
    CHARLESTON.
    Berns v. Graston Gas Coal Co.
    Submitted June 13, 1885.
    Decided December 5, 1885.
    1. A declaration by a servant against his master for injury caused by the explosion of fire-damp in a coal-mine need not with particularity state the acts of omission or commission, which constituted the negligence of the master : if it is specific enough to inform the master, of what he is called upon to answer, so that he will not be surprised at the trial, it is sufficient, (p. 288.)
    2. If the facts stated in the declaration show, that the .plaintiff was guilty of negligence, which immediately and directly contributed to produce the injury, the declaration is fatally defective; but contributory negligence need not be negatived in a 'declaration. (p. 290.)
    3. When a servant enters into the employment of a master, he assumes all the ordinaryrisks incidentto the employment, whether the employment is dangerous of otherwise, (p. 300.)
    4. The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances ; but he is not obliged to take) more care of his servant, than he would be expected as a prudent man to take of himself, (p. 300.)
    5. If a servant wilfully encounters dangers, which are known to him or are notorious, the master is not responsible for an injury occasioned thereby, (p. 300.)
    6. The measure of care, which a master must take to avoid responsibility for injury to his servant, is that, which a person of ordinary prudence and caution would use, if his own interests were to be affected, and the whole risk were his own. (p. 300.)
    7. Negligence and ordinary care are correlative terms. What constitutes ordinary care depends on the circumstances of each particular ease. It is such care as a person of ordinary prudence would exercise under the circumstances, (p. 300.)
    S. If the master has been guilty of negligence in failing to procure suitable appliances or machinery for carrying on his business, and injuries result therefrom to his servants ; he must respond in damages, unless the servant well knowing the default of the master in this respect enters upon the employment or continues thereinafter such knowledge, in which case he assumes the'increased risk and can not hold the master for the consequences; but if the servant knows the defect or danger and has reasonable grounds to believe, that the master has cured or would immediately cure the same, he is not guilty of negligence by remaining in the service and may recover for inj ury caused by such negligence of the master, (p. 300.)
    9. The master is not bound to furnish for his workmen the safest and best machinery nor to provide the best methods for the work, in which he is engaged, in order to save himself from responsibility for injuries to his servant. If the machinery and appliances, which he has, be in common use and are such as can with reasonable care be used without danger to the employe, it is all that can be required of the employer, (p. 300.)
    10. The owner of a coal-mine is not required to resort to the most expensive methods for keeping his mine free from fire-damp in order to escape responsibility to his servant working in the mine for injury caused by an explosion oí fire-damp. If he has reasonably safe methods in use for the proper ventilation of the mine and uses reasonable care to keep the mine properly ventilated and the fire-damp expelled therefrom, he will not be responsible. He is not held to extraordinary care. (p. 300.)
    11. If the proprietors of a coal-mine have been negligent in permitting fire-damp to accumulate in their mine, which will not produce any injury until ignited, and it be ignited by a fellow-servant, who goes into the dangerous part of the open mine with a lighted lamp instead oí a safety-lamp contrary to the orders of the proprietor of the mine, and by such lighted lamp the ./ire-damp is ignited and exploded, by which a servant is injured, such explosion and injury having been directly and immediately caused by the act of the fellow-servant and not by the negligence of the master, the master under the circumstances can not be held responsible for such injury, (p. 305.)
    
      A. F. Raymond for plaintiff in error..
    ,/. W. Mason and ,/. Bassel for defendant in error.
   Johnson, Pkesident :

Charles Berns, an infant, by Charles Berns, bis next friend, brought an action on the case in June, 1881, in the circuit court of Marion county against James O. Watson, A. Brooks Fleming and James Boyer, partners doing business as the Gaston Gas Coal Company. There were three counts in the declaration, to which declaration and to each count thereof the defendants demurred, and the court sustained the demurrer as to the first count and overruled it as to the other two counts. We will not examine the first count. The second and third counts, which are substantially the same, alleged in substance that the defendants were owners of a certain coalmine in the county of Marion and were digging coal therefrom, The counts with considerable particularity described the mine and averred, that in said mine “large quantities of fire-damp, gases, fumes and vapors collected in and remained in said mine in said main drift or heading and in said lateral drifts or rooms, so that the safety of the lives and limbs of persons serving the defendants in and about their said coal-mine and while in such service going into said main drift or heading and into said lateral drifts or rooms was dependent upon the care, with which the said mine and the said main drift or heading and the said lateral drifts or rooms were ventillated and made free from said fire-damp, gases, fumes and vapors, whereof the defendants had full knowledge, whereby it became the duty of the defendants for the safety of the persons so serving them to have the said coal-mine and the said main drift or heading and the said lateral drifts or rooms carefully ventillated and made free from said fire-damp, gases, fumes and vapors.” The declaration alleges that on March 27,1880, plaintiff was-in the employment and service of the defendants in said mine driving mules, hauling coal out of said mine on a tram-road, and it became necessary for him as such servant to go into the main drift or heading and into the lateral drifts or rooms ; that it was the duty of the defendants to have said mine, main drift or heading and lateral drifts or rooms well ventilated and free from said fire-damp, gases, fumes and •vapors; that while he was thus engaged in the service of the defendants on March 27, 1880, by reason ot the carelessness and negligence of the defendants in permitting the said firedamp, &c., to be and remain in said mine, the said fire-damp, &c., exploded with great power and violence and ignited and burned with great heat, by means whereof the plaintiff was greatly burned, wounded and bruised on both of his hands and on the back part of his head and was otherwise injured and was crippled and lost the use of his hands, &c. He laid his damages at $5,000.00.

