inspector and on his appeal he may traverse the fact alleged as to the condition of the mine. Consolidated Coal Co.'s Appeal, 37 Pa. County Ct. Rep. 477, p. 481. 28. DANGEROUS CONDITIONS PROCEDURE-REVIEW BY COURT. When conditions in the mine are such as to jeopardize health or life action must be taken at once by the proper mine inspector and he must notify two of the mine inspectors of the other districts and they, acting with him, shail examine into the matter and if on full investigation they are of the opinion that there is imminent danger they shall notify the superintendent of the mine in writing to remove such conditions forthwith. If the danger is not forthwith removed the mine inspectors may apply to the proper court or judge for an injunction to suspend all work in the mine until such danger is removed. Many cases may occur where it is absolutely necessary to have immediate results to protect the lives and health of the miners, but such results would not be immediate if mine operators had the right to consider for seven days the matter of an appeal and should then require a court to make immediate investigation into the matter alleged by the mine inspectors or appoint three persons to make the investigation who would have thirty days in which to report and another ten days might be taken if no exceptions were filed, and if exceptions were filed the court would be required to pass upon the exceptions before any definite action could be determined. Six weeks or more might thus be consumed after the notice by the mine inspectors before a determination as to the dangerous conditions of the mine could be obtained. Such a possible delay was not the intention of the act. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 911. A mine inspector discovered that explosive gas was generated in a mine in such quantities that it could be detected by an ordinary safety lamp and refused to permit the mine to be operated by the use of open lights and electric power for haulage. On application by the mine operator three competent and reputable persons were appointed as commissioners to examine the mine and make their report to the court. The commissioners reported that from their examination they believed the mine could be worked with open lights and the use of electricity with safety if the mining laws were carefully obeyed. The issue on exceptions to the report of the commissioners was not as to their competency or as to whether they acted honestly or otherwise in making their examination of the mine, but the issue was whether the mine inspector was right in prohibiting the use of open lights in the entries and other working places in the mine and this the court must determine upon the evidence as a disputed question of fact. Allegheny Coal Co.'s Appeal, 17 Pa. Dist. Rep. 271, p. 273. 29. DANGEROUS CONDITIONS-PROCEDURE UNDER ARTICLE XI. The provisions of Article XI of this act apply only when conditions in a mine are such as to jeopardize life or health. In such case immediate action must be taken by the mine inspector of the district. Two mine inspectors of other districts at his request and acting with him must examine the mine, and if agreeing in the opinion that there is imminent danger, they shall notify the superintendent or mine operator in writing to remove such condition forthwith, and if not done they shall apply to a court of common pleas or a judge thereof for an injunction to suspend all work in the mine. Pittsburgh Coal Co.'s Appeal, 35 Pa. County Ct. Rep 1, p. 5. See Consolidated Coal Co.'s Appeal, 37 Pa. County Ct. Rep. 477. Article XI grants to mine inspectors authority to enter mines and make examinations, and it prescribes the procedure to be followed by them if the mine is dangerous. When mine inspectors agree in the opinion that there is imminent danger in the mine and give written notice to the operator of their decision, this is a decision from which an appeal may be taken. If the opinion arrived at and declared in writing that the mine was in a dangerous condi tion from the presence therein of explosive gases, was not a decision, then the "demand" for removal of the conditions and the instructions as to the method of their removal was groundless and without weight. Consolidated Coal Co.'s Appeal, 37 Pa. County Ct. Rep. 477, p. 480. Under Article XI directions and instructions from mine inspectors to a mine operator are to be considered as merely suggestions or recommendations on the part of the inspectors, and the mine operator is at liberty to use any other method or means that he may see fit to adopt to put and keep his mine in a safe condition. The result to be obtained is the safe condition of the mine for the miners employed therein. If in the opinion of the mine operator the mine is not dangerous he may take no action whatever on the notice from the mine inspectors; but failing to do so the mine inspectors may apply to a court for an injunction to suspend the work in and about the mine until the alleged danger is removed. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 912. The act does not prohibit the notification of more than two inspectors, and the fact that more than that number do act with the local inspector in the matter can not prejudice the rights of a mine operator, as it is of benefit and not harm, tending to secure a better and sounder judgment as to the real condition of the mine relative to danger to the lives and health of the miners. