himself, personally or from his subordinates, may or may not be revealed, then such subordinates without his permission cannot be compelled to disclose in court any such matters or information. What then are the duties, powers and privileges of the governor? In the language of the Constitution, article 4, section 2, "the supreme executive power shall be vested in the governor, who shall take care that the laws be faithfully executed." Also same article, section 7: "The governor shall be commander-in-chief of the army and navy of the Commonwealth, and of the militia, except when they shall be called into the actual service of the United States." He is also invested with the appointing and pardoning powers; the power to convene the Legislature in cases of emergency, and to approve or veto bills submitted to him by the General Assembly. It is scarcely conceivable that a man could be more completely invested with the supreme power and dignity of a free people. Observe, the supreme executive power is vested in the governor, and he is charged with the faithful execution of the law, and for the accomplishment of this purpose he is made commander-in-chief of the army, navy and militia of the State. Who then shall assume the power of the people, and call-this magistrate to an account for that which he has done in discharge of his constitutional duties? If he is not the judge of when and how these duties are to be performed, who is? Where does the Court of Quarter Sessions, or any other court, get the power to call this man before it, and compel him to answer for the manner in which he has discharged his constitutional functions as executor of the laws and commander-inchief of the militia of the Commonwealth? For it certainly is a logical sequence that if the governor can be compelled to reveal the means used to accomplish a given act he can also be compelled to answer for the manner of accomplishing such act. If the Court of Quarter Sessions of Allegheny county can shut him up in prison for refusing to appear before it and reveal the method and means used by him to execute the laws and suppress domestic violence, why may not it commit him for a breach of the peace, or for homicide, resulting from the discharge of his duties as commander-inchief? And if the courts can compel him to answer, why can they not compel him to act? All these things, we know, may be done in the case of private individuals; such a one may be compelled to answer, to account and to act. In other words, if from such analogy, we once begin to shift the supreme executive power from him upon whom the Constitution has conferred it, to the judiciary, we may as well do the work thoroughly, and constitute the courts the absolute guardians and directors of all governmental functions whatever. If however this cannot be done we had better not take the first step in that direction. We had better at the outset recognize the fact that the executive depart. ment is a co-ordinate branch of the government, with power to judge what should or should not be

done within its own department, and what of its own doings and communications should or not be kept secret, and that with it, in the exercise of these constitutional powers, the courts have no more right to interfere than has the executive, under like conditions, to interfere with the courts. In the case of Oliver v. Warmouth, 22 La. 1, it was held (per Taliafero, J.), that under the division of powers, as laid down in the Federal and State Constitutions, the judiciary department has no jurisdiction over or right to interfere with the independent action of the chief executive in the functions of his office, even though the act he is required to perform be purely ministerial. This is putting the matter on very high grounds, for in such case no other officer would be exempt from the mandatory power of the judiciary. No case could more forcibly exhibit the extreme reluctance of courts to interfere with the functions of the supreme executive, for the hypothesis put is the refusal of the governor to perform a duty cast upon him by law of a character strictly ministerial. We think however that the ground upon which this decision stands is substantial; for as the learned justice well argued, the difficulty arises in the attempt to establish a distinction between ministerial and discretionary acts as applied to the governor, and then to conclude that the former may be enforced by judicial decree; it is objected however that the doctrine is unsound in this, that it gives to the judiciary the large discretion of determining the character of all acts to be performed by the chief executive; that this would infringe his right to use his own discretion in determining the very same question; that he must necessarily have the unconditional power of deciding what acts his duties require him to perform, otherwise his functions are trammelled, and the executive branch of the government is made subservient to the judiciary. The principle enunciated in the above stated case applies with greater force to what we now have under consideration; for if the governor's discretion may not be interfered with in a matter purely ministerial, much more may that discretion not be interfered with in a case which pertains to his office and duties as commander-in-chief, in the discharge of which the Constitution makes that discretion his peculiar and absolute prerogative. Again, the governor, having a proper regard for the dignity and welfare of the people ot the Commonwealth, is not likely to submit himself to imprisonment on the decree of the Court of Quarter Sessions, or to permit his officers and coadjutors to be thus imprisoned. Were we then to permit the attempt to enforce this attachment, an unseemly conflict must result between the executive and judicial departments of the government. We need not say that prudence would dictate the avoidance of a catastrophe such as here indicated."

