
    Kelly & Sons v. Howell.
    1. Where there is evidence tending to prove negligence on the part of the defendant, and also evidence from which the proper inference to .be drawn as to fault on the plaintiff’s part is doubtful, it should be submitted to the jury to determine whether the plaintiff was injured by his own fault or that of the defendant.
    2. A contractor agreed with the owners of a mine to do certain work therein, the owners engaging to furnish and put up such props or supports for the roof of the mine as would render the miners secure, whenever notified by the contractor that the same were necessary.
    
      Held: That although such notice from the contractor may. not have been received by the owners, the owners, if they had actual knowledge that such supports were necessary, became liable in damages to an employe of the contractor, who, without negligence on his own part, had been injured while at work in the mine, through the want of such supports for the roof.
    Error to the District Court of Lawrence County.
    The original action was commenced in the court of common pleas of -Lawrence county, by the defendant in error, John A. Howell, against the plaintiffs in error, William D. Kelly, Lindsey Kelly and Ironton Kelly, co-partners doing business under the firm name of W. D. Kelly & Sons. The petition alleges that the defendants, being the owners and operators of certain mines of iron ore and limestone in the vicinity of Ironton, in said county? engaged and contracted with one David Greathouse to excavate and remove from one of the mines iron ore and limestone therein, the defendants at the same time agreeing and undertaking to do all the “ dead work ” in and about the mine for Greathouse, as a' part of the contract, which “ dead work ” consisted mainly in the protection and care of the mine, so as to protect the workmen therein against danger from the falling of ■the roof or stone covering overhead.
    That Howell, well knowing the premises, and particularly that the defendants had so engaged with and promised Greathouse to do all the “dead work” in and about the mine, and to take such care of the same as would render the miners therein secure, and relying fully upon the good faith, diligence, care and skill of the defendants, with their large experience in working mines, to keep the mine of Greathouse in a safe condition, did, on the 10th day of November, 1880, undertake to mine iron ore and limestone therein, and worked in the same as such miner for Great-house until the 14th day of January, 1881. That the defendants did not use due and proper care, diligence and skill in the protection and care of the mine, but failed and neglected to prop and protect the roof of the room of the mine in which Howell was at work, whereby a portion of the slate over the room became detached, and fell upon him, without any negligence or fault on his part, and inflicted upon him severe bodily injuries.
    The answer denies that the defendants, or either of them, were guilty of the negligence charged in the petition, and alleges that Howell himself, by his own negligence, occurring at the time, caused the injury complained of, or at least contributed to the injury. The answer also denies that by the terms of the contract entered into with Greathouse the defendants, Lindsey Kelly and Ironton Kelly, were in any way connected therewith, or had any interest therein; and alleges that the agreement was made by and between Great-house and William D. Kelly; and that by the terms of the agreement William D. Kelly was to furnish and put up props or posts to support the roof of the mine when notified by Greathouse that the same were necessary, but that no notice that such posts were needed was given to William D. Kelly prior to the injury complained of.
    The answer further denies that the defendants had any ownership or control of the mine in which Greathouse or Howell was mining iron ore or limestone, and denies that they, or either of them, are in way liable to Howell on account of-the alleged injury.
    At the trial in the court of common pleas, Howell gave evidence to the jury tending to maintain the issue on his part, and to prove, among other things, that the defendants owned a limestone and iron ore mine, near Ironton, which was operated by horizontal entries driven into' a hill-side, with rooms on both sides of such entries. That this mine was worked by Greathouse under a contract with William D. Kelly, acting in behalf of Kelly & Sons, that they would do all the “ dead work,” so called, in and about the mine, for Greathouse, as a part of the contract, and would take good care of the roof of the mine and keep it in a condition safe for miners — the said William D. Kelly to furnish and put up props to support the roof when notified by Greathouse that the same were necessary. That Howell, at the time of his injury, was an employé of Great-house, at work in the mine, where he was injured from the failure to prop and protect the roof of the mine, by a portion of the slate over the room in which he worked becoming detached and falling upon him. That the room in which Howell was injured was about 18 feet wide by 80 feet long, with fire clay roof unprotected; that in order to make such roof safe, in a room of that size, posts and caps for the support of the roof were necessary. That William D. Kelly had actual knowledge that props were needed for the support of the roof of the room in which Howell was at work; that he was in the room where Howell was hurt only three days before the occurrence, and his attention was then called to the’necessity, of propping the roof in order to make it safe, and he then promised to furnish and put up the requisite posts or supports. That for the safety of miners it had become the ordinary practice in that mining region to use props and caps for the protection of slate or clay roof. That just before Howell was injured there had been a blasting of limestone with gunpowder in the room in which he worked, and as soon as the smoke had cleared away he entered the room and resumed work, without testing or sounding the roof, to discover what might be the effect of the blasting or explosion as to loosening the slate or clay overhead. It was contended by the defendants that in thus going into the room without the precaution of first testing the roof, the plaintiff was negligent, and contributed to his own injury.
    The plaintiff having introduced all his evidence in support oí his alleged cause of action, and rested his case, the defendants, without introducing any evidence on their part, moved the court to adjudge said evidence of the plaintiff, as matter of law, insufficient to support the plaintiff’s cause of action, and to direct the jury to return a verdict for the defendants, which motion was sustained by the court, and the jury under such instruction returned their verdict in favor of the defendants. Judgment was entered on the verdict; the district court reversed the judgment of the court of common pleas and remanded the cause for a new trial, and this proceeding is now prosecuted by W. D. Kelly & Sons, to reverse the judgment of the district court.
    