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 912. A mine inspector called to his assistance six other inspectors of different districts, who, with him, investigated the conditions of a mine in his district. After an inspection the inspectors all joined in a notice to the mine operator reciting the dangerous conditions of the mine and directed him to remove such conditions forthwith and specified particularly the method by which the mine could be operated safely. Such proceedings are had under Article XI of the act and do not authorize the mine operator to appeal from such notice to a court of quarter sessions. Such proceedings are contemplated by Article XI of the act and apply only when conditions in a mine are such as to jeopardize life or health. In case of immediate failure to comply with the requirements of the notice, it is the duty of a mine inspector to apply to the common pleas court for an injunction to restrain all mining operations until the require ments are complied with. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 910. 30. DANGEROUS CONDITIONS-PROCEDURE UNDER ARTICLE XIV. Article XIV of this act is not intended to apply to a condition of imminent danger in a mine; but it is intended to provide a plan for review by the courts of the decision of the mine inspector of the district wherein the particular mine is located in matters of operation and regulation other than of immediate danger to the lives and health of the miners. The provisions of this article do not apply in cases where three mine inspectors are required by Article XI of the act to give notice as to imminent danger to life or health in the mine. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 912. See Consolidation Coal Co.'s Appeal, 20 Pa. Dist. Rep. 228. Article XIV provides for a decision by examiners appointed by a court and by the court upon exceptions to the examiners' report; but it provides also for appeals from any decision a mine inspector may arrive at in the discharge of his duties under the entire act. This must necessarily include the right of appeal from any decision or determination made by mine inspectors under Article XI. Consolidated Coal Co.'s Appeal, 37 Pa. County Ct. Rep. 477, p. 481. Article XIV of this act provides a plan for review by the courts of the decision of the mine inspector of the district wherein a particular mine is located in matters of operation and regulations other than of immediate danger to the lives or health of the miners. This article does not apply in cases where three mine inspectors or more under the authority of Article XI give notice as to imminent danger to life or health in the mine. It will be determined from the language of a notice given by the inspectors whether it is under Article XI or Article XIV. The matter of decision and appeal applies to Article XIV only, and the matter of notice and injunction applies only to Article XI and the remedy under Article XIV is in the Court of Quarter Sessions and under Article XI is in the Coort of Common Pleas. Pittsburgh Coal Co.'s Appeal, 35 Pa. County Ct. Rep. 1, p. 6. 31. DANGEROUS CONDITIONS-DISTINCTION BETWEEN PROCEDURE UNDER ARTICLES XI AND XIV. The method of procedure under Article XI and the method of procedure under Article XIV are distinct and are intended to apply to different conditions. Each article has its own method for the enforcement of its provisions, and this method in each case must be taken as conclusive. The matter of notice and injunction applies only to Article XI while the matter of decision and appeal applies only to Article XIV. The remedy in one case is in the Court of Common Pleas and in the other in the Court of Quarter Sessions. Pittsburgh Coal Co.'s Appeal, 17 Pa. Dist. Rep. 909, p. 912. The fact that an injunction may be applied for if a mine operator fails to comply with the decision of the inspectors as provided in Article XI, does not deny the right of appeal under Article XIV, as section 3 of that article prevents an appeal from operating as a supersedeas. Consolidated Coal Co.'s Appeal, 37 Pa County Ct. Rep. 477, p. 482. 32. EXPLOSIVE GAS GENERATED-SAFETY LAMPS-DUTY OF INSPECTOR. This act provides that entries where explosive gas is being generated in such quantities as can be detected by the ordinary safety lamp shall be worked with locked safety lamps only. The statute fixes the requirement of working with locked safety lamps not by safety or by any quantity of gas except that it is sufficient to be detected by the ordinary safety lamp, and by the fact that the gas is explosive. As to this the mine inspector has no discretion, and when this condition is discovered his duty becomes absolute. The question is not to be determined upon any theory as to whether it is safe or not to use an open light; and the only question for determination by the inspector is whether or not explosive gas is generated so as to be detected by the ordinary safety lamp. If it is, then the place where found must be worked with locked safety lamps. The law does not leave the safety of the operation to the discretion of the inspector, but it is positive and without exception. Allegheny Coal Co.'s Appeal, 17 Pa. Dist. Rept. 271, p. 276. 33. GAS WELL DRILLED THROUGH MINE-DANGEROUS CONDITION-DUTY OF INSPECTOR, A mine inspector discovered that gas wells were being drilled from the surface through the worked out portions of a coal mine, and thereupon gave the mine operator the required notice of the dangerous conditions existing, and that such conditions must be removed immediately or an injunction would be applied for to restrain the mining operations. Thereupon the coal mine operator began proceedings to enjoin the drilling company, operating under a lease from the surface owner, from continuing the drilling operations. The court in such proceeding may, for the purpose of making safe the dangerous conditions in the mine, specify the particular method and manner by which the drilling operations may be carried on and may require the drilling company to use a stated sized casing and to fill in the space between