ing the chutes clear of coal; as to timbering or fixing the bulkheads for the purpose of keeping rocks from falling through the chutes; in relation to repairing defects when complained of; as to whether or not, when chutes become clogged or blocked, it is extrahazardous to start or unblock them; and as to whether there was general complaint among the miners of insufficiency of timbers,-are competent on the question of the incompetency of the pit boss.

6. Plaintiff should be permitted to show that the pit boss did not perform his duty to see that the coal in the chutes was removed and the travel ways cleared; in timbering the chutes and crosscuts, and placing and repairing bulkheads to keep rocks from falling through the chutes and crosscuts; that miners who made complaint of such neglect were instantly discharged: that he employed ignorant and inexperienced men, and set them at hazardous work, telling them there was no danger; that there was general complaint in the mine that the men could not get sufficient props and timbers for their protection; and also that the mine owner could by reasonable care have known of the incompetency of the pit boss and of his want of proper supervision over the workmen and mine; also the general reputation of the pit boss for competency and regard for the lives and limbs of the miners under his charge.

7. In an action by a miner to recover for injuries resulting from falling rocks, evidence of specific acts of incompetency of the pit boss, and that he did not have regard for the lives of men under his charge, is admissible under a general allegation that he was ignorant and incompetent.

Appeal from superior court, Pierce county; W. O. Chapman, Judge.

Action by Andrew Green against the Western American Company. From a judg ment for defendant, plaintiff appeals. Reversed.

Govnor Teats, for appellant. Fogg & Fogg, for respondent.

WHITE, J. This is an action for personal injury, brought by Andrew Green, a coal miner, against the Western American Company, owner and operator of the Fairfax mines, Pierce county, Wash. Nonsuit was granted by the court below, and the plaintiff appeals.

There were two general elements of negligence charged in the complaint,-the employment of an incompetent pit boss, and the neglect of the defendant to furnish the plaintiff with timbers to properly timber his working place, as provided by section 3178, Ballinger's Codes & St. The second amended complaint, charging negligence, is as follows: "That some time prior to the 18th day of September, 1900, the defendant employed the plaintiff to mine coal in its mines at Fairfax. After his employment, plaintiff set to work driving a crosscut in said mine, which crosscut was to be driven between two chutes for a distance of about 70 feet. That on or about the

day of

plaintiff had driven the said crosscut at a distance of about 25 feet, and then and there requested of the pit boss, John Wilson, for timbers to properly prop the same, and quit work because of the lack of timbers to properly timber the said crosscuts so mined by

plaintiff. That thereafter the said pit boss caused to be furnished to plaintiff timbers to properly timber and prop said chute for about 20 feet, and the plaintiff proceeded to work, and drove the said crosscut further on towards the chute on the opposite side of the pillar. That, after driving the same a distance of about 18 feet, it became necessary to timber and prop the said crosscut so as to protect plaintiff from falling coal and rock, and there and then requested the pit boss, Wilson, to furnish him with timbers to be used as props to properly secure the workings from caving in; and plaintiff alleges that there was at that time no timbers, or any supply of timbers, in said mines to supply the plaintiff at the entrance of his working place, or at any place where plaintiff could obtain the same, as is required by the laws of the state of Washington. The said Wilson then and there requested the plaintiff to proceed to his working place, stating to the plaintiff that the same was safe, and did not need and require timbers to prop, and requested the plaintiff to continue driving the crosscut until it reached the chute on the other side of the pillar, when the defendant would furnish the plaintiff with timber to properly timber and prop the said crosscut. That plaintiff then and there went back to his place of work, and continued to work until about 1 o'clock on the 18th day of September, 1900, when a rock or block of coal fell, by reason of the lack of timbers and the lack of propping, striking the plaintiff upon his head and back and body, fracturing his spinal column, and maiming and wounding him, so that plaintiff became paralyzed from the pit of his stomach and the lower portions of the bowels and all of the muscles and portions of the body, and limbs below the said point so injured, to wit, the center of the back and the pit of the stomach. Plaintiff alleges that it was the duty of the said pit boss, John Wilson, to furnish the said timbers as herein set out for and on the part of the said company for the purpose of making the places reasonably safe as provided by law; that the plaintiff and other miners in the said mine looked to the said pit boss, John Wilson, for the fulfillment of the said duty to the plaintiff and miners in the operation of the said mine. Plaintiff alleges that the said pit boss, John Wilson, at the time of his employment and at the time of the accident, was an ignorant, incompetent person, totally unfit to act as foreman, or take charge of underground work in a mine; that he had no knowledge of men, and no knowledge of mining, and did not know what was necessary to be done in the operation of the said defendant's mine in order to maintain reasonably safe places under ground for the men under his charge; that the said John Wilson was wholly ignorant of the geological formation of the earth and vein in which defendant's mine was located, and did not know what was

