§ 451. Same-Dangerous roof, from negligence.— But while the law furnishes no remedy for injuries from natural forces, or where the servant knows of the danger, or by the exercise of reasonable care could have known and avoided the same,1 this rule does not exempt the master from liability for injuries which, by reasonable care and prudence on his part, could have been avoided; 2 and where the master places the duty of keeping the roof or walls of the mine in a safe condition upon a superintendent or vice-principal, who has the miners under his control, since their safety depends entirely upon his vigilance, and the proper discharge of his duty and in the discharge of same he is the representative

1 Shear. & Redf. Neg. (5 Ed.), 211, 212; Doyle v. Trust Co., 140 Mo. 1. 2 Bunker Hill Mining Co. v. Schnelling, 1 Amer. Neg. Rep. 782; Ashland Coal Co. v. Wallace (Ky.), 4 Amer. Neg. Rep. 88. "Where an employee of a mining company was killed by the falling of rock from the roof of a common gangway in a coal mine, and it was sought to charge the company with negligence, it was held, that notice to the mining superintendent of the dangerous condition of the roof was notice to the company, and if this were long enough before the accident to have given time to repair the same, it was sufficient to fix negligence upon the company." Quincy Coal Co. v. Hood, 77 Ill. 69; M. M. D.

243. Where foreman knows that roof needed propping, jury will be justified in finding mine operator guilty of negligence. Coal Valley Min. Co. v. Haywood, 98 Ill. App. 258; Con. Coal Co. v. Lundak, 196 Ill. 594. Posting a notice that all employees in the employer's mine assume injury from falling scales and roof, does not constitute such a contract between employer and employee as to relieve the former from his duty to furnish a reasonably safe place. Con. Coal Co. v. Lundak, 97 Ill. App. 109; 196 Ill. 594. Where mining boss has knowledge of defective roof and fails to repair, an injury to an employee therefrom, will generally render employer liable. Mining Co. v. Schnelling (U. S. C. C.), 1 Amer. Neg. Rep. 782. And where foreman has knowledge of defective roof and miner is without knowledge, a resulting injury can be predicated upon this neglect of the master. Harder &c. Coal Co. v. Schmidt (U. S. C. C. App.), 9 Amer. Neg. Rep. 227. An injury from a roof, made defective by blasting, where mine boss has knowledge, or by reasonable care, could have known of defect, renders master liable. Wellston Coal Co. v. Smith (Ohio), 10 Amer. Neg. Rep. 445.

of the master, he will be held liable for any injury from the defective condition of the roof, or walls, resulting from the negligence of himself or his representative.1 And mere knowledge by the employee that the roof is unsafe, to the extent that risk is incurred in working under it, if the danger is not such as to threaten immediate injury, but it is reasonable to suppose it safe to continue the work, with proper care, will not, as a matter of law, defeat the action.2 However, if the injury occur at a place where it was the duty of the injured party, or his fellow-servants, to keep the roof safe, no action will lie, for the injury is an assumed risk; and the rule is the same if the duty and breach was that of a "pit boss," who, in law, would be considered a fellow-servant.4

3

1 Wellston Coal Co. v. Smith (Ohio), 10 Am. Neg. Rep. 445; Fisher v. Cent. Lead Co., 156 Mo. 479.

2 Hamman v. Cent. Coal Co., 156 Mo. 234; Smith v. Coal Co., 75 Mo. App. 177; Hamilton v. Min. Cɔ., 108 Mɔ. 364, a flexible doctrine.

3 Mining Co. v. Clay, 51 Ohio St. 542; 38 N. E. 610. For a well considered case, where there was shown to be no necessity for inspection or props for roof, and an injury, resulting in death, from falling rock from roof, was held not actionable, see Judge Bland's opinion in Beomer v. Lead Co., 69 Mo. App. 601.