The demurrer being overruled the defendents, "Watson and Fleming, who had been served with process pleaded not guilty. The judge of the circuit court of Marion count}' being so situated as to render it improper for him to preside at the trial, by consent of parties the case was removed to the circuit court of Taylor county lor trial. On August 8, 1883, the trial was commenced and continued from day to day until August 9, when a verdict was rendered against the defendants for $2,000.00 damages. The defendants moved to set aside the verdict because contrary to the law and the evidence and because of after-discovered testimony. The second ground was supported by affidavits. The motion was overruled. Three bills of exceptions were taken to the rulings ot the court, the first and second to the admission of evidence, and the third, which certifies all the evidence, to the refusal to set aside the verdict and grant a new trial.

To the judgment the defendants,Watson and Fleming, obtained a writ of error with supersedeas.

The first error assigned is overruling the demurrer to the second and third counts of the declaration. While it is true, as the counsel for the plaintiffs in error insists, that the object of the declaration is to set forth the facts, which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury, who are to ascertain the'truth of the allegations, and the court, who is to pronounce judgment, yet it is equally true, that in an action for negligence the declaration need not state with particularity the acts of omission or commission, which constituted the negligence or wrong. (Hawker v. R. R. Co., 15 W. Va. 628.) In that case the court said:

“There was no necessity for the declaration to specify the acts of omission or commission which constituted the negligence of the defendant. * * The degree of certainty required by the rules of pleading was met by the allegation, that the defendant negligently, carelessly and wrongfully caused a train of cars on its railroad to be propelled and driven upon the fat cattle of the plaintiff whereby three of them were killed, and seven.others greatly bruised and injured. It is neither usual nor necessary to specify the acts or omissions of the defendant which constitute the negligence. This is matter of proof and need not be specified in the declaration. It was not specified in the declarations in the cases of Blaine v. The C. & O. R. R. Co., 9 W. Va. 252, and Bayler v. The B. & O. R. R. Co., 9 W. Va. 27.”

In B. & O. R. R. Co. v. Whittington’s Adm’r, 30 Gratt. 805, cited by counsel for plaintiff in error it was held, that in an action for damages against a railroad company a count in the declaration, which after setting out, that the defendant was working a railroad in the county with engines and cars for carrying passengers and freight, alleged, that on a day named, the defendants conducted themselves so carelessly, negligently and unskilfully, in the operation of their said business, as to inflict upon W. (plaintiff’s intestate) severe bodily injuries by reason whereof he did on June 28 die,” is defective in not stating, where the deceased was, or how he was injured. Staples, judge, in delivering the opinion of the court in holding said count bad, forcibly said :

“ Now whether the plaintiff’s intestate was at the time a passenger on the train and received his injuries as such, or whether he was an employe of the company, and was injured while engaged in their service, or whether he was a stranger crossing the track of the company’s road, or whether he was on the track at all, or in the cars, or at a station, or in what manner he was injured the declaration does not inform us. It was impossible for the defendants to learn from this declaration the ground upon which plaintiff was proceeding. The declaration amounted to an averment simply, that the plaintiff’s intestate was injured by the negligence of the defendants, in the operation of their business in using and employing their engines and cars on their railway.”

The declaration here is not subject to such criticism. The plaintiff clearly informs the defendants, where he was when hurt, to-wit: in their coal-mine; what he was doing, to-wit : hauling coal for them ; who he was, to-wit: one of their servants in their employment; by what means he was hurt, to-wit : by an explosion of fire-damp or gas in said mine, which explosion was the result of their carelessness and negligence in not keeping said mine free from said explosive gas, as it was their duty to do. I do not see why he should be required to be more explicit. He’’has informed the defendants of enough to put them on notice of their proper defence. That is, to show that the explosion was not the result of their negligence; that they had done all that reasonable and prudent men could be expected to do, to avoid such explosions; or that the injury occurred directly from the negligence of the plaintiff or was the immediate result of the negligence of a fellow-servant of the plaintiff unmixed with any negligence on their part.