necessary to be done in order to have and maintain reasonably safe working places under ground for the plaintiff and operators therein; that the said company knew full well that the said John Wilson was so incompetent and irresponsible at the time of the accident to the plaintiff and for a long time before, but that this plaintiff did not know of said character and incompetency of the said John Wilson; and that the injuries of the said plaintiff are due to the negligence and carelessness of the said defendant in employing the said pit boss and in said defendant's refusing and neglecting to furnish him with the necessary timbers at the entrance of his working place." Upon these allegations issues were formed, and the cause was tried. At the close of the appellant's testimony a motion for nonsuit was interposed by the respondent, and the motion was sustained. The ruling of the court in this respect is assigned as error.

The evidence discloses that the appellant was a practical and experienced miner. The Fairfax mine consists of three veins, which extend north and south practically, and pitch from 60 to 69 degrees. The entrance is made from the bank of the bluff as it goes out to a river. The coal measures lie about 1,000 feet back from the river, and they run diagonally with the course of the river. The main entry or tunnel starts from the gravel bank near the river, and its main direction is nearly northeast. It is sometimes called east and west by the miners. As one goes into the tunnel, the south would be on the right hand and the north would be on the left of the course. The veins are tapped by a tunnel from beneath, so that when a miner reaches the vein he practically turns around to go up into the working. The following is a diagram of the working:

The

The chutes running up into the coal number from the entrance of the tunnel north and south. The first chute on the cut to the left is chute 1 north. The chutes to the right are chutes 1 to 4, inclusive, south. At a distance of 30 feet up from the gangway a counter gangway is driven. The chutes reaching the counter gangway are driven practically at right angles with the gangway, and the chutes extending from the counter gangway up into the coal are driven at an angle from the counter gangway of about 40 to 45 degrees, as is necessary in order to work the mine on account of the pitch of the vein. Crosscut No. 5. between chute No. 1 north and chute No. 1 south, counting from the counter gangway, was the place where Green was injured, and was 230 feet from the counter gangway, which would make it about 260 feet from the main gangway up chute 1 south. The chutes are driven from 3 to 5 feet wide and 5 feet high. The difference in the width is due to the thickness of the vein of coal, being driven up through the coal at an angle. The bottom and top of the coal form the two sides of the chutes. The terms for the rock formation, used in the evidence, are the "hanging wall" and the "foot wall." The top and the bottom of chutes and crosscuts were coal. reason the rock walls were designated the "hanging wall" and the "foot wall" is because of the pitch of the vein. The distance between chutes was generally about 30 feet, but that between chute 1 north and chute 1 south was about 70 feet. The distance between crosscuts was from 30 to 40 feet. The vein of coal pinches out near the surface, and runs into the gravel, which was about 40 feet above the fifth crosscut. As the miners reached the top of the vein, it was found that the coal became softer, and was not solid as below. John Wilson was pit boss. When Green commenced working, he worked in No. 1 vein, called the "Blacksmith" vein, five days; then went to work in the third vein, and worked in the crosscuts between chute 1 and chute 2 south. While working there, his timbers were packed to him at the entrance of the chutes below at the intersection of the gangway. He was then sent to work driving crosscut No. 3, between 1 north and 1 south, which was about 70 feet through. He drove that through, and also crosscut No. 4, and while driving those through he was instructed to drive clear through first and timber down afterwards, as the timber came from the chutes north, and he got his timbers for those crosscuts through chute 1. The pit boss told him to drive through and timber back, and that is the way he mined and timbered crosscuts 3 and 4. He then proceeded to drive crosscut 5, and drove about 25 feet, when he called for timbers. Receiving none, he quit,-laid off two days. This was owing to the coal being more or less soft, and he wanting to timber. The boss then told him to go through crosscut 4, and get his timbers in No. 1 chute north. He did so, and timbered up 20 feet in crosscut No. 5. He

