothing more nor less than the cause as tried below, shall be reviewed on appeal. [Epperson v. Postal Tel. Co., 155 Mo. 370-371, 50 S. W. 795, 55 S. W. 1050.]
2. To deal, then, with the question of assuming the risk, it is proper to state the rule in that behalf', as we understand it. It is this: The servant, upon entering the service of the master, impliedly assumes by his contract of hire, for the same compensation, the hazards which result from such risks as are ordinarily incident to the employment in which he engages, and in addition to these risks, ordinarily incident, etc., he also either by entering or continuing in the service and using, without complaint, defective machinery or appliances, or without complaint, continuing to labor in an unsafe or dangerous^ place, assumes the risks of such defective machinery or appliances or unsafe or dangerous place, provided he kneAV not only that the machinery or appliances were defective or the place unsafe, but also knew [308]*308and understood and appreciated the dangers which were ■ liable to result therefrom, and that he understood and appreciated the dangers must be made to appear, first, by either positive evidence to that effect, or else, second, the danger as well as the defect must have been obvious. [Lee v. Ry. Co., 112 Mo. App. 372, 87 S. W. 12-18; Ziegemeyer v. Goets L. & C. Co., 113 Mo. App. 330, 88 S. W. 142; Epperson v. Postal Tel. Co., 155 Mo. 372, 50 S. W. 795, 55 S. W. 1050.] This being the settled rule on the subject, the inquiry is, does the evidence in this case so conclusively show, that it became a matter of law for the court, that the injury which befell the appellant was either, first, a hazard ordinarily incident to the employment at the mill? or, second, is it shown conclusively on the whole record so that it becomes a matter of law for the court, that the appliances furnished with which to perform the labor assigned to him, or the place in which he was required to labor, were both defective and unsafe and that he knew of such unsafety and understood and appreciated the danger likely to overtake him therefrom? or was the danger therefrom obvious to anyone, either servant or master? We do not understand the risk of the stack of lumber falling to be one ordinarily incident to the employment. It seems to us that there are several reasons which militate against this proposition. First, it is not an inherent trait of a stack o-f sawed lumber five or six feet high, to topple over and fall, even when aided, as in this case, by the entangled plank and the slight jar therefrom. Such occurence, in the nature of things, could come about only through some negligence in constructing the pile. One of the absolute duties of the master is to furnish the servant a reasonably safe place in which to perform his labor; in a relative sense, as safe as is consistent with the labor he is engaged in performing: that is, the law requires the master to furnish his .servant a suitable place in which to do his work, where, by the exercise of ordinary care on the part of the servant, he may perform his labor [309]*309with safety, or subject only to such hazards as aré necessarily incident to the employment. [Zeigemeyer v. Goetz L. & C. Co., 113 Mo. App. 330, 88 S. W. 141; Bradley v. Ry. Co., 138 Mo. 293, 39 S. W. 763; Sullivan v. India Mfg. Co., 113 Mass. 296.] And in this connection, we must remember that the mere furnishing of the safe place and safe appliances as above mentioned, are not sufficient, for this positive duty of the master is a continuing one and the obligation is ever present, requiring the master to continue the place and appliances safe as above indicated and in the discharge of this duty, the master is required to exercise ordinary care and circumspection in order to discover hidden and latent dangers. It is true that such dangers and defects which are undiscoverable by the master by the exercise of ordinary care on his part to that end, are assumed by the servant. The servant is not required, however, to seek out hidden and latent dangers which are possible of discovery by ordinary care, for this is the master’s duty, and the servant has the right to assume and rely upon the assumption that the master has performed this duty, personal to himself. But inasmuch as the lumber was sawed and piled by others than the appellant, under the direction of the superintendent, he assumed, then only such risks of injury as lay hidden and concealed in the pile of planks which were undiscoverable by ordinary care on the master’s part, and this defect in the pile of planks is certainly not one of that class. The evidence shows conclusively that it was constructed of planks of different lengths, varying from eighteen to thirty-two feet and loosely laid one upon another, some of which were' narrow and others wide, and in all, five or six feet in height. The liability of its toppling over and falling, under the circumstances detailed' in evidence, was patent to the master, ■ on whom the obligation of its discovery rested, by exercising ordinary care in that behalf.' We therefore hold that appellant did not assume the risk as one ordinarily incident to the employment.