It is suggested, that the said two counts in the declaration are fatally defective, because they show on their face contributory negligence ¡Hn the plantift; that they show he must have had knowledge that th& fire-damp was in the mine, and that it was dangerous to go in there.

If the declaration shows such a state of facts, from which it would necessarily follow that the plaintiff-was guilty of negligence, whieh directly and immediately contributed to his injury, there can be no doubt that it is fatally defective. (Dimmey v. R. R. Co., supra, p. 32.) Robinson in vol. 4. p. 860, of his practice has a form of a declaration by a servant against his master for injury from the fall of a defective scaffold, which alleges that the scaffold “by reason of the negligence and default of the defendant was and remained constructed very unsafely and insecurely and in such a defective, rotten and improper state and condition as to render it dangerous to remain upon the same for the purpose of doing the work which defendant then well knew, but whereof plaintiff was wholly ignorant) and in consequence thereof, while plaintiff was so engaged and employed, a part of the scaffold broke gave w'ay and plaintiff was precipitated to the ground and his thigh was thereby fractured, &c.” This description of the imperfect scaffold, it seems to me, is as strong to show, that the servant must have known it was unsafe, as the description in these two counts of the declaration is to show, that the plaintiff must have known that the mine was unsafe. But it may be said, that in the form referred to his knowledge was negatived. That is not necessary. If he had knowledge, he is guilty of negligence in exposing himself: but it is not necessary in a declaration to negative the fact, that the plaintiff was guilty of contributory negligence; contributory negligence is purely matter of defence. (Sheff v. Huntington, 16 W. Va 307) It seems to me the said two counts are good, and the demurrer to each was properly overruled. „

Before considering the other points raised by the assignments of error, let as see what the evidence in this case tends to disclose. It shows that the defendants were the owners and proprietors of a coal-mine and were operating the same. The mine was entered not by a perpendicular shaft, but the opening went into the side of the hill. From the entrance to where the plaintiff was hurt was about 200 yards. On February 18, 1880, Woody, a miner, was hurt by an explosion of gas or fire-damp near the same place where plaintiff was hurt by the same kind of an explosion, on March 27, 1880. The proprietors knew of the first explosion and had given orders not to go into that particular part of the mine without using the safety-lamp. It is not shown that the plaintiff, who was a boy about fourteen years old, had received any such instructions or knew anything about the former explosion. On the day of the explosion when plaintiff was injured, Reese and Work, miners, went into the mine and were both killed by the explosion. Van Sickle says he told Reese before ho went in, that “he would have hot work, if he went in there.” “We miners mean by ‘hot work,’ it was too hot to work.” Hamrick and Jenkins, two other miners, had been working in that heading the same day the explosion occurred. They had lights on their caps. The explosion was about an hour after Jenkins aud Hamrick went out. The air was bad when they came out. It is not certain but probable, that Work and Reese did not take a safety lamp into the mine but took their ordinary mining lamps on their caps. The mine was ventilated by means of a boxing to admit fresh air, that is, by boards about a foot wide nailed together making an aperture of ten by twelve inches. The means used for ventilation was as good as that by some other mines in the county. It is shown by the evidence, that the foul air could be expelled from a mine; and that after the explosion, the heading was driven through to the open air, making a current which very much improved the ventilation. One witness, W oody, who had been a miner for twenty years and had been injured in February before, said :

“ We had a furnace and box fixed to draw the air. Furnace draws the air through and creates a draft by drawing the bad air out. The furnace stood at the out-crop of the coal and had the box for flue upon the hi]]. We had a furnace when running the long drift. At the time I was burned, the furnace was not in use. The furnace was destroyed and they were using the boxing in the heading T was in. The boxing was inside the heading but no furnace; if there was any air, it come in through the boxing to the face of the heading and went out through the drift. * * The ventilation was in bad condition at that time at that place, I consider. It could have been improved by forcing air into it in some way or other. Air can be forced in by a steam engine with a cylinder. I don’t know of any way of forcing air except by machinery of some kind. I never saw air forced in mines by machinery, but I have seen air forced into blast iron furnaces for making iron.”

