The general duty is also imposed upon the operator to see that the working places in the mine where props are necessary to keep the mine from caving in are propped, and that the working places are frequently inspected to ascertain whether the props are put up, and to see that the workmen put up the props as their work progresses. A failure to do this is negligence. To do this is the exercise of a reasonable precaution, and reasonable precautions must be taken to secure the safety of the workmen. The workmen have a right to look to the master for a discharge of this duty. Failure to take such precaution is negligence. Costa v. Coal Co., 26 Wash. 138, 66 Pac. 398; Shannon v. Mining Co., 24 Wash. 119, 64 Pac. 169.

If the statute as to furnishing props had been complied with, would the injury have occurred? From the evidence it is fair to presume that, if the props had been furnished, the place where the appellant was injured, some 12 feet from the rock he was digging under, which was exposed by the blast set off the evening before, would have been roofed over. There is evidence tending to show that the rock that injured him fell out of the roof, and that he did not know of its presence in the roof. If he was injured by a rock or block of coal falling from the roof that would have been timbered if the company had performed its duty, then the danger was one of the risks of his place contemplated in the law. The rock did not fall because of any act of Green, but it fell through the lack of props,-the violation of the law by the company. It cannot be said that appellant should have left the place because the danger was imminent, for the evidence tends to show that he did as other miners have and would have done, and acted in the practical and customary way; that he was requested by the pit boss to drive on through to the other side, and timber back; and, if the jury should find such assurance was made, and the danger was not so imminent but what a reasonably careful man would do as appellant did, then he was not guilty of negligence in proceeding as he did. He did not know the exact danger in the roof, and, if the rock fell from the roof, he did nothing to bring it down upon him.

In passing upon a statute of Indiana similar to the one under consideration in Mining Co. v. Schmidt, 43 C. C. A. 532, 104 Fed. 282, the court said, at page 285, 104 Fed., 43 C. C. A. 535: "Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employés and the employer, with the result that the employer dissuades the employé of his apprehension." In Gundlach v. Schott (III.) 61 N. E. 332, 85 Am. St. Rep. 348, it was held: "It is well settled that, even though the plaintiff knew of the defect, if

He

the master ordered him to proceed with the dangerous work, he did not assume the risk of so doing, unless the danger was so manifest that a person of ordinary prudence and caution would not have incurred it. 'Even if the servant has some knowledge of attendant danger, his right of recovery will not be defeated if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils. The servant has a right to rest upon the assurance that there is no danger which is implied by such an order. The master and servant are not altogether upon a footing of equality. The primary duty of the latter is obedience, and he cannot be charged with negligence in obeying an order of the master. unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master's order, or whether he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury.' Steel Co. v. Schymanowski, 162 III. 447, 44 N. E. 876; Offutt v. Exposition, 175 Ill. 472, 51 N. E. 651." See, also, Myrberg v. Railroad Co., 25 Wash. 364, 69 Pac. 539. It is true that the appellant was a practical miner. He knew there was danger of falling rock from the unroofed crosscut. knew the coal was soft. Under ordinary circumstances, without assurance from his employer and obedience to his employer's order, he might be said to have assumed the risk of the injury that overtook him. Does the statute we have cited change the ordinary rule? We think it does. While it is the ordinary rule that the workman assumes the known dangers resulting from negligence of the positive common-law duty on the part of his employer when he continues at work, that rule of law cannot apply to the violation of a statutory duty. Where the operator of a coal mine violates a statute providing for the furnishing of timbers, for instance, and one is injured through the fact of the violation by reason of the lack of timbers which should have been furnished, the employer cannot plead assumption of risk, etc., even when the miner knew of the violation. The operator cannot violate a statutory command made for the protection of workmen, and shift his responsibility and liability upon the injured on the plea that the injured one knew the law was violated; especially so when the injured one was doing all in his power before the accident to have his employer obey the law by furnishing the timbers. If this were not so, the law would be a dead letter. The primary object of the statute is to secure the safety of persons employed in coal mines. To apply the doctrine of assumption of risks to the case under consideration would render the law in

