thus, as in other doctrines, the opinions of different judges are found to be irreconcilable, and each gives reasons for his views, stronger to him, than the opposing argument of the adverse decision.

§ 393. Same Master acting as workman. The law, however, which exempts a master from liability for injuries resulting from the negligence of fellow-servants, does not relieve a master from liability, who himself takes part in the servant's work and while so engaged, injures him from his own neglect,1 for this would permit him to do indirectly what he cannot do directly, i. e., escape from the result of his own wrongful act. Accordingly, a master who injures an employee while engaged as a laborer can be made to respond in damages for the injury, and if he is a member of a partnership by which the injured man is employed, and the work he has engaged in is within the scope of the firm's business, the firm could be held responsible for the injury resulting from the negligence of one of its members. And the rule is the same as to the liability of the owner or master for the result of his negligence while he is engaged as manager or superintendent of his own mining operations, and for all injuries that can be approximately traced to his negligence while so acting, he is responsible.* And a master is ordinarily liable for all acts resulting from his personal interference and negligence where he

10 Mor. Min. Rep. 11.

Foreman is held by U. S. Supreme Court to be a fellow-servant, if he works with the employees. Alaska Gold Min. Co. v. Whelan, 168 U. S. 85.

1 Ashworth v. Stanwix et al., 3 E. & E. 701; 9 Mor. Min. Rep. 674; s. c. 34 L. J. Q. B. 183; M. M. D. 223.

2 Ante, idem A clear and able opinion.

3 Douty v. Bird, 60 Pa. St. 48; Moreton v. Harden, 4 B. & C. 223; Ashworth v. Stanwix, supra.

4 Mellors v. Shaw et al., 1 B. & S. 437; 9 M. M. R. 678; Hall v. Johnson, 9 Mor. Min. Rep. 684; 34 L. J. Ex. 222.

engages in work or is guilty of negligence in the selection of employees. But a manager, steward or agent, who has no interest in the master's business as such, is not ordinarily liable for damage done by the negligence of those employed by him in the service of his principal, but only the principal and those guilty of the wrongful act are liable.2

§ 394. Acts of independent contractor. A mining company is not generally responsible for injuries resulting from the negligence of independent contractors, who are not in the immediate employment of such company, and the same rule applies whether the negligence results from defective machinery, unskillful servants or otherwise, so long as the injury results from some act, or a failure to act, upon the part of the contractor. In order to charge one person for an injury resulting from the tort of another, it is necessary to show some connection between the two; that the person sought to be charged was the employer, or that the party occasioning the injury was subject to immediate direction and control of such person, and no liability could result where the party occasioning the injury was exercising an independent business of his own. But if the mining company could be considered as the employers of the party in charge of the mine and the parties in charge as representing them in such capacity,

1 Roberts v. Smith, 2 H. & N. 213; Priestly v. Fowler, 3 M. & W. 1. 2 Stone v. Cartwright, 9 Mor. Min. Rep. 672; Stockbridge Co. v. Cone Iron Works, 6 Mor. Min. Rep. 317; 102 Mass. 80; Wright v. Compton, 2 M. M. R. 189; 53 Ind. 337.

3 Harrison v. Kiser, 79 Ga. 588; Miller v. Minn. &c. Co., 76 Iowa, 655; Gas Co. v. Waters, 123 Pa. 220.

So an employee, in a shaft under the construction of independent contractors, could not recover from the mine owners for au injury resulting from the breaking of a rope, or other unsafe appliances. Leudberg v. Brotherton Iron Min. Co., 75 Mich. 84; 42 N. W. Rep. 675.

there is no doubt but what such company could be held responsible for injuries resulting from the negligence of the party in charge. And if the injury results from the negligence of one occupying the position of foreman of the mine, the company could not escape liability, either on the theory that he was an independent contractor, or that he was the fellow-servant of the injured employee, for the negligence of such employee would be considered the negligence of the company. And even though the relation of master and servant was not clearly shown to exist, between the company and the party in charge of the mine, if full knowledge of the negligence of the party in charge, which was the approximate cause of the injury, could be brought home to the company, it is very doubtful if the law would not hold them for the consequences of such negligence.3

§ 395. Owner should furnish means of ingress and egress. It is one of the fundamental duties incumbent upon the mine owner to furnish suitable and safe means of

1 Chicago, B. & Q. R. Co. v. Clark, 42 N. W. Rep. 703; Woodman v. Metropolitan &c. Co., 149 Mass. 335; Montgomery Gas Co. v. Montgomery & E. Ry. Co., 86 Ala. 372; 5 So. Rep. 735.

2 Kelly v. Cable Company, 7 Mont. 70; 14 Pac. Rep. 633. And an owner who has engaged another to open his mine, reserving the right to furnish machinery, would be liable to an employee for an injury from a failure to furnish safe machinery, nothwithstanding the independent contract. Fell v. Coal Min. Co., 23 Mo. App. 216.