[310]*3103. We come now to consider, did he assume the risk by continuing in the service, knowing the liability of these piles of planks as so constructed, to topple over and fall, thus rendering his place of labor unsafe to the extent that its dangers were appreciated and understood by him or were such dangers obvious? Appellant himself testified that he had never seen one of these piles topple over, save once, and on that occasion it did not fall. Respondent’s superintendent testified that in his services for twenty-one years, Avhile the falling of the piles was frequent, no one was ever, injured thereby prior to the appellant’s injury. We are of the opinion, therefore, that on this evidence appellant is not precluded from a recovery as a matter of law as having assumed the risk by virtue of the maxim, volenti non fit injuria, for the following two very sufficient reasons: First, where the assumption of the risk is cast upon the servant by virtue of the doctrine of knowledge of and assent to danger, resting upon the maxim aforesaid, the evidence must be positive to the effect that the servant uncomplainingly remained in the service with full knoAvledge of the risk incurred and further, that he understood and appreciated the consequent dangers. In the state of the record disclosing that the appellant had not seen the pile fall over except as above indicated, and no one in twenty-one years past, nor prior to that time, so far as the record shows, had been injured by such fall, we certainly cannot hold it to appear as a matter of law that appellant appreciated and' understood the danger, even though he had known the piles thus constructed were liable to fall. For in the doctrine of assumption of the risk under this head, the law is abundantly settled by the adjudicated cases to the effect that it is in a. case of patent and obvious dangers alone that the law will charge the servant with knowledge, or in other words, the law Avill only presume that the servant knew of such dangers as were obvious from a given defect and necessarily sequent therefrom. [Lee v. Railway Co., 112 Mo. [311]*311App. 372, 87 S. W. 18.] Or as the principle is aptly stated by the United States Circuit Court of Appeals: “To justify the presumption of knowledge, the defect must be obvious and its dangers equally plain to one and all attentive.” [Valley Ry. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 261.] Or in the language of Judge Rombauer, in his dissenting opinion delivered while a member of this court in Fugler v. Bothe, and adopted by the Supreme Court, reported 117 Mo. 501, 22 S. W. 1113; “If the risk is such as to be perfectly obvious to any man, either servant or master, then .the servant assumes the risk.”
We are constrained, therefore, to hold that even though appellant may have had knowledge that the stacks of planks were liable occasionally to fall, that the danger therefrom in this instance was certainly not obvious to him ip the sense of the adjudications on the subject so that he was charged with constructive knowledge of such danger as a matter of law and the question of whether or not he assumed the risk, we hold,'was properly for the jury.
4. While it is not essential to the decision here, it may not be out of order to briefly notice a proposition advanced by the learned counsel for. appellant in his brief to the effect that in no case does the servant assume the risk of the master’s negligence. We are aware that there are several cases where statements to this effect have been made, but we do not concur in that view, and it is not the doctrine of this court nor is it the doctrine of our Supreme Court on the subject, when the proposition is squarely in judgment. Nearly or about all, and possibly all of those risks which are assumed by the servant aside from those ordinarily incident, etc., upon the doctrine of knowledge of and assent to the risk, arising under that branch of the law under this head, resting upon the maxim, volenti non fit injuria, are risks which arise by the negligence of the master and that there may be an assumption in such case is beyond con[312]*312troversy. For instance, it is well settled that if the appliances or the place furnished the servant is safe and secure at the initiation of the service, yet during the employment, through the negligence of the master, they are allowed to become unsafe and defective and the servant has full knowledge of the defective and unsafe condition thereof and makes no complaint, but continues in' the service knowing and understanding and appreciating the danger liable to result from such unsafe and defective condition, and thus, with full knowledge, assents to this increased hazard which came into the service in consequence of the master’s neglect and without complaint exposes himself thereto, he is taken to have assumed this risk also, although it arose from the master’s negligence. Such risks are treated as extra hazards and the servant’s assumption thereof is predicated upon the theory of his knowledge and appreciation of the dangers and voluntary assent thereto, as happily expressed in the maxim, volenti non fit injuria, involving the idea that he who consents cannot receive an injury.'