4 Tranghear v. Coal Co., 62 Iowa, 576; 17 N. W. 775; Whalen v. Alaska-Treadwell Gold Min. Co., 168 U. S. 85; Delaware Co. v. Carroll, 10 M. M. R. 47; Lehigh Valley Co. v. Jones, 10 Id. 30. "The plaintiff,

a workman in the coal mine of the defendants, received damage from the fall of a stone from the roof of the mine, which had lost its support by reason of the removal of the coal below in the ordinary course of working the mine. The defendants' underlooker, whose duty it was to superintend the mining operations, had negligently, though the danger had been pointed out to him, omitted to prop up the roof. The removal of the coal and the propping up of the roof ought, in the exercise of due and reasonable care, to be nearly contemporaneous operations: Held, that as there was no evidence that the defendants had not exercised due care in the selection of their underlooker, nor in putting the mine into a proper condition before the miners were sent into it, they were not answerable for the injury caused to the plaintiff by the negligence of the underlooker, his fellow-laborer." Hall v. Johnson, 34 L. J. Ex. 222; 3 II. & C. 589; Mor. Min. Dig. 243.

§ 452. Assumed risks What are - Accidents. The ordinary risks assumed by the servant, upon entering the employment, are all such as, arising out of the nature of the work, would have happened notwithstanding the exercise of proper care. An accident, which an experienced man in that branch of the business could not have foreseen or guarded against, is a hazard incident to the business, which every man engaged in it assumes.2

1 Any injury from an open, obvious danger, which could have been observed, is an assumed risk, from which no recovery can be had. Lanyon Zinc Co. v. Bell (Kan. 1902), 68 Pac. Rep. 609. Where miner uses cage instead of ladder, in violation of rule, company not liable. Anderson v. Mikado Min. Co. (1902), 3 Ont. Law Rep. 581; Kielly v. Belcher Co., 10 M. M. R. 3; Strahlendorf v. Rosenthal, 10 M. M. R. 676.

2 Beasley v. Transfer Co., 148 Mo. 413; Corcoran v. Sess. 168 N. Y. 372; Buswell Per Inj. 111 and note. For miscellaneous cases, where miner was held to assume the risk, see Ala. Min. Co. v. Marcus, 115 Ala. 389; Dougherty v. Iron Co., 88 Wis. 343; Beeson v. Min. Co., 57 Cal. 20; Mud. Val. Min. Co. v. Parish, 74 Ill. App. 559; Quincy Min. Co. v. Kitts, 42 Mich. 34; Coal Cr. Min. Co. v. Davis, 90 Tenn. 711; Diehl v. Lehigh Iron Co., 140 Pa. St. 487; Moore Lime Co. v. Richardson, 95 Va. 326; Bertha Zinc Co. v. Martin, 93 Va. 791; 20 Am. & Eng. Enc. Law (2 Ed.), pp. 110 and 111. Servant who selects the more dangerous of the two ways to perform his service cannot recover. Acme Coal Min. Co. v. McIlver, 5 Colo. App. 267; Moore v. K. C. F. S. & M. Co., 146 Mo. 572. "In an action to recover damages for injuries sustained by plaintiff, while in defendant's employ, caused by blasting in defendant's quarry, there was evidence that plaintiff attempted to clean out a blasting hole with an iron scraper, and, being unable to do so, inserted a steel tamping bar, which struck a concealed and unexploded charge of dynamite, which exploded, causing the injury complained of; that defendant had worked the quarry for twenty-five years; that one of its positive requirements of its quarrymen was that no unexploded charge of any kind be left in the rock; that the hole in question had been charged and blown out three times before the accident happened, the last time being two weeks previous, the charge being entirely exploded or blown out; that when a hole was charged for blasting it was filled to the top, or nearly so, with sand or some other substance placed on top of the charge. Held, that, as a matter of law, defendant was not guilty of negligence. Lanza v. LeGrande Quarry Company (Supreme Court, Iowa, January, 1902), 11 Amer. Neg. Rep. 209.

§ 453. Same. Negligence of fellow-servant - No liability. Among the ordinary risks included as arising from the nature of the work are those also arising from the negligence of competent fellow-servants, engaged in the same common undertaking as the injured person, and for such injury there is no liability on the part of the master.1 But where the negligence is that of a partner, even though he may be acting as a fellow-servant, if his duties are within the express or implied scope of the firm business, all of the partners would be liable." Nor is the master relieved from liability for the negligent act of a known incompetent servant,3 for he is under the legal duty to furnish reasonably competent workmen, as well as to furnish a reasonably safe place and safe machinery and appliances, and for a failure to do so is chargeable with actionable negligence.4

1 Kielly v. Belcher Co., 10 M. M. R. 11; Ardesco Co. v. Gilson, 10 M. M. R. 669; Bryden v. Stewart, 3 Macq. 30; Griffiths v. Gidlow, 3 H. & N. 648; Senior v. Ward, 1 E. & E. 385; Ashworth v. Stanwix, 3 E. & E. 701; Mellors v. Shaw, 1 B. & S. 437; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Rourk v. White &c. Co., 1 C. P. D. 556. Rule changed in England by Employers Liability Act. (43 & 44 Vict., C. 42).