3 Chartiers Valley Gas Co. v. Waters, 19 Pitts. Leg. J. (N. 8.) 235; 23 W. N. C. 175; 16 Atl. Rep. 423; 23 Pac. Rep. 220; 46 Phil. Leg. Int. 169. And so if the work or the premises were so dangerous as to amount to a nuisance (Crenshaw v. Ullman, 113 Mo. 633), or if the contractor is known to be irresponsible, incompetent or negligent (Brannock v. Ellmore, 114 Mo. 55). If the owner personally interferes (Long v. Moon, 107 Mo. 334), or retains a supervision of and furnishes the means for accomplishing the work; -in all these cases the owner is liable, and the rule as to independent contractors does not apply. Burns v. McDonald, 57 Mo. App. 599; Roddy v. Mo. Pac., 104 Mo. 234.

ingress and egress for those whom he has employed to labor in his mine. The statutes of many of the mining States provide for the kind of machinery to be used and the manner in which the different mining operations shall be conducted, and as these statutes are usually mandatory, the mine owners are generally responsible for any injury which an employee may receive when there has not been a strict or substantial compliance with the provisions of the statute governing that particular kind and character of mining operations. In an action under such a statute, for an injury to an employee by reason of the neglect of the mine owner or operator, the question to be determined is whether the requirements of the statute have been complied with and, if not, whether the injury complained of was occasioned by the failure of the owner to comply with the provisions. of the statute. If the negligence of the owner is the approximate cause of the injury complained of, while the statute does not exempt an employee from the direct and immediate consequences of his own carelessness, the mine owner would generally be held responsible for the injury. But where the statute provides for the secu

1 Cambria Iron Co. v. Schaffer (Pa.), 6 Cent. 608; Blanchard & Weeks Ld. Cas., p. 632, and cases cited.

2 See statutes different States, Vol. II.; R. S. Mo. 1899; Laws Mo. 1901, p. 211.

3 Spiva v. Osage Coal & Mining Company, 88 Mo. 68; Blan. & Weeks Ld. Cas., p. 633, citing Civil Code California. "Master who lets the workman down his mine is bound to bring him up safely, even though he come up on his own business, and not for that of his master." Brydon v. Stewart, 2 Macqueen Sc. App. 30; M. M. D. 243.

4 Blanchard & Weeks, p. 633 and cases cited; Finalyson v. Utica Min. & M. Co., 67 Fed. Rep. 507; Adams v. Mining Co., 85 Mo. App. 486.

5 Caldwell v. Brown, 53 Pa. St. 453; Smith on Master & Servant, 134; L tchfield Coal Co. v. Taylor, 81 Ill. 590; Durant v. Lexington Coal Co. 97 Mo. 62; Harris Dam. by Cor., § 988, p. 1140. As to duty to maintain

rity and safety of mine employees, by requiring the employment of a practical and skilled inside overseer or "mining boss," if the mine owner has complied fully with the provisions of the statute, he will not be liable in damages to an employee for an injury caused by the negligence of the overseer of the mine, for the injury could not be attributed proximately to the negligence of the mine owner, and where he had complied fully with the provisions of the statute, he would not, in law, be deemed guilty of any negligence.1

§ 396. Duty as regards place of working. The employer is also liable to the employee for an injury resulting from the dangerous nature of the place where the employee is at work, and the employer cannot relieve himself from the liability resulting from such an injury, by delegating to another the duty which the law places on him of providing a safe place. The employer has been held liable for an injury caused from falling earth, where the defective condition of the ground was known to him; for an injury from a cave-in, caused by a failure to timber

3

safe means of ingress and egress, see Wesley Coal Co. v. Healer, 84 Ill. 126; Hamilton v. State, 102 Ill. 367; Chicago Coal Co. v. People, 181 Ill. 270; Haddock v. Com., 103 Pa. St. 243; McDonald v. Rockhill Co., 135 Pa. St. 1; 20 Am. & Eng. Enc. Law, pp. 58, 59.

1 Waddell v. Simoson (Pa.), 3 Cent. 176. But, contra, see Fell v. Coal Min. Co., 23 Mo. App. 216. And see, also, Berea Stone Co. v. Kraft, 10 Mor. Min. Rep. 16; Ryan v. Bagley, 50 Mich. 179; Little Miami Co. v. Stevens, 20 Ohio, 415. A statute which requires the owner of a mine to employ a "fire boss," to prevent injury from accumulated gas, does not preclude a recovery for the negligence of such "boss so employed. Schmalstieg v. Coal Co. (Kan. 1903), 59 L. R. A. 707; Kless v. Coal Co. (Pa. 1902), 18 Pa. Sup. Ct. 551.

2 Consolidated Coal Co. v. Mombacker, 134 Ill. 57; Trihay v. Brooklyn Co., 15 Mor. M. R. 535; Hammou v. Coal Co., 156 Mo. 232.

3 Strahlendorf v. Rosenthal, 30 Wis. 674; Harris Dam. by Cor., § 987, p. 1138; Adams v. Min. Co., 85 Mo. App. 486.