the casing and the tubing with liquid cement in order to prevent the escape of gas in the mine and to make such orders as will fully protect the mine operator and avoid any proceedings against him by the mine inspector. Monongahela River Coal & Coke Co. v. Greensboro Gas Co., 20 Pa. Dist. 34. NEGLIGENCE-PROXIMATE CAUSE-PLEADING. A miner injured by an explosion of gas in a mine can not recover damages in an action against the mine owner and operator on the ground of negligence in failing to furnish material or supplies, where the lack of such supplies or material did not cause the explosion and the injuries complained of; and where there was a failure to connect any alleged negligence on the part of the mine owner and operator in not furnishing proper material with the injury caused to the complainant, although there may have been negligence in fact on the part of the mine owner or operator to furnish materials. Brisko v. Braznell Gas Coal Co., 223 Pa. St. 186, p. 191. In an action by a miner for damages for injuries he must aver facts sufficient to show that a duty required by law has been breached or neglected by the mine operator, and the averments must be sufficient to indicate the casual connection between such breach or neglect and the injury complained of and must be sufficient to give the defendant clear and exact information of the charges against him; and while he need not anticipate defenses or aver mere underlying evidentiary facts, yet the elementary facts relied upon to show negligence must appear in unequivocal language and these facts must be such as, standing alone, if not controverted, would entitle the plaintiff to a verdict in his favor; and a multitude of charges, none of which aver facts sufficient to make a case against the defendant, are no stronger than one insufficient averment would be. Charnogursky v. Price-Pancoast Coa! Co., 249 Pa. St. 1. In an action for damages for the death of a miner, caused by the alleged negligence of a mine operator, the declaration is insufficient where there is no averment of any particular act or acts of omission to perform a duty required by law which, either singly or concurrently, can, within the established law upon the subject, be properly counted the proximate cause of the injury com plained of, and where it is impossible to tell whether the liability, in the mind of the pleader, is of statutory or common-law origin, whether founded on defects inherently in the plan, construction, or equipment of the colliery, or one arising from wear and tear, or whether the case intended is one of improper supervision, and if the latter, whether the deficiency in that respect lay in the number, fitness, or inattention of the servants in charge, and the identity of the servants is not made to appear; and especially where the pleading proceeds upon the theory that the law requires the operator to give his miners an absolutely safe place in which to work and immediately to warn them of any impending danger, overlooking the fact that the requirement is reasonable, safety only to be secured by reasonable care under the circumstances. Charnogursky v. Price-Pancoast Coal Co., 249 Pa. St. 1. 35. NEGLIGENCE SUFFICIENCY OF PROOF-PRESUMPTIONS-INSTANCES. In an action for damages for the death of a driver killed by being caught between the car and the rib because of insufficient space between the cars and the rib, the failure to prove that ten men were employed in the mine at the time of the accident is immaterial, where the evidence shows that when the entry in question was driven and the conditions created which led to the accident, more than ten men were employed, on the theory that when a mine is once brought within the provisions of the act it is presumed to remain so until something affirmatively appears to the contrary. Smith v. Stoner, 243 Pa. St. 57, p. 62. In order to charge a mine owner or operator with negligence and consequent liability for the death of a miner it must be made to appear that the owner or superintendent refused to furnish materials on proper request, or the failure to keep at the mines the necessary materials or supplies as required by the statute. But it is not sufficient to show that the miner told the superintendent of the necessity for supports for the roof and brattice in the butt entry and that the superintendent promised to have the necessary work done to put the entry in proper shape, nor is it sufficient that the mine foreman informed the superintendent that the roof was bad and ought to be fixed. There must be, under the statute, a demand by the foreman upon the superintendent or owner for material with which to do the work. Brisko v. Braznell Gas Coal Co., 223 Pa. St. 186, p. 190. 36. VIOLATION OF STATUTE-PROXIMATE CAUSE OF INJURY. The duties enjoined by this act are obligatory, and a neglect or refusal to perform them is made a misdemeanor punishable by fine or imprisonment; and a right of action against the owner or operator is given to any person who is injured by a failure to comply with the provisions of the act by the owner, operator, or superintendent. Wolcutt v. Erie Coal & Coke Co., 226 Pa. St. 204, p. 207. In an action for damages for the death of a car driver where the evidence shows that the coal-mine operator failed to have a clear level width of at least two and one-half feet between the side of the car and the rib at a point where the drivers were required to use sprags or brakes and the driver was killed by being caught between his trip and the rib, it is sufficient to justify a finding that the condition of the entry, the violation of the statute, was the proximate cause of the injury. Smith v. Stoner, 243 Pa. St. 57, p. 64. See Webster v. Monongahela Consol. Coal & Coke Co., 201 Pa. St. 278, p. 284. |