then proceeded and mined 18 or 20 feet more. The day before the accident, and after firing a shot, toward evening, he came down to the chute, and met Wilson, and requested of Wilson timbers to timber his crosscut up. Wilson told him that he had ordered the timher packers to bring him timbers, but Green "never got a stick." Wilson went up into the place, and then came down, and repeated that he had told the timber packer to bring the timbers, and requested Green to drive on through the same as he had the other chutes, and to timber back. "Q. What else did he [Wilson] say? A. 'Well,' he said, 'I told them timber packers to bring you lots of timber, but you go ahead, and drive it through, and when it comes through up here, timber it up again." Soon after Wilson left, Green went home. In the morning, about a quarter to 7, he went in to work, and met pit boss Wilson at the powder magazine, where it was Wilson's duty to hand out the powder to the men as they needed it for their work in the mine; and then again Green told Wilson that he needed timbers to timber his crosscut, and Wilson told him that he would be up there. Green then went up to his place, and first put up some canvas brattice, which took about one hour. He then went up to pick or mine out the coal loosened by the blast, and, after taking out the heel of the shot, found in the face of his working or crosscut, for the first time, a rock, which took up about half of the space in the face, ran from stone wall to stone wall, and extended down into coal two and a half feet. After digging a while and discovering the rock, he went down into the old workings, to see if he could not find some timbers, and found nothing but a round piece of canvas stick about three inches in diameter and five feet long. He could not get another timber. He then put the stick under the outer edge of the rock, and drove it in hard. The rock in the face was the first of the kind he had seen in the mine. He inspected the rock in the usual way, examined it very closely to see if there were any cracks, sounded the parts of the rock to see if it was solid, and found the rock was practically solid. did not see anything very dangerous; did not know it was unsafe. He could not tell what was in the coal back of the face, and did not know of any danger. The following is a part of the cross-examination: "Q. When did you first encounter this rock,-the day you were hurt or before that? A. Yes, sir; the day I was hurt. Q. What time of day? A. What time of day I got hurt? Q. Yes, sir. A. About one o'clock. Q. What I mean is, when did you first come to this rock in your digging up into the crosscut? When did you first find there was a rock in there? A. I don't remember exactly at this time. Q. Some time during the forenoon? A. I think so. Q. And how long were you at work around that rock now before you quit work there, would you say? A. Not very long. The point on my drill hole extended under that rock a little,

He

and so the coal was soft in there. Q. When did you drill into the coal under this rock with reference to the time you went down and got the timber? Did you drill in before or after you got this timber? A. I fired that shot the day before. Q. Did you fire any shot the day you were hurt? A. No, sir. Q. Why didn't you? A. I didn't have time. I got hurt too quick. Q. Well, you were there all the forenoon? A. Yes, sir. Q. But you never fire until you go home? A. Hardly. Sometimes you do, but generally you don't. Q. You generally fire the shot in the evening? A. Yes, sir. Q. So that the smoke will have gotten out by the next day after? A. Yes, sir. Q. You say the night before you got hurt the point of your drill struck the rock? A. It never struck the rock. Q. It never struck the rock? A. No, sir. I drilled my hole a foot from the bottom. Q. When did you first know the rock was there? A. I knowed it the same day I was hurt. Q. After you first discovered the rock, how long did you keep at work taking coal from under it, would you say? A. Perhaps a couple of hours. Q. Perhaps a couple of hours? A. Yes, sir, perhaps. I cannot remember very well. Q. Now, that is the rock that fell on you and hurt you, is it? A. I don't know. I don't think this is the one that broke my back. Q. What do you think about it? A. Well, I know it's not any rock from there that broke my back. I know that. Q. You say the occasion of your quitting finally was that your light became poor? A. Yes, sir. Q. Very of ten you have to fix up your lamp? A. Yes, sir. Q. And you were going out. Were you going to fix your lamp? A. Just away from the face aways. Q. You were at work there at the face at the time? A. Yes, sir. Q. Then you stepped back, you think, about six feet from the face? A. Yes, sir; I backed out. Q. What is the first you can recollect that you heard of this rock coming on? A. Sir? Q. What did you hear first about this rock falling on you? A. I didn't hear nothing. Q. The first thing you knew you were hit? A. Yes, sir. Q. And you were then about six feet from the face? A. Yes, sir; as near as I can judge. Q. What became of your prop? A. I think the prop is there yet. Q. You think the prop is there yet? A. Yes, sir. Q. Did the prop give way when the rock gave out? A. No, sir. Q. You were pretty positive you were about six feet from the face when you were struck? A. Yes, sir. Q. Now, what happened when you were struck? What effect did it have on you when you were struck? A. It doubled me up pretty much. Q. Where were you hit? A. Right across my shoulders. Q. Right across your shoulders? A. Yes, sir. Q. Could you tell how large a rock it was that hit you? A. No, sir. Q. Could you form any estimate about it? Was it a big rock? A. I could not tell. I seen the rock down below. When Mr. Wilson, the pit boss, picked me up, he asked me if it was that rock. I told him it