1. A subpoena is directed to the governor of a State requiring him to produce in court a certain document. He refuses on the ground that his offi

knowledge of its existence or fault on his part, the plaintiff, in the ordinary course of his business, having occasion to go upon the platform, fell through this new hole a distance of thirty-five feet, and received serious bodily injury. It appears in the exceptions that the written contract with the plaintiff was in the possession of the defendants, but it was not produced by them, and its full details as given by the plaintiff in his testimony should be regarded as proved. The only modification suggested in defense comes from the testimony of the defendants' superintendent to the effect that

plaintiff in his work was under the direction of the superintendent." There was evidence that the ladder-hole was made by direction of the defendants' "superintendent.'

Hereupon the defendants requested various instructions, for the details of which reference may be had to the bill of exceptions, all looking to a finding by the jury that the plaintiff, doing his work under the direction of the superintendent, and being engaged in the general work of carrying on mining in the company's mine, although he was paid by the foot for the work done by him and the men in his employ, was not a contractor with but a servant of the defendants, and so not entitled to recover for an injury caused by the negligence of a fellow-servant. The presiding judge refused the several requests, and said to the jury: "I instruct you as matter of law that if you find the contract as the plaintiff claims it, the plaintiff was not a servant of the defendant corporation within the meaning of the law, and uot a co-servant with the day laborers and servants of the corporation." The defendants reasonably excepted to this instruction and to the refusal of their requests. The exceptions are not tenable.

view of the decisions, some of them irreconcilably conflicting, touching the liability imposed by law upon masters for the negligent acts of servants in their em. ploy, and what constitutes the relation of master and servant in such cases. That has been done not long since in Eaton v. E. & N. A. R. Co., 59 Me. 520; and McCarthy v. Second Parish in Portland, 71 id. 318.

We think it clear that upon the undisputed evidence presented in these exceptious Mayhew was a contractor with the defendants for the performance of this job, and not a servant employed by them, whose services they could dispense with at will, or who could be regarded as assuming any risks arising from the negli gence of the company's servant or superintendent. It was directly held in Eaton v. E. & N. A. R. Co., supra, that the fact that the work was to be done "under the direction of the chief engineer of said company, as required by the contract," did not convert the contrac tors into servants of the railway company, and that fact is all that can be inferred from the testimony of the defendants' superintendent in the present case. Defendants' counsel lay much stress upon the fact that it was part of the regular mining operations that Mayhew was carrying on. But where there is a binding contract for the performance of a specific job by the contractor and those whom he may employ for a price agreed, it matters not, in determining the question whether he who has undertaken such job is to be regarded as the mere servant of the other party, what kind of work was the subject of the contract, or whether it was or was not a portion of the regular work which the party contracting for it is carrying on, or some piece of work incidentally connected with it as necessary or convenient. Such an agreement bears little resemblance to a mere arrangement for the com

by the day. We think the instruction given was correct upon the uncontradicted testimony, and the requested instructions being inconsistent with it, were rightly refused.

A glance at the abbreviated statement of the terms and conditions of the contract above given will show the fallacy of the claim. Here was a job of a certain number of feet of rock and ore to be broken down at a stipulated price, by one who was to furnish and pay his own assistants and find the materials necessary for the performance of the job. The defendants let this piece of work to be performed by a contractor, instead of employing men to perform it. Had this been a suit brought by one of Mayhew's employees to recover for an injury caused by the negligence of one of the men who was operating the steam drill which they were to furnish Mayhew under the contract, it would have quickened the perceptions of the defendants as to what constituted a contract with Mayhew, and they would have confidently claimed exemption from liability upon the ground that the man who was running the steam drill, though paid by them, was not their servant, but pro hac vice the servant of the contractor, and they would have found in Rourke v. White Moss Colliery Co., 2 C. P. Div. 205, an authority in point to support their claim, where the subject and terms of the contract were singularly like those in this case in their general character. Similar in principle are Murray v. Currie, 6 C. P. 24; Reedie v. Railway Co., 4 Ex. 244; Pearson v. Cox, 2 C. P. Div. 369.

