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cording to plaintiff's evidence, the upper end, therefore plaintiff made no case for the jury. of Brown's ladder rested either on a joist or Plaintiff in turn complains of the giving on the shaft to one side of the dead pulley. of four instructions (2, 4, 5, and 7) on behalf Plaintiff thinks it was the joist at the ceiling. of defendant, all of which will appear in due The upper end of plaintiff's ladder rested course. His counsel argue that the motion against the shaft on the other side of the for a new trial was well ruled because of erdead pulley. Defendant put in proof tend-ror in those instructions; further that, ing to show that plaintiff's ladder rested though the court did not specify other against a wheat bin, or "stock hopper," a grounds in its order sustaining the motion, little to one side, but the divergence is imma- yet, if there be other grounds for a new trial terial. When Brown took his position on present, then such other grounds sustain the the long ladder to put on the belt, he was in order granting a new trial, and, on this head, a position to look down on plaintiff in posi- his counsel invoke the doctrine that in granttion on the short ladder. On his part plain- | ing a new trial there is a discretion in the tiff would also look down but away from trial court where the verdict is against the Brown. Standing on the narrow rung of the weight of the evidence. From that angle alladder, to lean over and lift so heavy and so they contend (that element being present stiff a belt, it was necessary for plaintiff to and noticed in the motion for a new trial) the brace himself against something, and he did order granting a new trial was well enough. brace himself against the pulley. In this con- Such substantially is the case. Any other dition plaintiff handed up slack once and facts germane to a disposition of points rulBrown took it. Plaintiff then reached down ed will appear further on in due order. to pull up more of the slack, warning Brown at the time to be careful.

All sides agree

I. Of Defendant's Demurrer (and Herein that it was customary and necessary for the of the Mandatory Instruction). man manipulating the belt on the pulley to [1] In their original brief counsel did give warning to the other man when the belt not make the point that Brown and Barker began to take hold or crawl so that he might were fellow servants, and hence the demurlet loose or otherwise protect himself against rer lay. It is made in their reply brief for its going on with the full force of the driv- the first time, and is there justified because ing pulley. Plaintiff expected such warning, plaintiff insists on sustaining the order grantbut says he never received it. To the con- ing a new trial, not only on the specifications trary, according to his testimony, when his made by the trial judge, but on other grounds face was toward the floor and he could not as well. The appearance of the point is see Brown's hands or the position of the belt therefore late and somewhat by way of afteron the dead pulley, Brown put the belt on thought or counterthrust. Assuming, withwhile plaintiff, so on the rung of the ladder, out deciding, that a defendant may appeal was in the very act of stooping over and pull- from an order granting a new trial and have ing on it from below to assist hini, and, the the order reversed because plaintiff at the motion going on suddenly and without warn- first trial did not make out a case (thereby ing, he was thereby thrown violently to the taking away his chance of making one at the floor, and was gravely injured in having his second trial), we proceed to dispose of the hip fractured.

demurrer and the mandatory instruction on Brown, testifying for defendant, says he their merits, applying the theory that, if gave warning to plaintiff at the crucial in- plaintiff made no case, he could not complain stant, but at the same time says he did not of the verdict, or of defendant's instructions know plaintiff had hold of the belt at that (Fritz v. Railroad, 243 Mo. loc. cit. 69, 148 time or at any other time. As we gather it, S. W. 74), and hence was not entitled to a his idea was that plaintiff was to use his new trial. hands in turning the dead pulley, not to hand In our opinion, the doctrine of fellow seryup the slack. In other words, he (Brown) ant does not bar recovery in this case as a with his one hand was to lift the 75-pound matter of law. This because there is no disstiff belt and put it on the pulley without pute on this record but that Brown was the plaintiff's touching it. To contradict the the superintendent of the mill, and, as such, had ory that he was expected to manipulate the exclusive supervision of its operations and pulley itself, plaintiff testified (and he had of the men employed therein including the other testimony to the effect) that it would two millwrights, Bennett and Barker. The take five or six horse power to turn the dead whole case runs on the theory that Brown, pulley.