effectual to accomplish the object that it was intended should be accomplished by it. "Every person, while violating an express statute, is a wrongdoer, is ex necessitate negligent in the eyes of the law; and an innocent person, within its protection, injured thereby, is entitled to civil remedy by way of damages. Dodge v. Railroad Co., 34 Iowa, 276; Correll v. Railway Co., 38 Iowa, 124, 18 Am. Rep. 22: Small v. Railway Co., 50 Iowa, 338." Mosgrove v. Coal Co. (Iowa) 81 N. W. 227. In Narramore v. Railway Co., 37 C. C. A. 499, 96 Fed. 298, 48 L. R. A. 68, in passing upon a statute of Ohio requiring railroad companies to block the frogs, switches, and guard rails on their track under a penalty of a fine, the court of appeals of the Sixth circuit said: "The sole question in the case is whether the statute requiring defendant railway, on penalty of a fine, to block its guard rails and frogs, changes the rule of liability of the defendant, and relieves the plaintiff from the effect of the assumption of risk which would otherwise be implied against him. We have already had occasion to consider in a more or less direct way the effect of the statute. Railway Co. v. Van Horne, 16 C. C. A. 182, 69 Fed. 139; Railway Co. v. Craig, 19 C. C. A. 631, 73 Fed. 642. In these cases we held that the failure on the part of a railway company to comply with the statute was negligence per se. A further consideration of the statute confirms our view. The intention of the legislature of Ohio was to protect the employés of railways from injury from a very frequent source of danger by compelling the railway companies to adopt a well-known safety device. It was passed in pursuance of the police power of the state, and it expressly provided, as one mode of enforcing it, for a criminal prosecution of the delinquent companies. The expression of one mode of enforcing it did not exclude the operation of another, and in many respects more efficacious, means of compelling compliance with its terms, to wit, the right of civil action against a delinquent railway company by one of the class sought to be protected by the statute for injury caused by a failure to comply with its requirements. Unless it is to be inferred from the whole purview of the act that it was the legislative intention that the only remedy for breach of the statutory duty imposed should be the proceeding by fine, it follows that upon proof of a breach of that duty by the railway company, and injury thereby occasioned to the employé, a cause of action is established. Groves v. Lord Wimborne [1898] 2 Q. B. 402, 407; Atkinson v. Waterworks Co., 2 Exch. Div. 441; Gorris v. Scott, L. R. 9 Exch. 125. In this case there can be no doubt that the act was passed to secure protection and a newly defined right to the employé. To contine the remedy to a criminal proceeding, in which the fine to be imposed on conviction was not even payable to the injured employé

or to one complaining, would make the law not much more than a dead letter. The case of Groves v. Lord Wimborne involved the construction of a statute quite like the one at bar, and a right of action was held to be given thereby to the injured servant in addition to the criminal prosecution. The courts of Ohio have given the statute under discussion the same construction. Railroad Co. v. Lambright, 5 Ohio Cir. Ct. R. 433, affirmed by the supreme court of Ohio without opinion, 29 Wkly. Law Bul. 359. Do a knowledge on the part of the employé that the company is violating the statute, and his continuance in the service thereafter without complaint, constitute such an assumption of the risk as to prevent recovery? The answer to this question is to be found in a consideration of the principles upon which the doctrine of the assumption of risk rests. If one employs his servant to mend and strengthen a defective staircase in a church steeple, and in the course of the employment part of the staircase gives way, and the servant is injured or killed, it would hardly be claimed that the master was wanting in care towards the servant in not having the staircase which fell in a safe condition. Why not? Because, even if no express communication is had upon the subject, the servant must know, and the master must intend, that the dangers necessarily incident to the employment are to be at the risk of the servant, who may be presumed to receive greater compensation for the work on account of the risk. The foregoing is an extreme case, perhaps, but it fairly illustrates the principle of assumption of risk in the relation of master and servant. Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself; but the current statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly or impliedly to assume. The master is not, therefore, guilty of actionable negligence towards the serv ant. This is the most reasonable explanation of the doctrine of assumption of risk, and is well supported by the judgments of Lord Justices Bowen and Fry in the case of Thomas v. Quartermaine, 18 Q. B. Div. 685, 695. See, also, language of Lord Watson in Smith v. Baker [1891] App. Cas. 325, and O'Maley v. Gaslight Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161. It makes logical that most frequent exception to the application of doctrine by which the employé who