The testimony of William Nannie, a Scotchman, who had been a miner for fifty years, shows that fire-damp is lighter than air and can be safely detected with the safety-lamp; that it sometimes explodes within the gauze of the safety-lamp; that it will not explode unless mixed with from five to ten times its volume of air. If mixed with less than five, or more than fifteen volumes of air it will not explode. When once found to exist, a man ought to go through the mines every morning with the safety-lamp and examine every room and heading and air-courses and see that all is right. It should be done in the morning, because the mine has been idle all night. If danger is found, no nobody should go in, and there should be a cross-cut made or something to drive it out. He went into the Gaston mine with a safety lamp shortly after the explosion, went almost up to where the dead man was found, but there was so much “after-damp,” he could not see. It was too soon after the explosion. “After-damp” is one of the products of the combustion of fire-damp. The mule was dead, (that is, the mule which plaintiff was driving.) Gould not see anything about the appearance of the mine. There was too much vapor to see anything. Mines are ventilated according to location; .but means of ventilation depend on its location. No two mines can be ventilated in the same way. If going up a long heading, he would take the air right straight in along one.side or the other, and do it in various ways. There are a dozen ways of doing it. It can be done with a box, or canvas, or brattias, or rift inside the coal, or with modern fence or gangway. The box is started from where the air is good, from the main inlet. A box is a'good way of ventilating a rising shaft, if it is big enough. Never formed any opinion of this mine.

There was much more evidence on the subject of the ventilation of mines.

Minear testifies that he was the pit “boss” at that mine for about six years before the explosion; that on the morning of the explosion he was in the heading where it occurred, and put on a section of air-box. The condition of the air was as good, as far as he could see, as it ever was before. They had a Davy safety-lamp, -which the company had provided, and the instructions were, that anybody going into that heading was to take the safety-lamp and examine the air, and if there was axiy danger, they were to come out and not stay there. Have seen in that heading some little signs of gas may be once a week, or may be once a month, for over possibly six months. Thinks he told Watson, one of the defendants, about it six months before.

The plaintiff in his evidence says : “I was sent in by the time-keeper, Anthony Yan Sickles, to the room of Joseph Dougherty •for a load of coal. It was about three o’clock in the afternoon. I knew where the explosion occurred; it occurred on the same heading I was on at the time. I could not see where it occurred. I could not see the end of the heading because it was crooked. The explosion went like lightning; 1 couldn’t tell nothing. I wasn’t up there that day. I don’t know what was in the way. I was right at the switch going into the cross-cut, twenty-five yards or less from where Dougherty was working in a cross-cut. I was burned on both my hands and head. (Witness showed his hands to the jury.) My hands were as good as yours or anybody else be-fox-e the injury. The back of my head was burned some ; my eai’s. I was driving car and mule. I don’t know what became of the car. The mule died before they got it out of there. I can’t tell what became of me for some time after I was hurt. I was knocked down. When I came to myself I was inside pulling off my clothes. I started to go to the next room. 1 found myself outside next.”

I have not pretended to give all or even all the substance of the evidence, but only sufficient to enable us to make our ojDinion intelligible.

What is the liability of a master for the injury to his servant by his neglect? The terms negligence and ordinary care are correlative terms. What constitutes ordinary care depends on the circumstances of each particular case. It is .such care as a person of ordinary prudence would exercise under the circumstances. (Railroad Co. v. Ownsby, 30 Gratt. 455.) The measure of care against accidents, which one must take, to avoid responsibility is that, which a person of ordinary prudence and caution would use, if his own interests were to be affected, and the whole risk were his own. (Nitro-Glycerine case, 15 Wall. 524.)

In Lansing v. Railroad Co., 49 N. Y. 521, it was decided, that the duty of the master to the servant is to furnish proper, perfect and adequate machinery or other material and appliances necessary for the proposed work and to employ skilful and competent fellow-servants, or to use due and reasonable care to that end.

In Gibson v. Railroad Co., 46 Mo. 163, it was held, that the legal implication is, that the employer will adopt suitable instruments and means, with which to carry on his business. It he fails to do so, he is guilty of a breach of 'duty under his contract, for the consequence of which in justice and sound reason he ought to be responsible.

Spielman v. The Fisher Iron Company, 56 Barb. 151, was an action brought against a corporation by one of its laborers employed in blasting for an injury occasioned by the premature discharge of a blast loaded with a newly invented powder, which he was directed to use by the defendant’s foreman or superintendent. The complaint alleged, that the company furnished the powder for use in its ordinary and appropriate business ; that its superintendent directed its use by the plaintiff in such business ; that it had never been used as an explosive in blasting and was in fact unfit and unsafe for such use; and that the plaintiff was ignorant of its dangerous properties; it was held on demurrer that a right of action was unquestionably stated; also that the plaintiff under his contract assumed the risk of personal injury in blasting with the ordinary appliances and tor that purpose, but not these risks attendant upon the use of an unusual, untested and exceedingly dangerous article, which could not be tamped without inevitable explosion, which dangerous quality was unknown to him; that it was gross negligence in the company to turnish such an article for the laborer’s use without giving him information in that particular; whether the company was aware of its dangerous quality, or furnished it for use without having taken any steps to obtain such know-ledge.