both in rank, capacity, and act, represented With the proof as outlined, defendant offer the master. To say that Brown and Barker ed a demurrer at the close of plaintiff's evi- were in a common employment is to say that dence in chief, and again asked a mandatory the captain of a ship and a sailor are in instruction at the close of the whole case, common employment, because they are both, both of which were refused, and now on ap- in a general sense, engaged in sailing the peal its counsel argue not only that the ques- ship. The facts, then, make it a typical case tioned instructions were good, but that plain of Superintendent Brown being the vice printiff and Brown were fellow servants in and cipal of the corporate master. Unless his about the matter of putting on the belt, and eye, voice, hand, and acts were the master's,

then the master on this record was absent position; that is to say, he may at the same from that mill, and neither acted per se or time be a fellow servant and an agent or repper alium there at any time. This general duties which are personal to the master, and

resentative of the master. There are certain relation obtained, too, in the very act of put for the non performance of which he is liable ting on the belt. Brown, for the master, ap- to his servants. These duties may be delegated pointed the time, directed the method, and to a foreman or even to a servant, and the masassumed an attitude of a superior to a subor-Again, cases often arise where the master be

ter is still liable for their nonperformance. dinate in the performance of that service. comes liable by reason of the fact that be underLet us copy a bit of the record on the point takes by himself or through a representative and from that discern the trend of the whole to do certain things which might have been

left to the servant to perform.” of it (Brown being on the stand):

"Q. Tell us what you said to him. A. Well, The premises considered, defendant's desome time before we put the belt on I was murrer and mandatory instruction were well up on the floor he was working on, and I told ruled below. him-I says, 'We will put the belt on, Mr. Barker.'. Q. Speak up so that I can understand. A. I says, "We will put the belt on when you

II. Of the Given Instructions for Defendget your work finished up, when you get that

ant Alleged to be Erroneous. job completed.' He was connecting the power

Of th to the lower part of the agitator. Q. Didn't

series of instructions given for de you mean by that a direction to come and as- | fendant, plaintiff complains now of the secsist you? A. I told him we would put the ond, fourth, fifth, and seventh, and his counbelt on. Q. You were right there and had a sel argue that the order granting a new trial right to direct him, didn't you? * * A. He was working under my directions and instruc- may stand on the theory one and all were ertions.

Q. He was there subject to roneous. They read : your direction and instruction? A. Yes, sir.

"(2) The jury are instructed that there is no Q. And you told him-you said you would put evidence in this case that the condition of Mr. that belt on. Didn't you mean that as a direc- Brown's left hand directly caused, or directly tion to assist you whenever you got ready to contributed to cause, the plaintiff's injuries do so? A. It would mean that. Q. That was (if any), and your finding on that issue must be what you meant him to understand, wasn't it, for the defendant." when you said that? A. Yes, sir."

"(4) Even if the jury believe from the evi. It would be unprofitable to reagitate the dence that the witness Brown was plaintiff's vexed question, Who is a fellow servant? or superior officer, and that said Brown was neglito reformulate or reannounce the doctrine of he and plaintiff were engaged at the time plain

gent in the performance of the work in which this court in that behalf. Error often lurks tiff claims to have been injured, and that such in generalities, and no rule can be laid down negligence was the direct cause of plaintiff's that would fit all cases. It would be a bola injuries (if any), yet, if you further believe

from the evidence that such negligence consistjudge who said that appellate courts had al-ed solely in Brown's choice of the method of ways been able to hold a steady and even place performing such work, and that plaintiff voice in promulgating or applying general and defendant were, or, by the exercise of ordiprinciples on this head. Cases may be found nary care, should have been, equally advised

that such method was not reasonably safe (if that approach the matter from this, that, or it was not), and of all the risks and dangers the other angle (including that of "dual capa- (if any) incident to the performance of such city'); but no soundly reasoned case can be work according to such method, then your verfound, I think, where the master had a con

dict must be for the defendant.