The doctrine of our Supreme Court on this question is most clearly stated in Epperson v. Postal Tel. Co., 155 Mo. l. c. 372, a case before the court in banc, where a full half-page of authorities are cited in support of it. It is the doctrine of every jurisdiction where the common law obtains, so far as we can ascertain, and in every case where the question was squarely in judgment, has been so decided. This court recently had occasion to call attention to the doctrine in Lee v. Railway Co., 112 Mo. App. 372, 87 S. W. 12, where the authorities are accumulated and cited. The doctrine here referred to rests upon both principle and authority and is as firmly imbedded in the law as the rule that risks ordinarily incident, are assumed.
5. The evidence tends to show and does show that Mr. Maddox had general superintending Control of the mill and of the men thereabout, by whatever title' he may have been known, and that Mr.' Austin had charge [313]*313of the edger and the several men working therewith, of which this appellant was one. It is true that both the appellant and his immediate superior, Austin, were each under the supervising control of Maddox. It was the duty of Austin to run the planks through the edger and appellant and one Eice were his helpers in off-bearing the rods cut therefrom, and otherwise when called upon, they assisted Austin to place heavy planks from the pile onto the edger table preparatory to running them through the machine. It is also established beyond controversy that when appellant was assigned to work at the edger, Maddox, the superintendent, instructed him to do what Austin told him to do and that both he and Eice were required to obey his orders in respect to the work about the edger. On this state of the evidence, in view of the fact that both appellant and his immediate superior, Austin, were under Maddox, it is contended that Austin was a fellow-servant with appellant and that, inasmuch as the pile of planks in the rear of the one which fell upon appellant, was caused to fall by Austin having gotten a plank which he was attempting to place upon the edger table, entangled therein and thus precipitated it over against the pile next in front, thereby causing it to fall and injure the appellant; that the proximate cause of appellant’s injury was the negligent act of Austin in the capacity of fellow-servant to appellant, and therefore the trial court acted properly in holding that appellant could not recover.
It is unnecessary for us to attempt to define who are and who are not fellow-servants. It could serve no good purpose here to go into this much-vexed question. Suffice to say that it now stands conceded on this record that Austin occupied a dual capacity toward appellant. The dual-capacity doctrine is the law of this State. It is so firmly rooted in our jurisprudence that it is established beyond all controversy and has been so expressly decided in numerous cases. [Fogarty v. St. Louis Transfer Co., 180 Mo. 505, 79 S. W. 664; [314]*314Bane v. Irwin, 172 Mo. 307, 72 S. W. 522; Bien v. Transit Co., 108 Mo. App. 399.] Austin, then, was a vice-principal, in so far as he represented the master in discharging those duties which were personal to the master, and the fact that Maddox had general superintending control over both Austin and appellant did not render them fellow-servants. [Bane v. Irwin, 172 Mo. 317; Bien v. Transit Co., 108 Mo App. 399, 83 S. W. 986.] It of course necessarily follows that, although the servant, who is a vice-principal as to certain of his duties and while engaged in such duties which are personal to and absolute upon the master, he is also, while engaged in the ordinary duties of the servant in so far as he thus disrobes himself of the master’s duties and participates in those of a co-laborer, a fellow-servant to that extent, and his negligence, while thus acting as a fellow-servant will not charge the master with liability to a fellow-servant therefor. [Hawk v. Lumber Co., 166 Mo. 129, 65 S. W. 1022; Fogarty v. St. Louis Transfer Co., 180 Mo. 503, 79 S. W. 664; Harper v. Railway Co., 47 Mo. 580; 12 Am. and Eng. Ency. Law (2 Ed.), 949.] And hence the law is well established that it is the act from which the injury results, performed by the person occupying this dual capacity and not the rank, which is the true test of the master’s liability thereunder. [Bane v. Irwin, Hawk v. Lumber Co., Fogarty v. St. Louis Transfer Co., and Bien v. Transit Co., supra.]
