gerousness of giant powder, as an agency, if the employer permits an employee to use it, who is not acquainted with the proper mode of using it, or the attendant risk, and an injury results from an explosion, the employer is liable.1 And the employer would also be liable to an employee for an injury from an explosion, resulting from following the directions of a superintendent, or one representing the employer in giving such directions.2 But where an explosion occurs as a result of the negligence of one who could be termed a fellow-servant, the general rule of non-liability on the part of the master would apply and no recovery could be had for such an injury,3 any more than if the injury had occurred as a result of the negligence of the employee himself.

1 Smith v. Oxford, 2 M. M. R. 208.

2 Camden v. Belleville Stone Co., 1 Am. Neg. Rep. 117; McMahon v. Ida Min. Co., 1 Idem, 741. "Where, in an action brought against a corporation by one of its laborers employed in blasting, for an injury occasioned by the premature discharge of a blast (while tamping) loaded with newly invented powder (name not given, but described as liable to explode from percussion), which he was directed to use by the defendant's foreman or superintendent, the complaint alleged that the company furnished the powder for use in its ordinary and appropriate business; that its superintendent directed its use, by the plaintiff, in such business; that it had never been used as an explosive in blasting, and was, in fact, unfit and unsafe for such use, and that the plaintiff was ignorant of its dangerous properties: Held, on demurrer, that a right of action was unquestionably stated." Spelman v. Fisher Iron Co., 56 Barb. (N. Y.) 151; M. M. D. 22. Master held liable for injury to employee, from drilling into unexploded blast, which foreman had failed to notify him of. Anderson v. Daly Min. Co. (Utah), 2 Amer Neg. Rep. 659. But see Vitto v. Farley (N. Y ), 2 Amer. Neg. Rep. 47, where, on similar state of facts, master is held not liable, on the facts stated, because foreman is a fellow-servant. The Wisconsin courts, however,

hold with Utah on this question. McMahon v. Mining Co. (Wis.), 1 Amer. Neg. Rep. 741.

3 Vitto v. Farley, 2 Amer. Neg. Rep. 47. No recovery for explosives due to foreman's negligence, as he is a fellow-servant. Wiskie v. Monticello Granite Co. (Wis.), 10 Amer. Neg. Rep. 634.

4 Where explosion occurred by removal of tamping, by employee.

§ 461. Injury from steam explosion. Steam is another dangerous and powerful agency about the use of which the master is bound to advise inexperienced servants, and for injuries resulting from a neglect of this duty,

Allard v. Hildreth (Mass.), 5 Amer. Neg. Rep. 610. Where employee is experienced in mining operations and there is no reason why the employer should believe him ignorant of the work and its dangers, he need not notify him of the dangers of giant powder, as he would assume risks from premature explosions. King v. Morgan (U. S. C. C. App.), 8 Am. Neg. Rep. 613; Tuttle v. R. R. Co., 122 U. S. 189; Hill v. Merrit Co., 140 Mo. 433; Cochran v. Shanahan (W. Va), 41 S. E. 140; Nielson v. Brownstone Co., 69 Pac. Rep. 289. But see Chambers v. Chester, where plaintiff alleged that he was injured by an explosion in the mine, caused by defendant carelessly and negligently, without warning, furnishing him with giant powder containing forty per cent of nitro-glycerine, instead of twenty-seven per cent, which he had been accustomed to use. There was a verdict for plaintiff for $5,000, from which defendants appeal. Sustained. (Sup. Ct. Mo., Dec. 1902.) 72 S. W. Rep. 93. In an injury from an exploded blast, resulting from a failure of the hoister to work, the case is properly left to the jury, although plaintiff had knowledge that a chain ladder was not in place before firing the shots, as the question of contributory negligence in this regard was also properly submitted. Alaska United Gold Min. Co. v. Muset, 114 Fed. Rep. 66. See also Orman v. Salvo, 117 Fed. Rep. 233. A new employee who is injured from explosion by drilling into unexploded shots, of which he had no knowledge, is not barred from a recovery, because the superintendent did not know of the shots, but it is a question of fact, if, under all the circumstances, he should have known it. Robinson Min. Co v. Tolbert (Ala. 1901), 31 So. Rep. 519. But see So. Ind. Co. v. Moore, 63 N. E. 863. One injured from unexploded shot, by using a steel tamping bar, when master provided an iron one to use, where master had no knowledge of shot, cannot recover. Lanza v. LeGrand Quarry Co. (Iowa, 1902), 88 N. W. Rep. 805. "Where the servant is mature, intelligent and experienced in the work, and the master has no notice or reason to believe he is not fully competent and familiar with the work and its attendant dangers, he is under no obligation to instruct such servant as to the probable dangers of his employment, and after having accepted such employment with knowlege of the character and quality of the instrument furnished for use and of the dangers of the employment, such servant cannot assert that he did not know the dangers. Where plaintiff, employed in defendant's mine, and engaged in blast