“(5) The jury are instructed that the plainceded vice principal present, as here, and tiff, in entering the employ of defendant and where such vice principal personally, by vir- continuing to work for it, assured the risks tue of being master and in the line of his (if any) there were growing out of any danger rank and duty, took charge of a transaction which he was engaged in the usual and ordi

there may have been in doing the work at and injured an employé negligently by ex nary way. If, therefore, it appears from the posing him to extra hazard, or by making his evidence that the plaintiff's injuries (if any) field of operations unreasonably unsafe, where

were the result of such risk, then defendant is

not in law at fault therefor, and it is your the doctrine of fellow servant was allowed to duty, without regard to the other questions in bar 'recovery. The reasoning and facts of the case, to return a verdict in its favor." many cases sustain that view of it. For ex "(7) Plaintiff was bound to use his senses and ample: Hollweg v. Telephone Co., 195 Mo. intelligence and experience in and about the

doing of his work, and if he failed to use eiloc. cit. 156 et seq., 93 S. W. 262, and cases ther to the extent to which a person of ordicited; Russ v. Ry. Co., 112 Mo. 45, 20 S. W. nary care of his age and experience would have 472, 18 L. R. A. 823; Burkard V. Rope used them under the circumstances as they Co., 217 Mo. loc. cit. 480 et seq., 117 S. W. 35; failure directly contributed to cause his injuries

existed at the time he was injured, and if such Bien v. Transit Co., 108 Mo. App. 399, 83 S. (if any), then he is not entitled to recover in W. 986; Dayharsh v. Ry. Co., 103 Mo. loc. this case, and you must find for the defendant, cit. 576 et seq., 15 S. W. 554, 23 Am. St. Rep. and this is so even though you should find that 900; Miller v. Ry. Co., 109 Mo, loc. cit. 356 the defendant was also negligent or failed in

some duty it owed to plaintiff.” et seq., 19 S. W. 58, 32 Am. St. Rep. 673; McIntyre v. Tebbetts, 165 S. W. 757, not yet instruction No. 2 was correct attend to more

[2] (a) To determine whether defendant's officially reported. In the Miller Case, supra, Black, J., summarizes the grounds of of the record: The petition describes superliability in this acceptable way:

intendent Brown as a man "who was physi. “There is no doubt but a foreman or other cally incapacitated to do such work,” meanrepresentative of the master may occupy a dual / ing thereby the work of putting on such a

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belt in the way adopted. Evidently, at least, | ging Brown's crippled hand into the case, defendant's counsel had made reference in and though the court, without committing his opening statement to a crippled hand of error, might have left the evidence stand as Mr. Brown, and had advanced the theory a circumstance for what it was worth in that plaintiff knew all about it. We conclude connection with all the other facts and cirso from the subjoined questions propounded cumstances, yet we cannot see that the merits to plaintiff when on the stand in chief and of plaintiff's case were materially affected the answers thereto:

by the instruction, even as broad as it is. "Q. Now, you heard Mr. Boyle's statement Hence, if there was no other error at the here about Mr. Brown having a crippled hand? trial, the order granting a new one could not Did you know about that? facts were in regard to that. A. That is a false well stand on such a narrow and precarious statement; I didn't know it. I never knew he point. had a crippled hand until after the thing hap

[3] (b) In disposing of the fourth instrucpened, because we had never done any work with him or been intimately associated with tion, attend further to the record: Defendnim. Q. Which band was it that was crippled? ant's principal witness, its only reliance, was A. I think it is his left hand.”

Superintendent Brown. As already indicatPresently when one Remley was on the ed, there is substantial agreement between stand for plaintiff the latter's counsel sought him and plaintiff on the necessity of notice to show that Brown had a crippled hand. to the helper at the precise time the prinThereat defendant's counsel objected to the cipal actor “feels” the belt beginning to crawl testimony because it “had no part or cut no or bite on the dead pulley. Now, plaintiff figure in this accident,

as shown says he received no such notice, though he by plaintiff's own testimony.” On this ob- was depending on it. Brown seems to admit jection plaintiff's counsel withdrew the chal. the need of it and the right of dependence lenged question. With the record in this on it. He acquits himself by saying he gave fix, defendant's counsel, not content, later it in this form, "Look out,” and received the opened up the matter anew on their own response from plaintiff, “All right,” or “Let hook. When Brown was on the stand one her go.” As in the very old and quaint docof them propounded questions and received trine noticed by Abbott and borrowed from answers as follows:

Roccus (Abb. on Shipping, 371): "Q. Is this hand impaired as to strength by "If the mice eat the cargo and thereby ocreason of the bent condition of these two fin- casion no small injury to the merchant, the gers ? A. No, sir; I have as much strength as master must inake good the loss, because he is I ever had in the right hand. Q. Did the con- guilty of a fault; yet if he had cats on board dition of this hand in any way prevent you in his ship he shall be excused ” doin. the work of putting on that belt? * Q. Well, just describe to the jury in what way

-So here, this master stands on notice for you used or did use this hand, if at all, and his excuse. Notice is the cat that eats the what, if anything, the condition of the hand interfered with or affected it? A. Well, I didn't mouse, negligence. It would be to read this use this hand at all. All I used this hand whole record with inattention not to see for was on the ladder to support myself on the that the sharp turning point-the vital issue ladder-hold the ladder. I put the belt on--in the case rests on the timely giving of raised the belt-with my right hand.”

that notice. If the jury believed Brown on When plaintiff came to his instructions, he that issue, then plaintiff's case falls to the tendered no issue whatever on the condition ground. If the jury believed plaintiff, then of Brown's left hand and made no reference a clear case of negligence was made out on to the physical incapacity mentioned in his the part of the master, whose alter ego petition.

Brown was; and so, in effcct, the case was The real question, then, is: In the light of put to the jury in plaintiff's chief (and only the whole record, was it error to give instruc- general) instruction hereinbefore set forth. tion No. 2 for defendant? To support the The ladders used by Brown and plaintiff had instruction defendant's counsel argue after iron spikes below, but nothing to fasten them this fashion:

above. As said, Brown's leaned against the "It would appear from the record that the shaft or a ceiling joist, and plaintiff's leaned issue was not before the court, but, evidence being admitted tending to show that the witness against the shaft or a “stock hopper.” Mr. Brown had a crippled hand, it was proper for Brown says, in substance, that the belt was the court to limit its effect by instruction.” stiff and required strong pressure to put it

But it will be observed that the instruction on the dead pulley, and that, while giving does not limit the effect of the evidence. such pressure, and after the "look out" noContra, it is so worded as to entirely destroy tice, his ladder thereby was caused to slip its effect. Presently we will set forth facts away from the pulley and so far upset that from which we can get at Brown's theory of he jumped to the ffoor. As we read the how the accident happened, but for present | record, there is no causal connection between purposes it is sufficient to say that neither the shoving over of the upper end of Brown's in his nor in plaintiff's theory did the crip- ladder and the accident to plaintiff. The pled left hand of the superintendent connect inference to be drawn from Brown's version itself in a causal way with the accident. We is that his pressure on the belt shoved his conclude, then, that although defendant must own ladder over, and that the notice he gave stand sponsor equally with plaintiff for lug-' to plaintiff was timely and sufficient to put

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him on his guard. In this condition of things, sumption of risk has been defined by a disdefendant asked and received instruction No. criminating writer as: 4. It told the jury to find for defendant, al “A term or condition in a contract of emthough the master was negligent, and al- ployment, either express or implied from the though such negligence was the direct cause employé agrees that dangers of injury ordi

circumstances of the employment, by which the of the injuries, provided the jury found fur- narily or obviously incident to the discharge of ther that the master's negligence consisted his duty in the particular employment shall be