notifies his master of a defect in the machinery or place of work, and remains in the service on a promise of repair, has a right of action if injury results from the defect while he is waiting for the repair of the defect, and has reasonable ground to expect it. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Railroad Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Snow v. Railway Co., 8 Allen, 441, 85 Am. Dec. 720; Gardner v. Railroad Co., 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107. From the notice and the promise is properly implied the agreement by the master that he will assume the risk of injury pending the making of the repair. If, then, the doctrine of the assumption of risk really rests upon contract, the only question remaining is whether the courts will enforce or recognize as against a servant an agreement, express or implied, on his part, to waive the performance of a statutory duty of the master, imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute; and yet, if the assumption of risk is the term of a contract, then the application of it in the case at bar is to do just that." We do not think, in consideration of the statute cited, that the appellant assumed the risk of his employment in this instance. The assumption of risk by the employé, which is a matter of contract, is not to be confused with contributory negligence. "Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes the risk cannot be said to be guilty of contributory negligence, if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences. One who does not use such care, and who, by reason thereof, suffers injury, is guilty of contributory negligence, and cannot recover, because he, and not the master, causes the injury, or because they jointly cause it. Many authori

ties bold that contributory negligence is a defense to an action founded on a violation of statutory duty, and this undoubtedly is the proper view." Narramore v. Railway Co., supra. It was for the jury to say whether or not the appellant used reasonable care in working in the crosscut after the discovery of the rock, because we cannot say the danger was so obvious and imminent that no ordinarily prudent man would assume the risk of injury. Jordan v. City of Seattle, 26 Wash. 61, 66 Pac. 114.

From what we have said it follows that the judgment of the court must be reversed, and this case remanded for a new trial.

Some of the errors assigned may arise during the progress of the new trial, and it becomes necessary for us to pass upon them. The following questions were asked by the appellant, objected to by the respondent as incompetent, irrelevant, and immaterial, and objection sustained: "What is a jump?" "Is it not a fact, Mr. Puthoff, that in the geological change from a horizontal to an almost perpendicular, that where the coal is pinched out, as shown by plaintiff's identification No. 2 here, that in that vicinity and for a number of feet below there is a change, and as you reach that gravel-for 100 feetand as you reach that gravel is there a changed condition in the coal from hard to soft?" "Would there be any similarity between the coal formation at the place where you drove-that is, between 1 and 2-and No. 5 crosscut, where Green was hurt?" "How far from the gravel did you drive the crosscut or air way between 1 and 2 south?" "The condition-a coal vein changes, does it, as to location and place? Answer: Yes, sir. Question: What changes the condition of coal near the gravel or near a fault?" All of these questions tended to show the natural condition of the mine in which the appellant was working, his surroundings, the care necessary to be taken by the workmen in working in the mine, as well as the care the company should take in timbering and operating the mine. The condition of the mine in the vicinity of the accident is an important matter for the consideration of the jury. We think all of these questions were competent and material, and that the court erred in sustaining the objections thereto.

The following question was asked the appellant: "What did you say, whether it was rock or coal that fell on you?" This question was competent, but it was not asked on the direct examination of Mr. Green, and the objection to it was that it was incompetent, and was not redirect examination. The last objection was well taken, but it was within the discretion of the court to have allowed the question. We cannot say that the court abused its discretion in refusing to allow it.

The following question was asked: "Whereabouts did you get your timbers when you were working on those angles on

the south side?" This was objected to because it was incompetent, irrelevant, and immaterial. In some phases of the case this question might have been material. The answer to this might have a tendency to show that it was not the rule in the mine to furnish the timbers at the entrance to the working place, as required by statute.

The following questions were asked, objected to, and objection sustained: "Men in the mine driving chutes are generally paid how?" "You may state whether or not miners in this particular mine,-in this portion of the mine,-how they worked; whether by contract work, or how they worked." These questions were objected to as incompetent, irrelevant, and immaterial. If this evidence was material, it was for the purpose of showing the manner of operating the mine. It might have been material for that purpose. If, however, no other errors were assigned, we would not reverse the case on account of the rulings of the court in this particular.