*

might be. Q. What sort of a looking rock was that? A. I cannot remember. Q. How big a rock was that? A. Oh, I couldn't tell. Q. Was it a couple of feet square? A. I could not tell you. Q. Give the jury some idea about how big it was, as near as you can tell. A. I seen a corner sticking out of the rock there. Perhaps it was a foot long, and the corner pointed like. It was not square; not round. Q. Sort of ragged, jagged looking rock? A. Yes, sir. Q. Well, when this rock struck you on the shoulder, did it knock you down? A. Yes, sir. Q. And did you slide then clear down to the chute? A. No, sir. I slid perhaps five or six feet more, and then I stopped myself. ** Q. That would take you about ten or twelve feet from the face? A. Yes, sir; something like that. Q. And then another rock came down? A. Yes, sir; immediately. Q. And pushed you on down to the crosscut? A. Yes, sir. Well, after the second rock struck me, I got up, because I thought the whole thing was going to fall, so that I made my last struggle, and got up on my feet. Q. Now, tell the jury-explain to the jury-how you were lying or sitting after you slid down here three or four or five feet after the first rock hit you. A. I was lying very much crossways, as I remember, when the second rock struck me. Q. With your face down to the floor of the crosscut? A. No, sir; my face towards the hanging wall and my feet towards the foot wall. Q. Was your head more up towards the face of the entry than down towards the chute? A. I think it was. Q. And the second rock slid down the crosscut and struck you on the small of the back? A. I think it dropped down. Q. You think it dropped down, and struck you in the small of the back? A. Yes, sir. Q. Do you know whether it dropped down or slid down? A. I could not hear nothing sliding. Q. So that it must have dropped? A. Yes, sir. Q. Could you hear it when it left, wherever it started from? A. No, sir. Q. You have no recollection of that? A. No, sir. * * * Q. What had become of the two rocks that hit you? Had they gone down the crosscut, or were they still against you? A. I could not tell you. One of them slid down. Q. Before you went down? A. I could not tell. Q. You have not a very distinct recollection of what took place? A. I remember very well, but I was mostly delirious."

There was testimony tending to show that "niggerheads" falling from the roof would give no warning. The cause of appellant's lamp getting out of order was that it struck against the damp surface of the rock he was working under. The chute from below his crosscut was almost filled with coal, which was the only thing that prevented him from going down the chute the entire distance of 230 feet. The purpose of timbering is to protect the roof from caving and the miners from being injured, and niggerheads from falling out of the coal unexpectedly. It was

the company's duty to furnish the timbers at the entrance of appellant's crosscut No. 5, --just above it, so the coal would not strike it as it went out of this crosscut. There was no custom in this mine and no rule as to timbering. There were no timbers near crosscut No. 5, and no timbers were furnished Green, as he had requested. There is always more or less danger in a mine, and sometimes one may think himself safe when he is not. It was the duty of the pit boss to inspect the mine and the places; to inspect for falling rock, and to clear the chutes of coal; to see that the timbers and props were delivered to plaintiff and the other miners. Miners do their own timbering. That is part of their contract, and they receive no pay for it. It is as cheap for them to timber first as last. Appellant testified that, if he had had timbers, he would have kept his place well timbered to the face; would have put up his timbers every day, especially in this crosscut, as the coal was soft, and more likely to fall. But he had confidence in the pit boss and in his experience, and thought he would be safe in mining there as requested by the pit boss. He did not stop and go home because the pit boss told him to go through. As he states: "I didn't think it was dangerous. If I had thought it would be dangerous, and I get hurt this way, do you think for a moment that I would stay there and get hurt? No, never." Whether it is safe or not to mine without timbers depends upon conditions. In mining coal the miners quite frequently come across places such as Green found in the face. It would have been safe for Green to do just as he did with a flat rock,-after tapping, and finding it to be solid, to proceed to work. A flat rock will disclose breaks or other dangers by the tapping or sounding. It was not carelessness for Green to work around the rock as he did until the boss should come as he promised. The danger was not so imminent and immediate, under all the conditions, in crosscut 5, but what a reasonably careful man would have done just as Green did. A man could work seven weeks if a rock was solid. A portion of the testimony relative to the furnishing of timbers was as follows: "Q. Tell how you happened to get them up in there. A. The mining boss told me to drive through there, and timber down through there for this crosscut. Q. Did you have any conversation with the mining boss about that? A. Yes, sir. Q. Tell the jury about it. A. He told me to timber up after I drove through. * * * He [Wilson] said, 'I told the timber packers to bring you up some timber, and I never had a stick. And he said, 'I told them timber packers to bring you lots of timber;' but I didn't have none, not one. ** * Q. Were there any timbers anywhere near crosscut No. 5 at the place you got hurt? A. No, sir; there was not. Q. What talk did you have with him? A. I told him we needed some timbers. *

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Q. A.