Bl. L. Dict. “solely” in Brown's choice "of the method of at his own risk. place (sic) performing such work," and also The words "or obviously" connect themfound that both the master and plaintiff were, selves logically with the doctrine of "Volenti or, by the exercise of ordinary care, should non fit injuria,” and are broad enough to have been, equally advised that such method cover the idea (among others) of known danwas not reasonably safe, and equally ad-gers voluntarily encountered. In this jurisvised of “all the risks and dangers (if any) diction it seems that, to settle liability for incident to the performance of such work ac- encountering dangers arising from the mascording to such method." That instruction ter's negligence that are so glaring and immiwas not the law of this case. It is wholly nent an ordinarily prudent person would not unsupported by the evidence. There was encounter them, reference is had to the docDone tending to show that the choice “of the trine of contributory negligence (sounding in method of place performing such work” tort), and not to the assumption of risk (whatever that may mean) was the only peg- (sounding in contract); for in this jurisdicligence of the master. The broad and action it has become settled doctrine that the cepted current of the proof on both sides is servant does not assume the risk of his mas. directly to the contrary. The negligence of ter's negligence. George v. Railroad, 225 Mo. the master, if any, was in the failure to give loc. cit. 408 et seq., 125 S. W. 196. The Misnotice at the crucial moment that the belt souri doctrine is that there is another term was going on. The method of performing express or implied, in the contract of employ. the work called for that notice. The in- ment between master and servant, to wit, struction eliminates that idea, and, while it that the master will exercise ordinary care to is not clear precisely what it does mean, protect his servant by (among other ways) yet it is plain enough that it directs the providing him a reasonably safe place to jury's attention to a feigned or false issue work; and that when the assumption of risk and away from the place or issue where the on the part of the servant and the aforesaid shoe actually pinched. The quail uses that assumption on the part of the master are aldevice to protect its young brood when sur- lowed to proceed hand in hand, as they prised by an intruder. One Alcibiades used should in holding the scales of justice true, it. I remember to have read in an idle hour it results that the risks assumed by the serv(i. e., before I came on this bench) that he ant are those which remain after the master had a very fine dog with a beautiful tail, has exercised ordinary care. Charlton v. costing (that is, the dog did) $1,000 or so. Railroad, 200 Mo. loc. cit. 433, 98 S. W. 529; This dog was a favorite in Athens (say B. C. Curtis v. McNair, 173 Mo. 270, 73 S. W. 167. 420), and its tail (proudly carried)

Assumption of risk and contributory negli. much admired by the versatile and artistic gence are two doctrines that so overlap and citizens of that town. Having cut off his intermingle on certain phases that in some dog's tail, and being brought to book therefor jurisdictions the obvious- or known-danger(for all I know before the dicasts at the voluntarily-encountered theory is put under judgment seat), Alcibiades justified himself the head of assumption of risk. A great jurby saying he cut it off so that the Athenians ist, Chief Justice Lemuel Shaw, first announcwould talk of that and say nothing worse of ed the doctrine of assumption of risk in this him. But the foregoing plan of obscuring country in 1842 in the Supreme Court of Masthe issue by putting forward something else sachusetts in the celebrated case of Farwell to talk about is no working theory in the v. Boston, etc., R. Co., 4 Metc. 49, 38 Am. Dec. administration of justice. The precept is: 339; 2 Bailey, Pers. Inj. (2d Ed.) § 353; 1 The law is always more praised when it is White, Pers. Inj. p. 417, n. 3. In defining it consonant with reason. Plaintiff was grave

was

he does not seem to include the element of ly injured and, if his story be true, had a known danger voluntarily encountered as meritorious case. He was entitled to have Black does, but puts the matter in this guardthe jury's mind focused on, not diverted from, the issues. Instruction No. 4 did not fill that ations as well of justice as of policy, is that

• The general rule, resulting from consideroffice, for that its tendency was to litter up he who engages in the employment of another the mind of the jury with a feigned issue. for the performance of specified duties and servIf the premises announce sound doctrine, as ices, for compensation, takes upon himself the we think they do, then the order granting to the performance of such services, and, in

natural and ordinary risks and perils incident a new trial stands safely on the theory legal presumption, the compensation is adjustthat instruction No. 4 was erroneous.

ed accordingly.” [4] (c) And this brings us to defendant's But philosophizing about the matter at this instruction No. 5 on assumption of risk. As day is unprofitable. This court has a doc

169 S.W.-4

ed way:

trine, as said, to wit, that the master cannot | men in the box understand, either taken in impliedly or expressly contract against his the aggregate or severally, by them? They own negligence, and hence the servant does smack much of argument by overpressing the not assume the risk of the master's negli- matter; and, in trying to assign a meaning gence; and that doctrine must supply the to such all-embracing terms as “senses," "intest or touchstone for the instruction in hand. telligence," "experience,” might not the jury See cases supra and Hutchison v. Richmond be led astray, and their native hue of common Safety Gate Co., 247 Mo. 71, 152 S. W. 52; sense (the immediate jewel of an ordinary Chambers v. Chester, 172 Mo. 461, 72 S. W. juryman's mind) become “sicklied o'er with 90.