Succinctly stated, the argument is that Austin disrobed himself as vice-principal, and acting in the capacity of laborer and fellow-servant, proceeded in company with the witness Rice, to pick up a heavy plank, placing one end thereof on the table and in thus acting as laborer carelessly entagled the other end under a pile of lumber, from which entanglement, the planks, a moment later, were caused to fall and injure appellant, and that therefore a recovery is precluded. In meeting this proposition, we must say that this act was the negligent act of [315]*315Austin while acting in the capacity of fellow-servant, and there can be no doubt that if appellant predicated his right of recovery on this negligent act of Austin, we would be compelled to so hold and affirm the judgment. In fact, we have been much impressed with this contention and especially so, when viewed in the light of Hawk v. Lumber Company, 166 Mo. 129, 65 S. W. 1022. In that case, the act of negligence of which complaint was made and on which the right of recovery was predicated, was the negligent act of the vice-principal while acting in the capacity of co-laborer, but on careful consideration, it will be observed that that case is not in point here. The distinguishing feature is that in this case the acts of negligence alleged in the petition are the negligent stacking of the lumber and thus rendering the place unsafe and the negligence of the vice-principal in ordering the appellant into such unsafe place, thus causing his injury. The following from the petition is conclusive on the allegation of negligence: “While this plaintiff, as a common laborer, was in the line of his duty in the employ of defendant at its said factory, defendant’s foreman, having direction and control of plaintiff, carelessly and negligently directed, ordered and required the plaintiff to go near said stacks of lumber, to assist in lifting a large plank that was lying Avith one end on the table of the large edger saw and the other end on or near the floor of said factory; that Avhile he Avas stooped to take hold of said plank, one of said, unbraced, insecure and dangerous stacks of lumber, about six feet high, so carelessly and negligently stacked as aforesaid, suddenly and violently fell doAvn, i\pon and across the body and legs of plaintiff,” etc. There is not a word contained in the petition relative to the act of Austin in entangling the plank in the pile. No complaint was made on that score nor does the appellant mention such fact in his testimony. It comes into the case first by the respondent’s witness. The alleged negligence is the order of Austin to appellant to go into the place of danger, [316]*316precisely as in Bane v. Irwin, 172 Mo. 317, and the evidence is conclusive to the effect that Austin first took up the plank and caused it to become entangled in the pile of planks, and having thus, by his act of fellow-service, created and made a place which might have otherwise been safe, an unsafe and a dangerous place, then immediately upon creating the unsafe place, as a fellow-servant, enrobed himself with the authority of the master and carelessly ordered and directed the appellant therein to his hurt and injury. The evidence shows that appellant) acting in obedience to this order, was required to move quickly and went into the place assuming, as he had a right to assume, that the place was safe for the purpose for which the master’s alter ego ordered him therein, for the servant has a right, under such circumstances, to assume that the master or his,alter ego will not send him into a place of danger without assuming the risks of so doing. [Bane v. Irwin, 172 Mo. 306, 72 S. W. 522; Doyle v. M. K. & T. Trust Co., 140 Mo. 18, 41 S. W. 255; Sullivan v. Railway Co., 107 Mo. 78, 17 S. W. 748.] In Bane v. Irwin, 172 Mo. 306, 72 S. W. 522, the vice-principal, by an act of fellow-service, ignited the fuse attached to a blast and thus rendered the place, otherwise safe, an unsafe and dangerous place, and ordered the plaintiff into it. The blast exploded, and plaintiff was injured by losing both eyes. On the defense of fellow-service, the Supreme Court, speaking through Gantt, P. J., said: “The negligence in this case was the negligent order to plaintiff to return to the dangerous place and fire the remaining shot, and the injury was the consequent result of that order and not the negligent loading and tamping of the shot. While Gibbs acted in a dual capacity, the injury resulted from the order, in making which he represented the master.” This case is in point and controlling here on this question. See also Chicago Hair Co. v. Mueller, 203 Ill. 558, and the very able and learned opinion of the court in banc, written by Judge Marshall in Fogarty v. Trans[317]*317fer Co., 180 Mo. 490, 79 S. W. 664. In that case, Judge Mabshall said:
“In Chicago Hair Co. v. Mueller, 203 Ill. 558, the foreman had been engaged in throwing down bales of hair from a high pile, and the plaintiff had been engaged in moving them to another place in the factory. The foreman left the pile in an unsafe condition, and went to another part of the factory. The foreman ordered the plaintiff to go back and get two bales .that had been thrown down from the pile. While so doing some of the bales fell down from the pile that had been left in an insecure position by the foreman, and injured the plaintiff. A recovery was allowed to stand. This was manifestly upon the ground that the foreman had failed in his duty as a vice-principal in ordering the plaintiff to work in an unsafe place. The fact that the foreman in his capacity of co-laborer had produced the unsafe place is immaterial, for it was his duty as a vice-principal not to order the plaintiff to work in an unsafe place; or otherwise stated, to furnish the plaintiff a reasonably safe place in which to work. The court said: ‘The mere fact that Hermes (the foreman) engaged in some labor as a common laborer did not, as a matter of law, make him any the less a vice-principal.’ ”
We are persuaded, therefore, that the learned trial judge erred in holding that the negligent act of the fellow-servant was the proximate cause of the injury, inasmuch as the declaration and proof show that it was the negligent order of the master’s alter ego which caused appellant to assume the position which rendered his injury possible, for without the negligent order of the master to assume the position of danger created by the fellow-servant, no injury could have befallen the appellant. The negligent order given by Austin in his capacity as vice-principal in discharging a duty absolute and personal to the master, was the proximate cause of the injury.
6. There is an additional reason, however, why we [318]*318think liability might attach to the master in this case even though the act of Austin as fellow-servant contributed to cause the lumber to fall, and that is, it is well-settled law that when the negligence of the master is combined with that of the fellow-servant in producing the injury, and the negligence of neither alone is the efficient cause, both the master and fellow-servant are liable and the injured servant may maintain his action against either or both, on account of such injury. [Browning v. Railway Co., 124 Mo. 55, 27 S. W. 644; Young v. Shickle, H. & H. Co., 103 Mo. 324, 15 S. W. 771; Irmer v. Brewing Co., 69 Mo. App. 17; 12 Am. and Eng. Ency. Law (2 Ed.), 905.] The manner of piling these heavy planks, long and short, wide and narrow, to such a height on skids without any kind of precaution to prevent their falling, was certainly evidence of negligence on that score to go to the jury, yet they might not have been overturned in this instance except for the act of the fellow-servant, Austin, in entangling the large plank thereunder. Thus we have three negligent acts; the one, that of the master, performed under the direction and supervision of Maddox, the superintendent, in stacking the lumber; and, second, the negligent order of Austin in his capacity of vice-principal to appellant to go into the dangerous place, both acts of negligence on the master’s part; and, third, that of Austin in his capacity of fellow-servant in causing the lumber to fall, and these three acts combined and concurred to the appellant’s hurt, and on this theory, we are persuaded the appellant would be entitled to go to the jury as well as on the theory heretofore mentioned.