Is

He said, 'I will be up there.'" Appellant testified that the timbers should be delivered at the entrance of the crosscut where one was working; that he applied to Wilson down in the gangway for timbers on the morning of the accident, and complained that he had no timbers. "A. After I had gone into that rock about a foot, I went down into the old works, and knocked out an old timber, and put that under the rock,-that flat rock. ** * Q. Did you take with you more than one timber? A. No, sir; I could not get hold of any more timbers. I brought some laggings with me from this chute up there. * ** I asked him for timber, and always requested for timber. * Well, I done all I could. I went and knocked out my own timber, and put it out. I could not do any more. It was the best thing I could get, and I think it was plenty strong enough to hold that flat rock. ** When you drive you call for timbers? Yes, sir. Q. Were they furnished you? A. Sometimes they were, and most of the time they were not. * * Q. Now, I want to ask you about the timbers, Mr. Green. it not true that there were timbers-three or four timbers-right near the bottom of your crosscut? A. No, there was not. Q. And did you crawl over those timbers after you slid or was thrown down your crosscut? A. No, sir. Q. And did not your dinner pail hang right over, or nearly over, those perpendicular timbers? A. There were no timbers there except that old canvas stick I brought up chuck full of nails, and they hurt me awfully, but I could not get them out. Q. When you went to get your lunch, didn't you sit on timber right at the bottom of your crosscut to eat your lunch? A. No, sir; I had no timbers there. I could not sit on no timbers. Q. And were there not plenty of timbers, say, at the lower entrance of crosscut No. 4? A. No, sir; and, if there had been, I could not have got them. But there were none there. Q. How do you know? A. Because I took the last and put them up there. Q. When? A. When I timbered up. Q. When? How many days before you were hurt? A. About two days and a half. Q. About two days and a half? A. Yes, sir. Q. And did you not know whether timbers had been delivered below there in the meantime or not? A. No, sir; I didn't know; but I didn't think so, because I could not get them, and the mining boss told me to drive through and get more timbers. Q. When were you down here at that place? A. I was down there two and a half days before I got hurt. Q. You were not there afterwards? A. After I got hurt? Q. You were not there after two days before? A. No, sir. Q. And whether the timbers were delivered there at that time or not you do not know? A. No, sir. Q. Why didn't you go and see? A. How can I go when there was a six or seven inch opening there? When I got the timbers before, I had to buck the coal down.

It took me a long time to buck the coal down. I had to creep on my back, and take the timbers in that way."

"The owner, agent or operator of any coal mine shall keep a sufficient supply of timber at any such mine where the same is required for use as props, so that the workmen may at all times be able to properly secure the said workings from caving in, and it shall be the duty of the owner, agent, or operator to send down into the mine all such props when required, the same to be delivered at the entrance of the working place." Ballinger's Ann. Codes & St. § 3178. Under this section the operator of a coal mine is required to keep a sufficient supply of timber to be used as props, so that the workman needing the timber to properly secure his work from caving in, shall have it at hand. The operator must not only keep the timber for that purpose, but he must send it down into the mine, and deliver it at the entrance of the working place. The evidence tends to show that the entrance to the particular working place in which the appellant was working was the upper side of chute No. 1 south, where crosscut 5 intersected said chute, and under the law this is the place at which the props should have been delivered. This regulation is a wise one, and the courts should endeavor to uphold it by all reasonable construction. The purpose of the law is to provide a reasonably safe place for the men to work in, and that the working places mined out where the men are compelled to go or work shall be timbered by the men as they mine the coal away, so as to keep the same from caving in, and to make it reasonably safe from the inherent dangers. The falling of rock and coal is one of the inherent dangers that produces a large percentage of all the accidents, and this law was passed for the purpose of reducing the number of accidents as far as possible. It is a positive duty imposed upon the operator, and for a neglect of this duty, which proximately contributed to the injury, the company is responsible. The general duty imposed by law upon the master is to provide a suitable and reasonable place for the doing of the work to be performed by the servants, and an adequate supply of sound and safe materials, implements, and accommodations, with such other appliances as may reasonably be required to insure their safety while at work. When the statute prescribes the measures that shall be taken by the operator of a coal mine to render the place safe where the miner is working, it imposes a specific duty upon the master, which he must perform to escape the charge of negligence. The law has regard to the hazardous nature of the employment in imposing this duty upon the operator of the mine, the object being to secure a reasonably safe place for the workmen in the mine. The test and measure of duty is the command of the statute. Sommer v. Coal Co., 32 C. C. A. 156, 89 Fed. 54.