there is a corresponding liability 1 The master would also be liable for an injury from an explosion resulting from the use of defective material, if he had himself superintended the construction of the appliance, or failed to employ a competent machinist so to do." And he would also be responsible for an injury resulting from escaping steam, due to a defect in the pipe, where no proper or regular inspections could be shown.3 But the mere fact of an injury from escaping steam would be insufficient to predicate a recovery, without evidence of some defect or injury to the machinery, or appliances containing the steam, and to avoid liability for such an injury the employer would not be bound to establish that he had employed the safest appliance for the purpose, but such only as was customarily

ing rock, using a machine drill and dynamite for the purpose, was injured by the premature explosion of a charge which he was tamping into a hole drilled to receive it, and was using a tamping bar furnished by defendant, constructed of a piece of iron gas pipe, the end being plugged with wood or clay, and such tools were largely used in other mines, as were also bars of wood and of solid iron, and there was some evidence to show that wooden bars were less dangerous, and where it appeared that plaintiff was twenty-four years of age, was intelligent, and had been employed several months by defendant, and had also been engaged over two years at the same work in other mines, and had, while employed by defendant, used the same kind of tool without objection or accident, and that he knew the dangerous properties of dynamite, and that it was liable to explode by concussion, it was held that he assumed the risks incident to using such tool." King et al v. Morgan (United States Circuit Court of Appeals, Eighth Circuit, May, 1901), 10 Amer. Neg. Rep. 200.

1 Turner v. Tunnel Co., 1 Am. Neg. Rep. 270.

2 Ardesco Oil Co. v. Gilson, 10 M. M. R. 669.

3 Russell v. Consolidated Co. (Cal.), 2 Amer. Neg. Rep. 299.

4 Voight v. Car. Co. (Mich.), 2 Amer. Neg. Rep. 725. One who operates a steam boiler on his premises without negligence, is not legally liable to his neighbors for an explosion, as there is no corre sponding duty. Veith v. Hope Salt & Coal Co. (W. Va. 1902), 41 S. E. Rep. 187.

employed in the same business, by reasonably prudent persons, and if the explosion occurred by reason of a fellow-servant, there would be no liability."

§ 462. Bad air or gas.

It has been held that the duty to warn the servant of the dangers incident to mining included the obligation to advise those unacquainted, with the fact that the mine contained impure or poisonous air, and for a failure to discharge the duty the master was liable. Proper ventilation and means of circulating pure and wholesome air should be provided and although the means may be provided, if there is a failure to furnish pure air in a given case, damages would lie for such injury.4 However, the owner would not be liable for a failure to keep the mine absolutely free from gas, or impure air,5 but the duty devolved upon him would be to introduce pure air, as fast as the gas formed, so that by dilution, it would be expelled, or rendered harmless, and not permit it to accumulate as standing gas.

1 Innes v. Milwaukee (Wis.), 2 Amer. Neg. Rep. 782.

to

Meeker v. Remington

2 A case where superintendent, making test, permitted steam escape, and it was held he was a fellow-servant. Co. (N. Y.), 8 Amer. Neg. Rep. 314.

3 Turner v. Tunnel Co, 1 Amer. Neg. Rep. 270. "Employer must warn employee, or be liable for dangers known only to him." Strah endorf v. Rosenthal, 10 M. M. R. 676. But see, contra, Consolidated Co. v. Scheeler, 42 Ill. App. 619.