The following questions were asked, objected to as incompetent, and objection sustained: "You may tell the jury what are the duties of a pit boss as to inspecting the working places." "Mr. Puthoff, you may state what the duties of a pit boss are in relation to keeping the chutes clear of coal." "You may state, Mr. Puthoff, what the duties of a pit boss are in relation to timbering or fixing the bulkheads for the purpose of keeping rocks from falling down through the chutes." "You may state, Mr. Puthoff, the duties of a pit boss in relation to repairing defects when complained of." "You may state, Mr. Puthoff, whether or not, when chutes become clogged or blocked, it is extra hazardous work to start them and unblock them." "You may state if you watched the conduct of the pit boss, John Wilson, while you were at work in the mines." "You may staté, Mr. Puthoff, whether or not it was the general complaint in the mine among the men-the miners-to the foreman or the pit boss that they had not sufficient amount of timbers and props at the entrance of their working place to properly timber their places." We think all these questions were competent, as tending to show the incompetency of the pit boss to superintend the workings in the mine. We think that under the complaint the appellant had the right to show the incompetency of the pit boss, and that the court was not justified in excluding the testimony, which these questions sought to bring out, tending to show such incompetency. For the same reasons we think the appellant should have been allowed to show that it was the duty of the pit boss to see that the coal in the chutes was removed, so that the travel ways or air ways were cleared, and that the pit boss did not perform that duty. The appellant should also have been allowed to show that it was the duty of the pit boss to timber the chutes and crosscuts, and to place bulkheads and other

devices for the purpose of keeping rock and coal from running down the chutes; that the pit boss, John Wilson, did not, in the management of the mine, place bulkheads or timbers for the protection of the chutes or crosscats so as to keep rock from falling down through the chutes, and that by reason of his negligence and neglect of that duty rocks were constantly falling down through the chutes and crosscuts, making it dangerous to miners. The appellant should also have been allowed to show that it was the duty of the pit boss to repair defects in bulkheads and other devices when made, so that the coal above being mined by the miners would not fall on the miners below; that the pit boss did not make such repairs, and, when informed of such defects by the miners below, the miners were immediately discharged; that the pit boss would employ ignorant, inexperienced miners, and would set them at hazardous work in the mine, without informing them of the danger and hazard of such employment, and, instead of informing them of the dangers, would assure them that it was not dangerous. Appellant should have been allowed to show that, when the chutes in the mine became blocked, and starting or unblocking the chutes was dangerous work, the pit boss sent ignorant and inexperienced men to start the chutes, and told them there was no danger. We think appellant should have been allowed to show that it was the general complaint in the respondent's mine that the workmen did not have and could not get a sufficient amount of props and timbers, that they were not delivered to them at the entrance of the | working places, and that there was not a sufficient amount of timber to properly prop their working places for the protection of the lives and limbs of the men. Evidence under these offers would have had a tendency to establish the incompetency of the pit boss. It was also competent for the appellant to show that the respondent could, by reasonable care, have known of the incompetency of the pit boss, and of his want of proper supervision over the workmen and the working places in the mine. We think it was also competent to show the general reputation of the pit boss for competency and regard for the lives and limbs of the miners under his charge. The functions and duties of the pit boss made him, under the law, a most important vice principal. The duty of selecting a competent pit boss was as imperative as the duty to furnish proper timbers and props. It will not do, in this sort of a case, to take the narrow view seemingly taken by the court below, that, if the law has been violated, it is immaterial what kind of a vice principal violated the law, and hence to exclude all evidence of his incompetency. That would be, in substance, telling the operator of a mine, "You may appoint incompetent persons, and place them in charge of the lives of the men you have under ground, and if, by chance, some per