2 Ashworth v. Stanwix, supra; Mellors v. Shaw, 1 B. & S. 437; Id. 9 M. M. R. 678.

3 The master's knowledge and the competency of an engineer, a question of fact for the jury. Jack v. Donkwordt, 10 M. M. R. 690; McLean v. Bluepoint Co., 10 M. M. R. 22.

4 Where there is evidence that a servant was incompetent, case should go to jury. Handley v. Daly Mining Co. (Utah), 3 Amer. Neg. Rep. 295. "Where several persons are employed in a mine, some breaking down the ore with picks and by blasting, and others at the same time loading and wheeling out the ore so broken down, those engaged in breaking the ore and those engaged in loading and wheeling it out, are fellow-servants in the same line of employment within the rule that they take the risks arising out of the negligence of their coemployees " Kielly v. Belcher S. M. C., 3 Sawyer, 500; see s. c., p. 437; M. M. D. 244. Under statute requiring examination of mine before each shift of men go on, the superintendent cannot delegate the

The United States

§ 454. Who are fellow-servants Supreme Court has recently held that all are fellow-servants in a mine, who are engaged to effect the same common object, regardless of the superiority or inferiority of the service.1 Many of the mining States have announced the same general rule. ance with the common law rule, as a hoisterman,3 underlooker, and superintendent,5 whether appointed by the masster, or under the statute," are all held to be fellowservants at common law. But some of the mining States

And this is in accord

duty of making the inspection to a foreman. Kless v. Youghiegheny Mining Co., 18 Pa. Sup. Ct. 551. Those whose duty it is to keep safe roof are not fellow-servants with miner. Cushman v. Fuel Co., 88 N. W. 817. A fireman at engine and steam drill helper are not fellowservants. Heldmaier v. Cobb, 96 Ill. App. 315; 62 N. E. Rep. 853.

1 But see, contra, Alaska United Gold Min. Co. v. Muset (U. S. C. C. of App., Ninth Circuit), 114 Fed. Rep 66. A mine superintendent with power to discharge men, was held to be a fellow-servant. Whalen v. Alaska-Treadwell Gold Min. Co., 168 U. S. 85-88.

2 Kielly v. Belcher Co., 10 M. M. R. 11; Ardesco Co. v. Gilson, 10 M. M. R. 669. "It gives no effect to the circumstances that the fellowservant, through whose negligence the injury came, was the superior of the plaintiff, in the general service in which they were in common engaged. Michigan v. Blue Point Company (Cal.), 10 M. M. R. 22. Overseer and workmen fellow-servants. Lehigh Valley Co. v. Jones, 10 M. M. R. 30. "Mining-boss " and "driving-boss." Idem. And "mining-boss" and miner. Delaware Co. v. Carroll, 10 M. M. R. 47; Colorado C. & I. Co. v. Lamb, 6 Colo. App. 255.

3 Bartonshill Coal Co. v. Reid, 3 Macq. 266.

4 Hall v. Johnson, 3 H. & C. 589.

5 Wilson v. Merry, L. R. 1 L. C. & D. 326.

6 Ante, idem.

Howells v. Lindon Co., L. R. 10 Q. B. 62.

8 Ante, idem. Parties jointly engaged in drilling holes for blasts are fellow-servants. Johnson v. Portland Stone Co. (Oregon, 1902), 67 Pac. Rep. 1013. A mining boss, in Ohio, is held not a fellow-servant, but vice-principal, for whose negligence master is liable. Wellston Coal Co. v. Smith (June, 1901), 10 Amer. Neg. Rep. 445. But employees off duty and asleep are not fellow-servants. Oman v. Salvo, 117 Fed. Rep.