In Snowden v. Mining Company, 55 Cal. 443, itwms decided, that in an action by an employe for injury incurred in the course of the employment the court below having at the request of the plaintiff instructed the jury, that “the servant assumes no risk, except such, as existed at the beginning of the employment, and such as are incidental to the business,” the court should have added wmrds equivalent to “or which existed during the course of the employment, of which the employe had knowledge or was bound to have knowledge.”

In Johnson v. Brown, 61 Pa. St., it wms decided, that, where an injury happens to a servant in the course of his employment, the master is responsible, if it was caused by his negligence, but if it was the result of the hazardous nature of the employment, he is not liable, unless his negligence was the direct and proximate cause of the injury. An employer does not impliedly guarantee the absolute safety of his employes. In accepting, the latter is assumed to have have notice of all patent risks incidental thereto, or of w'hich he is informed, or of which it is his duty to inform himself, and is assumed to undertake to run such risks.

In Sykes v. Parker, 99 Pa. St. 465, the plaintiff was injured by a fall from a building, wfhich he wms helping to construct, which fall wms occasioned by the removal of certain tackling. The court below7 charged, that, if the defendant caused to be removed a support essential to keep the building in position without notifying the plaintiff, and the plaintiff did not know of such removal, and it was improper to cause such removal, then the defendant was guilty of negligence. Held : This w'as error; the jury should have been instructed, that, if the defendant acted in good faith in directing the removal of the tackle, believing according to the best of his judgment, that there was no danger in so doing, ho was not guilty of negligence. They should also have been instructed, that the omission of the defendant to notify the plaintiff of the removal of the tackle did not constitute negligence, as the plaintiff must be held to have been cognizant of that, which was clearly visible to his sight.

In Coal Company v. Header, 84 Ill. 127, it was held, that under the statute of Illinois the widow was entitled to recover damages for the death of her husband caused by a fire in the mine, which was purely accidental, for the neglect to have a second means of escape as required by the statute. See also Bartlett Coal & Mining Co. v. Roach, 68 Ill. 174, and The Litchfield Coal Co. v. Taylor, 81 Ill. 590.

A workman employed in any dangerous occupation takes it with all ordinary risks. The master is bound to provide for the safety of his workmen, as far asean be reasonably expected, and he must not use any art to conceal dangers, but he is not obliged to take more care of his servant, than he would be expected as a prudent man to take of himself. If a workman reasonably apprehends danger from any particular acts, he -may decline to do them. If he willingly or wilfully encounters dangers, which are known to himself, or which are notorious, the master is not responsible. Thus a coal-owner will not be liable for accidents from explosions of gas found in the due course of working, or from irruptions of water, it ordinary precautions have been taken by him. But a master is bound to protect his workmen against unnecessary risks in works of danger. (Bainbridge on Mines and Minerals, Am. Ed. by G. M. Dallas, 468.)

Is it necessary for a master to have the best machinery in his works, or is it sufficient, that he has machinery and appliances that are reasonably safe ? In Devitt v. Railroad Co., 50 Mo. 302, it was held, that, if the principal has been guilty of fault or negligence either in providing suitable machinery or in the selection or employment of agents or servants, and injuries arise in consequence, he must respond in damages. But when the servant himself well knowingthe default of his principal, as in providing defective or unsuitable machinery, voluntarily enters upon the employment, he assumes the risk and can not bold his employer for the consequences. (Railroad Co. v. Bishop, 50 Ga. 465.)

In Payne v. Reese, 100 Pa. St. 801, it was decided, that an employer is not bound to furnish for his workmen the safest machinery nor to provide the best methods for its operation,in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can with reasonable care be used without danger to the employe, it is all that can be required of the employer.

In Railroad Co. v. Gildersleeve, 33 Mich. 133, it was held, that an employer can not properly be held to be under so strict obligation to his servants, as to be required under all circumstances to make use only of the safest known appliances and instruments, and to be held responsible for any failure to discard what is not such and to supply its place with something better and safer. In that case, the company were using an old mail-car, which was lower than the other cars and more difficult to couple, and the plaintiff’s intestate was killed while attempting to couple such low ear with a higher one. Cooley, C. J., in delivering the opinion of the court said:

“ The car which was the cause of the injury in this case ■ was not in itself dangerous, or unfit for use. In coupling it with other cars peculiar caution was requisite, making it more liable to cause injury than would be a car of more modern construction. Its use therefore made the employment more dangerous than it otherwise would be. In that particular the case may be compared to that of a farmer, who with ■knowledge on the part of himself, and those in his employ, that a horse he has had in use is disposed to be fractious, and unmanageable, continues nevertheless to use him in his business. It may be compared to that of a merchant, who continues to make use of a fluid for light, when something else which is within his reach has been demonstrated by experience to be safer. So far as we can perceive the case of the manufacturer would not be different in principle, who would continue the use of a building which, in the event of a conflagration would subject his employes to greater risks than one of different construction. * * Now any rule on this subject must be a general rule, and not one to be applied to railroad companies alone. It will be perceived that the risk in this case was such, as would effect only the person employed, and that whatever duty was imposed by the circumstances upon any one, could have reference only to such persons. The case is consequently divested of any question except such as would concern the relation of master and servant, and the same rule would govern the case, that would govern were the questions to arise between the farmer, the mechanic or the manufacturer and the persons in his employ. And treating it as a question of such broad application, we do not perceive any ground upon which the plaintiff’s case can safely be planted which comes short of this; that the employer is under obligation to his servants under all circumstances to make use of the safest known appliances and instruments, and is responsible for any failure to discard what is not such, and to supply its place with something safer. Any doctrine so far reaching as this, would be manifestly destructive of the general rule, and would almost make the employer the guarantee of his servants’ safety in his employ. But under any less severe responsibility, it would be impossible to sustain a judgment against this defendant upon the sole ground of a failure to discontinue the use of this car. In any light in which the question can be viewed, no breach of duty can be charged against the defendant, unless it be the duty to make the employment as safe for the persons employed as was possible. Certainly in making use of this car no confidence which was reposed in the prudence and caution of the employer has been betrayed. The difficulties as here stated, were fully known and understood,, and the intestate voluntarily continued to encounter the risk.”

In Leonard v. Collins, 70 N. Y. 90, it appeared, that the servent was killed by the fall of an overhanging portion of a bank of earth, which was being excavated under the direction of the master. It was held error to charge the jury to the effect, that, if the defendant could have done anything which would have prevented the accident, his omission to do so was negligence. The court in its opinion said:

“The court in this case charged the jury that it is the duty of an employer to take all reasonable care of his workmen and therefore if they should find “that the defendant was guilty oí any negligence, omitted to do any thing by which the life of the plaintiff’s intestate could have been preserved he would be liable. It was for the jury to say whether all things considered there was anything which the defendant could have devised to have prevented the accident; whether there was anything in his experience and familiarity with that kind of business which would have suggested to him there was any special danger against which he ought to take special care.”

The defendant at the conclusion of the charge excepted to the following instruction to the jury: “If the defendant could have done anything to preserve the life of the deceased, that he should have done it,” and the judge qualified it by saying, “Perhaps preserve the life is susceptible of criticism. I meant to say anything that could have prevented the accident.” The defendant excepted to the charge as qualified. "We are of opinion, that the judge erred in this instruction. That the defendant could have done something, which would have prevented the accident, can not be doubted. But this was not the test of his liability. The question was: Was he negligent ? Did he exerJ cise ordinary care and prudence in conducting the excavation in view of the position of the deceased, the probable consequences, which would result from the falling of the overhanging earth, while the intestate was below? The error in the charge was calculated to mislead the jury upon a material point, and was not, we think, cured by the other instructions given.”

Man must earn his bread, therefore he must labor. To procure labor, he must of course enter the employment of others. If capitalists were held to be insurers of the lives of those, who enter their service in their various industries whether in operating railroads, in constructing buildings, in various sorts of mining operations, and in all the multifarious ways, by which money is made, these industries would languish, and many more laborers would be out of employment, and the laboring poor would suffer infinitely more than now. Therefore it has been found necessary to adopt reasonable rules, for ascertaining the responsibility of the master for injuries to the servant.

We here state some of the rules:

When a servant enters into the employment of a master, be assumes all the ordinary risks incident to the employment, whether the employment is dangerous or otherwise.

The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances; but he is not obliged to take more care of his servant than a prudent man would be expected to take of himself.

If a servant wilfully encounters dangers, which are known to him or are notorious, the master is not responsible for an injury occasioned thereby.

The measure of care, which a master must take to avoid responsibility for injury to his servant, is that, which a person of ordinary prudence and caution would use, if his own interests were to be affected, and the whole risk were his own.

Diligence and ordinary care are correlative terms. "What constitutes ordinary care depends on the circumstances of each particular case. Tt is such care as a person of ordinary prudence would exercise under the circumstances.