7. The learned counsel for respondent argues, however, that the doctrine of safe place is not applicable to this case and therefore the negligent order of the vice-principal to appellant to go into an unsafe place could not authorize a recovery on that account as there was no obligation on the master to furnish a safe place. It is true that the general rule of safe place is not pertinent [319]*319to every case and that it has one well-defined exception and there sometimes arises a state of facts for adjudication where the principle has no forceful application. The exception, as we view it, rests.upon the reason and the inherent justice of the law which never requires or commands the doing of an impossible thing, and is that the master is exempt from furnishing a servant a safe place in which to work when the danger is temporary only and arises from the hazardous nature and the progress of the work itself and is known to the servant. The doctrine has special application to that class of cases in which the servant is employed to make a safe place unsafe, as for instance, undermining an embankment, where from the very nature of the work, there is a constant menace of danger and the injury results from a risk essentially incident to such employment, for in such a case, where the prosecution of the work itself renders the place unsafe, it would be out of the question to require the master to maintain it a safe place. It has also been applied to the case of buildings, where under the peculiar state of facts, the progress of the work itself rendered the place otherwise safe, to be unsafe. In such case, no recovery cán be had by the servant if the master has taken such reasonable precautions to prevent injury as are consistent with the nature of the work. The doctrine, it will be seen, amounts to the same as to the doctrine of risks ordinarily incident to the employment being assumed by the servant. It is abundantly supported by authorities, however, under the head of an exception to the rule of safe place. [Bradley v. Ry. Co., 138 Mo. 302, 39 S. W. 763; Armour v. Hahn, 111 U. S. 313; Davis v. Mining Co., 117 Fed. 122; Brown v. King, 100 Fed. 561; 40 C. C. A. 545; 20 Am. and Eng. Ency. Law (2 Ed.), 57.] And in Ziegemeyer v. Goetz Lime & Cement Co., the authorities on the subject are collected and cited.
We are of the opinion that the case at bar does not fall within the exception stated. The principle of safe [320]*320place, with its necessary limitations, that is, in a relative sense, is applicable here, for it was the absolute duty of the master to furnish appellant with a place in which to perform his labor, as reasonably safe as the nature of the employment permitted, and in default of this and any consequent hurt to appellant from such negligence other than that of fellow-servants and risks assumed, while the appellant was exercising ordinary care on his part, would entitle him to recover.
The mere knowledge of appellant that respondent was negligent in piling the planks and that they were liable to fall, would not preclude his right of recovery on the theory of contributory negligence unless the pile? thus constructed were so dangerous as to threaten immediate injury, for if the situation was such that he might have reasonably supposed that he could work about it by the exercise of ordinary care and caution, he had the right to continue in the service without becoming charged as a matter of law with contributory negligence. The negligence on the part of the servant in such case doés not necessarily arise from his knowledge of the defect, but is a question of fact to be determined from such knowledge and other circumstances in evidence. This, too, was a question for the jury. [Mathias v. Stock Yards Co., 185. Mo. 434, 84 S. W. 70; Hamilton v. Coal Co., 108 Mo. 275; Hahn v. Railway Co., 92 Mo. 440, 4 S. W. 937; Stoddard v. Railway Co., 65 Mo. 514; Lee v. Railway Co., 112 Mo. App. 372, 87 S. W. 23.]
We are inclined to the opinion that the learned trial judge erred in declining to submit the issues to the jury and the judgment is therefore reversed and the cause remanded to be proceeded with as herein indicated. Bland, P. J., concurs; Goode, J., holds that what has been said herein, in dealing with the question of assumed risk, is sound in principle, but is of opinion that it is more or less in conflict with certain views expressed in the late case of Blundell v. Miller Elevator [321]*321Co., 189 Mo. 552, 88 S. W. 103, and therefore desires to be marked as concurring in the result only, and files a separate opinion.