
    The Morris Coal Company v. Donley.
    
      Protection to miners — Section 6871, Revised Statutes — Miner not excused from propping mine roof — Because props might interfere with machine mining, when.
    
    1. An exception to the provisions of a statute not suggested hy any of its terms should not be introduced by construction from considerations of mere convenience.
    2. It is required by section 6871, Revised Statutes and cognate sections of the statute that a miner shall securely prop the roof of a working place under his control and a failure to comply with the requirement cannot be excused because the presence of props might render machine mining impracticable. (Goal and Mining Co. v. Admr. of Clay, 51 Ohio St.,. 542, approved and followed.)
    (No. 9261
    Decided February 2, 1906.)
    Error to the Circuit Court of Guernsey county.
    The defendant in error brought suit in the court of common pleas to recover of the Coal Company on account of injuries by him sustained while working in its mine. The petition is as follows:
    Plaintiff says that the defendant is and was at all the times hereinafter mentioned, a corporation duly organized and doing business under the laws of the state of Ohio, and owning a coal mine in said county of Guernsey, known as “Old Orchard Mine,” and to that end, employing many men, some of whom were by the defendant put under the control and direction of other employes employed by the defendant, as hereinafter appears.
    On and prior to the twenty-sixth day of October, 1901, plaintiff was employed hy defendant in said mine, known as “Old Orchard Mine,” as a machine man, so-called, for a hire amounting to about three (3) dollars per day, with the duty to labor in said mine, underground, at such places and at such work, as his foreman, also employed by the defendant, should direct.
    On said twenty-sixth day of October, 1901, plaintiff was by said foreman, ordered to work in room No. 10 at mining part of the pillar between room No. 9 and room No. 10,-which rooms were driven off of entry number six (6) in said mine, as a machine man, with a certain coal mining machine owned by the defendant, and operated by electricity furnished by the defendant, the roof whereof covering said working place in mining said part of said pillar, at, and covering a space of less than five (5) feet from, the face thereof, was unsafe and dangerous.
    That said unsafe and dangerous condition of said roof was so near to the face of the wall of the coal where plaintiff had to perform his duties in cutting the same with said machine, that it could not be posted or propped, and made safe, by the plaintiff while performing his duties in cutting the same; that said machine with which plaintiff had to work was eight (8) or ten (10) feet long and had to be worked across the entire working place; that the defendant knew that said roof was unsafe and dangerous, and knew that the plaintiff could not post or prop the same, for the reasons aforesaid, and that said defendant knew that the plaintiff had abandoned said working place on account of said dangerous condition of said roof, a day prior to the twenty-sixth day of October, 1901; that the defendant on the said twenty-sixth day of October, T901, with the knowledge aforesaid, represented to the plaintiff that it had caused said working place to be inspected, which was its custom to do in said mine, and that said place was reasonably safe for plaintiff to labor therein, and then and there directed and ordered plaintiff to proceed with said machine to work in said place, and relying upon the said representations and assurances of the defendant, and upon the faithful discharge of the defendant to make said place reasonably safe for said plaintiff, though plaintiff had abandoned the same, as aforesaid, plaintiff entered upon his labor at said place, and while engaged therein, a large part of said unsafe and dangerous roof suddenly fell upon him, throwing him upon said coal mining machine, which was then in operation, and by the weight of said slate upon him and the running of said machine, he was greatly and permanently injured by being bruised, cut and wounded upon the head, body and limbs, so that he was for about two months confined to his bed and to his home in great pain and misery, and incurring an expense of about seventy ($70) dollars for medicine and medical and surgical attention, and has ever since been permanently injured on the head, in the breast, back, right arm, hip, and left leg at the knee, and his ability to labor and his earning capacity have been greatly injured and lessened to his damage in the sum of ten thousand ($10,000) dollars.
    Plaintiff says that the defendant knew, or by the exercise of reasonable care, could have known, that said roof was unsafe and dangerous, and with said knowledge, carelessly and negligently assured and represented to plaintiff that said roof was safe and not dangerous, and carelessly and negligently ordered plaintiff to work at said place, and carelessly and negligently failed to make the same reasonably safe by removing said slate, as was its duty to do, as hereinafter stated, and thereby or by one or more of said negligeneies, caused plaintiff the pain, injuries and damage, as above set forth.
    Plaintiff says that on the twenty-fourth day of October, 1901, and for a long time prior thereto, that the roof, commonly called “draw-slate,” in the said Old Orchard Mine, frequently became loose and fell as soon as the coal was removed from under the same, and the defendant with full knowledge of the same, agreed with all of its employes, including the plaintiff, to remove from eaeh of said working places daily, the loose slate, commonly called “draw-slate,” and the removal thereof by the defendant, was part and parcel of the contract of employment existing between its employes, including the plaintiff, and the defendant; and the plaintiff says that the loose and dangerous slate in said working place was “draw-slate,” and for the purpose of carrying out said contract, the defendant on the twenty-sixth day of October, 1901, and for a long time prior thereto, caused said working place or places to be inspected each day, before its employe or employes entered their respective working places, for the purpose aforesaid. And on the twenty-sixth day of October, 1901, plaintiff relied upon said inspections and relied upon the representations made by said defendant at the time, that said working place was safe.
    Plaintiff says that he was without fault *or' negligence on his part.
    Wherefore, plaintiff prays judgment against the defendant in the sum of ten thousand ($10,000) dollars.
    A demurrer to the petition was sustained in the court of common pleas. Its judgment was reversed in the circuit court.
    