If the master has been guilty of negligence, in failing to procure suitable appliances or machinery for the carrying on of his business, and injuries result therefrom to his servants, he must respond in damages, unless the servant well knowing the default of the master in this respect, enters upon the employment, or continues therein after such knowledge, in which case he assumes the risk and can not hold the master for the consequences; but if the servant knows the defect and has reasonable ground to believe, that the master has cured or will immediately cure the defect, he is not guilty of negligence by remaining in the service and may recover for injury caused by such negligence of the master.

The master is not bound to furnish for his workmen the safest and best machinery nor to provide the best methods for the work, in which he is engaged, to save himself from responsibility for injury to his servant. If the machinery or appliances, which he has, be of an ordinary character and such, as can with reasonable care be used without danger to the employe, it is all that can be required of the employer.

The owner of a coal mine is not required to resort to the most expensive methods for keeping his mines free from fire-damp in order to escape responsibility lor injury to his servants working in the mines caused by the explosion of the fire-damp. Tf he has reasonably safe methods in use for the proper ventilation of the mine and uses reasonable care to keep the mine properly ventilated and the fire-damp expelled theretrom, he will not be responsible. He is not held to extraordinary care.

Any different rule from this last one would be disastrous to mining interests. If every proprietor of coal mines should beheld responsible for all injuries to his servants caused by the explosion of fire-damp, unless he procured all the new and expensive machinery which might be invented to prevent such explosions, the result might be, that a monopoly in mining would be created, because none but heavy capitalists would be able to procure the new machinery.

The first bill of exceptions is to the following questions and answers of the witness, Woody :

“State whether, at the time you were injured at the point you have named, the ventilation of said mine was defective at said point, and whether by any practicable means then known or in use by persons engaged in mining coal the ventilation of said mine at said point could have been improved ?”

Against the objection of defendants the witness' was permitted to answer as follows :

“The ventilation was in bad condition at that time, at that place, I consider. It could have been improved by forcing air into it in some way or other. Air can be forced in by a steam engine with a cylinder. I don’t know any way of forcing air except by machinery of some kind. I never saw air forced in mines by machinery, but I have seen air forced into blast iron fui’naces for making iron.”

And thereupon the plaintiff immediately asked this additional question of said witness :

“State whether there was any other means in use at that time, by which said mine could have been ventilated at such point ?”

Against the objection of the detendants the witness was permitted to answer the question as follows :

“There was no other means only by forcing air in by machinery as I stated. There could have been other means used at that time. They could have forced air in by machinery.”

The defendants excepted to said questions and answers.

All the testimony of this witness up to the propounding of these two questions was made a part of the bill of excep-ceptions by reference to the third bill of exceptions, which certifies all the evidence. With reference to the ventilation he says : “We used means up there by drawing air. We had a furnace and a box fixed to draw the air. Furnace draws the air through and creates a draft by drawing the bad air out. The furnace stood at the out-crop of the coal, and had the box for flue upon the hill. We had a furnace when running the long drift. At the time I was burned, the furnace was not in use. The furnace was destroyed and they were using the boxing in the heading I was in. The boxing was inside the heading, but no furnace. If there was any air, the air come in through the boxing to the face of the heading and went out through the drift.” The witness said he had been a miner for twenty years, and had “never seen air forced in mines by machinery.”

By admitting this evidence the court virtually instructed the jury, that, if the defendant could have so ventilated the mine by forcing in air by machinery, (a process so unusual, that a miner of twenty years experience had never seen it tried,) as to have expelled the fire-damp and kept the mine free therefrom, and thus have prevented the explosion, he was guilty of negligencein failing to do so. IJpon the authorities, which we have cited, and according to reason and the rules, which have been laid down, the admission of this evidence was error to the prejudice of the defendants, for which the judgment will have to be reversed and a new trial awarded.

The second bill of exceptions is, also to the admission of evidence. The witness Iielsley was asked the following question : “What was the condition of that mine, when you quit working there?”

Against the objection of the defendants the witness was permitted to answer :

“The air was bad at that time. There was a right smart of fire-damp at that place and I quit on account of it. I mean by fire-damp, this explosive gas.” To which question and answer the defendants excepted. This witness, as the bill of exceptions shows, had taken Woody’s place in the heading where Woody was hurt by an explosion, about six weeks before plaintiff was injured. No reason is given by counsel, why this evidence was not proper. It seems to me, it is pertinent and proper, as showing the condition of the heading, and to rebut the inference, that there was a sudden accumulation of fire-damp in the mines. It was proper as tending to show the negligence of the defendants.