son is injured because of the violation of a statutory duty, the fact of such an appointment will never be allowed to go to the jury on the matter of your diligence and care for the safety of the men under your charge." A competent pit boss must understand not only the statutory duties imposed upon the operator by law, but the ordinary duties appertaining to such a position. "The presumption is that the master has exercised proper care in the selection of the servant. It is incumbent upon the party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency, and bringing them home to the knowledge of the master or company; or by showing them to be of such a nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. But such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of. So it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant, to leave it to the jury to determine whether they did come to the knowledge of the master, or would have come to his knowledge if he had exercised ordinary care. In such case the presumption that the master had discharged his duty may be overcome to such an extent as to call upon him to rebut the proof made showing his negligence." Bailey, Mast. Liab. p. 55, and cases cited. See, also, Railroad Co. v. Henthorne, 19 C. C. A. 623, 73 Fed. 634; Davis v. Railway Co., 20 Mich. 105, 4 Am. Rep. 364; Hilts v. Railway Co., 55 Mich. 437, 21 N. W. 878; Gilman v. Railroad Corp., 10 Allen, 233, 87 Am. Dec. 635; Gilman v. Railway Co., 13 Allen, 433, 90 Am. Dec. 210; Railroad Co. v. Sullivan, 63 Ill. 293; Stone Co. v. Whalen, 151 Ill. 472, 38 N. E. 241, 42 Am. St. Rep. 244; Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. 1003; Railway Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710, 47 Am. St. Rep. 392; Railway Co. v. Ruby, 38 Ind. 294, 10 Am. Rep. 111. Specific acts of incompetency of the pit boss were admissible in evidence under the general allegation that the pit boss was ignorant and incompetent, and under this allegation evidence was admissible that the pit boss did not have regard for the lives of the men under his charge, etc. The matter stricken from the complaint was evidentiary matter, and for that reason the court did not err in striking the same, so long as there remained the general allegation that the pit boss was ignorant and incompetent.

The judgment of the court below is reversed, and the cause remanded for a new trial.

REAVIS. C. J., and DUNBAR, HADLEY, FULLERTON, MOUNT, and ANDERS, JJ.,

concur.

(26 Nev. 455)

DANGBERG v. RUHENSTROTH.

No. 1,629.

(Supreme Court of Nevada. Oct. 22, 1902.) DISTRICT COURT-JURISDICTION-TRESPASS

TITLE-EQUITY.

1. Comp. Laws. § 3604, provides that in cases when the damages claimed for an injury to real property do not exceed $300 the justices' courts shall have jurisdiction. Sections 780. 781, provide for damages against any one grazing live stock on land to which another has title, or on which first payment has been made by another. A complaint filed in the district court alleged trespasses by defendant's sheep on plaintiff's land, to his damage in the sum of $100. Defendant demurred for lack of jurisdiction because of amount involved. Held that, no issue being made save that of law raised by the demurrer, the court could not have known whether title to real estate would be involved, and properly sustained the de

murrer.

2. The statute merely contemplates an action at law for damages, and an action brought thereunder is in no sense an equity proceeding, so as to give the district court jurisdiction.

Appeal from district court, Douglas county; C. E. Mack, Judge.

Action by George F. Dangberg against Louis Rubenstroth. From a judgment sustaining defendant's demurrer, plaintiff appeals. Affirmed.

Alfred Chartz, for appellant. William Woodburn, for respondent.

BELKNAP, J. The complaint filed in the district court alleged ownership in plaintiff to certain described lands in the county, and trespasses thereon, by defendant's sheep, to plaintiff's damage in the sum of $100, etc. The district court sustained a demurrer upon the ground that it had no jurisdiction of the subject-matter, for the reason that the amount claimed is less than $300. The ruling is supported by the provisions of section 509 of the civil practice act (section 3604, Comp. Laws), which, among other things, provides that justices' courts shall have jurisdiction of an action for damages for injury to real or personal property if the damages claimed do not exceed the sum of $300. Appellant contends that, in order to establish his cause of action, it was incumbent upon him to allege and prove title, or that, under the provisions of sections 780, 781, Comp. Laws, he had made first payment on the land, and that for either of these reasons the title to the real estate was involved. It is a sufficient answer to this position to say that no issue had been made except the issue of law raised by the demurrer, and that the court could not have known whether title to real estate would be involved.

It is also claimed that the proceeding is one in equity, and therefore not within the jurisdiction of the justice of the peace; and Young v. Wright, 52 Cal. 407, is cited in support of this view. That was a case in which the owner of land, acting under the provisions of a trespass law of California (St. Cal. 1873–74, p. 50), took up trespassing sheep, and thereafter commenced an action in rem against the