      E. V. Dean and W A. Hutchins, for plaintiffs in error.
    
      Ralph Leete, for defendant in error.
   Dickman, J.

In order to maintain his action, it was incumbent on the plaintiff Howell, to prove that he was injured through the fault of the defendants; and he could-not recover for his injury, if he in any degree contributed to it- by his own negligence. But, whether negligence can be imputed to a defendant or contributory negligence to a plaintiff, is generally a mixed question of law and fact, to be submitted to the jury under proper instructions from the court. In a proper case, the court may take from the jury the evidence given by the plaintiff and render judgment for the defendant, or may attain the same end, by-submitting the case to the jury with instructions to return a verdict for the defendant. But, as said in Stockstill v. D. & M. R. R. Co., 24 Ohio St., 83, “if the evidence tends, in any degree, to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the-evidence passed upon by the jury, and it is error for the court to grant the motion, and render judgment against him.” And in an action to recover for an injury, where there is evidence tending to prove negligence on the defendant’s part, and also evidence from which the proper inference to be drawn as to fault on the plaintiff’s part is doubtful, it should be left to the jury to determine, whether the plaintiff was injured by his own fault or that of the defendant. An examination of the record discloses, that evidence was given to the jury by the plaintiff tending to prove that the defendants had been negligent in not securely propping the roof of the mine, and also evidence from which it might be doubtful what inference would be drawn, as to contributory negligence on the plaintiff’s part, in not testing the roof before resuming work in the mine immediately after the blasting with gunpowder. The weight and sufficiency of this evidence, it was the right of the plaintiff, to have passed upon by the jury, and in our opinion, the court erred in withdrawing it from their consideration.

The question arises, whether, if the evidence had been allowed to go to the jury, the relation of the firm of Kelly & Sons to Howell was such, as to preclude their liability to him for the injury he received. Howell was the employé of an independent contractor Greathouse, who had agreed with that firm, through W. D. Kelly, one of its members, to excavate and remove limestone and iron ore from the mine — W. D. Kelly to take personal charge of furnishing and putting up such props, posts or supports for the roof of the mine as would render the miners secure, whenever notified by the contractor that the same were necessary. In the absence of contributory negligence on the part of the employé, Howell, the firm, we think, would be liable to him if he was injured through a neglect to put up the supports requisite for workmen in the mine. Such liability would exist, not by virtue of any privity of contract between Kelly & Sons and Howell, but independently of the contract. The mining work being done through the firm’s own procurement, for their own use and benefit, and upon their own premises over which they retained a superintendence for the miners’ protection, they owed a duty toward the contractor’s servants to keep the premises in a reasonably safe condition. Howell did not go upon the premises as a mere volunteer, but had the right to go there as an employé of the contractor. Kelly & Sons must have known, that the servants or employés of the contractor would be at work in the mine, and they retained within their own control the furnishing of the appliances that would be needed to protect the employés against a falling of the roof. They virtually stepped in between the contractor and his servants, and took the security of the servants into their own hands. As between Kelly & Sons and the contractor, the firm would be exempt from liability to him for their omission to put the necessary props in the mine, if he failed to give them due notice of the necessity of propping the roof. But, though the firm may not have received the notice from the contractor, having assumed the obligation of protecting the miners against danger, they cannot evade their duty toward the ' contractor’s emplojAs, who came upon their premises with the knowledge-and in the confidence that they were to provide adequate safeguards against injury. If Kelly & Sons received no notice from Great-house, still, they were not ignorant of the dangerous condition of the roof under which Howell was engaged in mining. There is evidence tending to show, that W. D. Kelly, the leading member of the firm, had actual knowledge of the unsafe condition of the room in which Howell was working, irrespective of any information which he might derive through Greathouse. He was in the room only three days before Howell was hurt, and personally inspected the roof, and upon being told that it was insecure, promised to have sufficient posts and caps put up. Nor did he rely solely upon the judgment of Greathouse, and the information he was to receive from him, in determining the necessity of propping the roof, for he himself was in the habit of going through the mine and sounding the roof, and relying upon his own judgment and experience, did not hesitate to give his opinion as to the safety of the room in which Howell was injured. The case of Coughtry v. Globe Woolen Co., 56 N. Y., 124, is somewhat analogous in principle to the present one, and is illustrative of the views which we have advanced. Osborne & Martin contracted to put up a new iron cornice upon the defendant’s mill, any-scaffolding required for that purpose to be erected free of cost to them. The plaintiff’s intestate, a workman in the employ of Osborne & Martin, while engaged in putting up the cornice, was killed by the fall of a scaffold erected by the defendant for the purpose of the work. In an action to recover damages, the plaintiff was non-suited, upon the ground that the defendant owed no duty to the deceased in respect to the construction of the scaffold. It was held, however, on error, that the scaffolding being erected by the defendant upon its own premises for the express purpose of accommodating the workmen, a duty was imposed upon it toward them to use proper diligence in constructing and maintaining the structure; and that this duty existed, independently of the contract.

It is contended that'Howell did not file the proper transcript with his petition in error, and that therefore the district court did not acquire jurisdiction over the subject-matter of the cause. From an examination of the record before us, we discover no satisfactory reason for holding, that the district court did not properly have before it all that was necessary to exhibit the error complained of. The jurisdiction of the district court is therefore sustained, and its judgment affirmed.

Judgment accordingly.  