As the case will have 'to be remanded'for a new trial, we will not speak of the weight of the testimony, as it may be different on the next trial; but as no instructions were asked, and there is no other case in the books, so far as my research extends like this, we deem it proper to discuss another question presented by counsel for plaintiff in error, not as it relates to the evidence in this case now, but as it may relate to it on the next trial; whether, conceding for the sake of the argument, that Work and Eeese, who were killed by the explosion, were fellow-servants of the plaintiff, and that in violation of instructions they went into the heading with their ordinary mininglamps lighted, without takingthe safety-lamp, as instructed to do and thus ignited the gas and in consequence it exploded, killing them and injuring the plaintiff, who did not contribute to the injury, the plaintiff could recover, if the jury believed from the evidence, that through the negligence of the defendants, the fire-damp or explosive gas was in the mine ? Of course all these assumed facts were questions for the jury; and if we were considering this question on a motion for a new trial, if there was evidence tending to prove the negligence of the defendants and tending to show that there was no negligence on the part of the fellow-servants, Work and Eeese, the whole question of the responsibility of the defendants would have to be left to the jury. (Johnson v. Brown, 61 Pa. St. 58; Washington v. B. & O. R. R. Co., 17 W. Va. 190.).

In Wright v. R. R. Co., 25 N. Y. 562, it it was decided, that a master is not cbargable for injuries to one servant caused by the negligence of another, on the ground of the unskillfulness of the latter, unless the injuries resulted from such unskillfulness. In Warner v. R. R. Co, 39 N. Y. 468, it was decided, that the only ground of liability of the master to an employe for injuries resulting from the carelessness of a co-employe, which the law recognizes, is that which arises from personal negligence or from want of proper care and prudence in the management of his affairs or in the selection of his agents or appliances, &c.

In Booth v. Railroad Co., 73 N. Y. 38, it was decided, that where the negligence of the engineer of a train in running it is contributory Avith that of the company in not sending a sufficient number of brakemen, and both together cause an injury to an employe, the negligence of the engineer does not relieve the company from liability.

In Cayzer v. Taylor, 10 Gray 274, it was decided, that a master is liable to his servant for injuries resulting from a defect in his machinei’y, although the negligence of a felloAv-servant contributes to the accident.

In Crutchfield v. Railroad Co., 76 N. C. 320, it was decided, that a master is liable for an injury to a servant resulting from the negligence of a fellorv-servant, if the master contributes to the negligence.

In McMahon v. Henning, 1 McCrary C. C. 516, it rvas decided by McCrary judge, that a master is liable for negligence in the use of defective machinery, whereby his servant was injured, although the negligence of a fellow-servant contributed to the injury. There is nothing contrary to this view in Washington v. B. & O. R. R. Co., 17 W. Va. 190, or Faucet v. R. R. Co., 24 W. Va. 755. In both these cases it was held, that the cause of an injury in contemplation of la\A' is that AA'hich immediately produces it as its natural consequence, and therefore, if a party be guilty of an act of negligence, which Avould naturally produce an injury to another, but before such injury results, a third person does some act, AAffiich is theimmediate cause of the injury, such third person is alone responsible therefor, and the original party is in no degree responsible therefor, though the injury could never have occurred but for his negligence. The casual connection between the first act of negligence and the injury is broken by the intervention of the act of a responsible party, Avbich act is inlaw regarded as the sole cause of the injury.

In the cases, which I have cited from other States, the two causes together, the negligence of the master and the negligence of the fellow-servant, caused the injury to the servant. If therefore it appears, that the proprietors of a coal-mine had been negligent in permitting fire-damp to accumulate in their mine, which would not produce any injury until ignited, and if it were ignited by a fellow-servant, who went into the dangerous part of the mine with a lighted lamp contrary to the orders of the proprietor of the mine, and by such lighted lamp the fire-damp was ignited and exploded by which a servant was injured, such explosion and injury would be directly and immediately caused by the act of the fellow-servant and not by the negligence of the master, and the master under these circumstances would not be responsible for such injury. We do not say that these were the facts. It may be that those, who went into the mine, did not take lighted lamps, and that the gas was ignited in some other way. It may be, that the mine “ boss” had not done his duty in exploring the mine with the safety-lamp to discover the presence of gas; and it may be that no order had been given not to enter that part of the mine without talcing the safety-lamp ; all these are questions for the jury as to the manner in which the explosion occurred.

It is unnecessary to consider the affidavits as to after-discovered evidence.

For the erroi’s pointed out the judgment is reversed with costs, the verdict of the jury set aside, and the case remanded for a new trial.

Skyder, Judge:

I am of opinion that the declaration in this case is too general as to the facts, which, it is claimed, constitute the negligence, which, the plaintiff alleges, caused the injury. I also think that it is demurrable, because it sets out facts, which tend to show negligence on the part of the plaintiff While it is not ordinarily necessary in actions of this character to negative negligence on the part of the plaintiff, still where the declaration does state facts, which tend to show such negligence, it ought to allege, that the plaintiff was without fault.

Reversed. Remanded.  