4 Commonwealth v. Hutchinson (Pa.), 4 C. C. R. 18. For injuries from accumulated gases, see Muddy Valley Co. v. Phillips, 39 Ill. App. 376; Hughes v. Imp. Co., 20 Wash. 294; Cerillos Coal &c. Co. v. Deserant, 9 N. Mex. 49; Godfrey v. Beattyville Co., 101 Ky. 339; Mosgrove v. Zimbelman Coal Co., 110 Iowa, 169; 20 Am. & Eng. Enc. Law (2 Ed ) 58. Courts will take judical notice that coal mines generate gas. Poor v. Watson, 92 Mo. App. 89.

5 Commonwealth v. Tompkins (Pa.), 1 L. L. R. 341; s. c. 4 Legal Gaz. 238.

6 Ante, idem. "Working after warning is such contributory negli gence as to prevent recovery." Lehigh Valley Co. v. Jones, 10 M. M. R.

§ 463. Failure to furnish props. Independently of statute it would be negligence on the part of a mine owner to fail or refuse to furnish sufficient props or timbers to protect employees from injuries resulting from falling

30. And see Cerrillos v. Deserant (N. M.), 4 Amer. Neg. Rep. 87. There is no liability for an explosion from gas, in an unused part of the mine to which miner had gone, with lamp, as the failure to inspect that part of the mine, if such duty existed, was negligence of the foreman, a fellow-servant with deceased miner. Grant v. Arcadia Coal Co., 34 N. S. 319. No recovery can be had for death of employee from explosion, caused by pit boss taking light into pit where there was accumulated gas, as he was fellow-servant. Deserant v. Cerrillos

Coal &c. Co. (N. M. 1901), 5 Amer. Neg. Rep. 206. The United States statute (Sec. 6, Act March 3, 1891; 26 Stat. at L. 1104), makes it the duty of all mine owners in mines over 100 feet, to furnish not less than 55 cubic feet of pure air per second, for every fifty men at work, which shall be forced to the face of each working place, so as to expel noxious gases. The duty of the mine owner, under this act, is a positive one and an instruction which predicates the duty upon what a reasonable man would do, rather than what the act commands, is erroneous. Deserant v. Cerillos Coal &c. Co., 178 U. S. 409; 44 L. Ed. 1127. And for similar holdings, upon statutes of different States, see Graham v. Newburg Co., 38 W. Va. 273; 18 S. E. Rep. 584; Mosgrove v. Coal Co. (Iowa), 81 N. W. Rep. 227; Muddy Valley Co. v. Phillipps, 39 Ill. App. 376; Hall v. Hopwood (Eng.), 15 M. M. R. 42; 49 L. J. Mag. Cas. 17; Summer v. Carbon Hill Co. (Wash.), 89 Fed. Rep. 54. But a compliance with the statute and employment of competent "fire boss" relieves the mine owner of further liability. Delaware &c. Co. v. Carroll, 89 Pa. St. 874; Redstone Co. v. Roddy, 115 Pa. 364; 8 Atl. Rep. 593. The duty is only to provide ventilation for the "mine" being worked and not as to abandoned portions. Coal Co. v. Jones, 127 Ill. 379; 20 N. E. Rep. 89; Welsh v. Lehigh &c. Coal Co. (Pa.), 3 Cent. Rep. 386. The failure to comply with the statute must have been the approximate cause of the injury. Coal Run Co. v. Jones, 127 Ill. 379; 20 N. E. Rep. 89. And contributory negligence will defeat a recovery, notwithstanding a violation of the statute. Krause v. Morgan, 53 Ohio St. 26; 40 N. E. Rep.. 886. "Mines generating gas," includes all mines generating noxious gases and vapors, whether explosive or not. Poor v. Watson, 92 Mo. App. 89; Coal Co. v. Wilson, 47 Kansas, 460. And negligence of "fire boss" renders master liable. Schmalstieg v. Leavenworth Coal Co. (Kan.), 59 L. R. A. 707. But the most expensive precautions against "fire damp" need not be employed, but only such as are customarily used. Berns v. Coal Co, 27 W. Va. 285.