the pale cast of thought,” or lost in a fog? In instruction No. 5 the doctrine of assump- We fear so-nay, we think so. Those words tion of risk is put to the jury as an abstrac- do not form part and parcel of the mild, simtion of law. Broadly interpreted, it is likely ple, and colorless definition of due care the its form would pass muster as an abstrac- law delights in. The beaten way is the best tion, although, critically speaking, it puts the way and the safe way. cart before the horse; it makes the injuries The conclusions reached make it unnecresult from the risk, instead of from the dan- essary to consider the question sprung by ger, ordinarily incident to the discharge of plaintiff, to wit, that the order granting a duty in the given employment. But that is new trial was within the discretionary power by the by; for there is a deeper-going objec- of the court relating to granting one when the tion to it, to wit, it had no place in the case verdict is against the weight of the evidence. under the facts of the record. The case In the face of another trial we prefer not to hinging on the giving of timely notice by the comment on that feature. master to the servant, what have the dangers It follows from what has been said that ordinarily incident to that form of employ- the judgment should be affirmed, and the ment or to the appliances they used to do cause remanded for the new trial granted be with the case? 18 a failure to give notice low. (the presiding fact in the case) an ordinary Let it be so ordered. All concur. incident the risk of which the servant assumed? Would not the jury so interpret such

COLLINSWORTH v. UNITED ZINC & rule falling from the lips of the judge and de

CHEMICAL CO. (No. 16223.) cisive of the whole case, as this one is? If so, then the servant assumes the risk of the

(Supreme Court of Missouri, Division No. 1.

June 30, 1914. Rehearing Denied master's negligence in a situation sprung sud

July 14, 1914.) denly and imperiously demanding the instant 1. MASTER AND SERVANT ($ 258*)-INJURIES use of care and caution. Much of what is TO SERVANT-DEFECTIVE MACHINERY-PETIsaid in considering instruction No. 4 is appli

TION-GENERAL CHARGE OF NEGLIGENCE. cable here. The natural result of that in- employ, was injured while planing a plank by

Where plaintiff, a carpenter in defendant's struction was to confuse and mislead the the alleged depression of the back table of the jury; hence the order for a new trial may planer, a petition alleging that defendant so stand on the error of giving it.

negligently constructed and maintained the ma

chine and the appliances supporting the back [5] (d) Speaking to defendant's instruction table that, while plaintiff was planing the plank, No. 7, we say this: Plaintiff in his own quot- the back table suddenly and without warning, ed instruction put to the jury the issue of his because of its negligent construction and maindue care. In that view of it we need not seek lose control of the plank, and his right hand

tenance, dropped down and caused plaintiff to for any real ground upon which to put the to fall against the knives, constituted a suffiissue of contributory negligence to the jury cient allegation of negligence, and it was thereas an affirmative defense, for by invoking the fore not error for the court to deny defendant's

motion to compel plaintiff to make his petition judgment of the jury on his due care he there

more definite and certain by showing in what by invoked their judgment on his lack of it, way and manner defendant was negligent in the and that, in turn, spells contributory negli. construction and maintenance of the machine,

etc.; the details necessary to supply the inforgence.

mation desired being obtainable only from de[6] But we do not approve the form of that fendant. instruction. We eye it askance as a daring [Ed. Note. For other cases, see Master and and anxious novelty that disturbs more than Servant, Cent. Dig. $8 816-836; Dec. Dig. 8

258.*] it benefits. It would have been better to

2. APPEAL AND ERROR ($ 870*) REVIEW have said that plaintiff was required to use

PLEADING DEFINITENESS MOTION due care in doing his work and then gone on

DENIAL-APPEAL FROM ORDER. and defined, in the accepted language of the An order denying a motion to compel plainlaw, what due care was, instead of using the tiff to make his petition more definite and cer

tain is the law of the case until set aside by formidable words: "Was bound to use his the trial court or reversed on appeal from a

and intelligence and experience." final judgment, and is not reviewable on appeal What does that sweeping and sounding aggre- from an order taking off a nonsuit and grant

ing plaintiff a new trial. gation of words mean, even to a lawyer or

[Ed. Note.-For other cases, see Appeal and judge? They swell by contemplation and Error, Cent. Dig. 88 3451, 3487–3489, 3491broaden by analysis. What did the plain / 3512; Dec. Dig. § 870.*]

Senses

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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