      
      Mr. Fred L. Rosemond, for plaintiff in error,
    cited and commented npon the following authorities:
    
      coal Co. v. Clay, 51 Ohio St., 550; Lawson, Law of Usage, sec. 183; Coal Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievenard, 53 Ohio St., 59; Van Duzen Co. v. Schelies, 61 Ohio St., 298; sec 6871, Rev. Stat.
    
      Mr. Robert T. Scott, for defendant in error,
    cited and commented upon the following authorities:
    
      Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298; Street Railway Co. v. Sweeney, 4 Circ. Dec., 11; 8 C. C. R., 298; Street Railway Co. v. Mammett, 6 Circ. Dec., 245; 3 C. C. R., 591; Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542; Coal Co. v. Estievenard, 53 Ohio St., 43; Hall v. State, 20 Ohio, 7; Denbow v. State, 18 Ohio, 11; Shultz v. Cambridge, 38 Ohio St., 659; White v. Woodward, 44 Ohio St., 347; sec. 6871, Rev. Stat.
   Shauck, J.

It is said by counsel for plaintiff in error that the original petition does not state a cause of action because the plaintiff seeks to recover for neglect by the Company of the duty of taking care of the roof of the mining room under his control, which duty section 6871, Revised Statutes, imposed, not upon the Company, but upon him. That view of the subject was taken in the court of common pleas in accordance with the doctrine of the Coal and Mining Co. v. Administrator of Clay, 51 Ohio St., 542, where, for reasons which need be neither" repeated nor extended, it was held that the policy established by this and related sections of the statute looking to the safety of those engaged in mines imposed the duty which was neglected in the present case upon the miner in control of the room, and that the duty thus imposed upon him cannot he shifted to another.

The judgment of reversal rendered by the circuit court is said to be consistent with the case cited since the present case should be regarded as excepted from the operation of the statute because of the impracticability of propping the ropf of the room under the plaintiff’s control, the averment in that regard being: “that said unsafe and dangerous condition of said roof whs so near to the face of the wall of the coal where plaintiff had to perform his duties in cutting the same with said machine, that it could not be posted or propped, and made safe by the plaintiff while performing his duties in cutting the same; that said machine with which plaintiff had to work was eight or ten feet long and had to be worked across the entire working place. ”

The statute contains no term suggesting the intention that there should be an exception to its operation because of the presence of such conditions as are alleged. To introduce such an exception by construction would be an obvious attempt to avert the consequences of a supposed oversight on the part of the legislature; and the departure from safe rules of construction would not be excused by considerations leading to a clear conviction that the legislature did not deliberately intend to include the case presented within the provisions of the statute. The facts alleged to show that compliance with the statute was impracticable do not show more than that compliance with its provisions would have been attended with some inconvenience. For aught that appears, it would have been quite practicable either to remove from the roof of the room the slate which constituted the source of the danger or to prop the roof and continue to mine with hand tools to such an extent as the presence of the props might have made necessary. To introduce the suggested exception would he the abrogation, rather than the construction, of the statute.

If inquiry should he extended beyond the requirements of the statute and the doctrine of the case cited, it might lead to the discovery of further reasons to justify the judgment of the court of common pleas. The petition shows that before the plaintiff sustained his injury he had actual knowledge of the dangerous condition of the roof and that he continued in the place of peril for no other reason than that the place was regarded as safe by one whose experience and knowledge upon the subject may have been less than his own.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.  