This case does not seem to call for an extended re

2. But elaborate discussion of the relations of the parties to each other in this particular seems the more needless, because we are of the opinion that the case falls into that class which requires an employer at his peril to keep his premises and all ways of access thereto free from unknown dangers not naturally or commonly incident to the work to be carried on there, and makes him liable to his servants and employees, as well as to all others who are there by invitation, for the existence of secret pit-falls which he negligently per mits or causes to be made when damages thereby accrue without the fault of the injured party.

In Thompson on Negligence, vol. 2, p. 973, we find the law upon this topic briefly stated as follows: "If the master has failed in his duty in this respect, and the servant has in consequence of such failure been injured without fault on his part, and without having voluntarily assumed the risk of the consequences of the master's negligence, with full knowledge or competent means of knowledge of the danger, he may recover damages of the master."

Numerous cases are cited in support of the doctrine, thus laid down, and among them Buzzell v. Laconia Man. Co., 48 Me. 113; Shanny v. Androscoggin Mills Co., 66 id. 420, in both which, and in cases there cited, it is fully recognized and affirmed. In the full and valuable text book from which the above quotation is made it is well said also (p. 974) that the servant has a remedy against the master when the injury is in con. sequence of the direct negligence of the master or hie vice principal in his personal conduct of the work; and (p. 975) when the carelessness of the master exposes the servant to sudden and unusual danger.

These rules are thus illustrated: "The master may not with impunity expose a servant to dangers not con

templated in his original contract of employment and not connected therewith. Thus the proprietors of an establishment in one room of which about twenty girls were employed, deemed it expedient to remove an engine from one room of the factory to another. Being pressed with business, they made the change in the night-time; and in the morning the machine was left in such a position that the main shaft projected through the wall into this room from four to six feet. In this state the machinery was put in motion. Que of the girls in passing near the revolving shaft about her work was caught by it and injured." The employer was held liable. Fairbank v. Haentzche, 73 Ill. 237.

Now as to what makes a "vice-principal," the generally received doctrine is as stated in Whart. Neg., $229: "When the employer leaves every thing in the hands of the middle-man, reserving to himself no discretion, then a middle-man's negligence is the employer's negligence, for which the latter is liable."

It cannot be questioned that the superintendent of this mine, to all intents and purposes, had this control of the defendant's business there. Applying these principles to the case before us, had Mayhew, instead of being a contractor, been a servant and day laborer in the employ of the defendants, they must still be held chargeable under the circumstances for the act of their superintendent in thus converting a substantial platform in constant and daily use into a dangerous trap, without light, barrier or warning to the plaintiff.

The ruling of the presiding judge was not only correct, but the defendants' contention upon the point to which it related was immaterial, and could not affect the result. Nor could it aid the defendants to avoid their liability in such a case if it appeared affirmatively that the neglect to notify the plaintiff or to guard or light the pit-fall, which was made by the direction of their superintendent on their premises, was the neglect of subordinates, who did the work. The hidden and extraordinary danger which caused the plaintiff's hurt bears little analogy to the obvious perils in Lawler v. Androscoggin R. Co., 62 Me. 463, and Osborne v. Knox & Lincoln R. Co., 68 id. 49, which are cited by the vigilant counsel to support their contention that "the improper construction of the ladder-hole (if it was improper), the want of light or railing, or the want of warning, was the negligence of the superintendent or Stanley, and if it was the negligence of the superintendent the same rule applies."

Created as the danger here was, by the direction of one who quoad hoc stood in the place and stead of the defendants themselves, their reasonable duty was to protect the plaintiff against suffering from it unawares, whether he was a servant or contractor.

3. Defendants' counsel argue that this case "is not within the principle of the cases holding the master respousible to his servant for the neglect of another servant charged with the repairs or keeping in order of buildings or machinery," because it is not a case of a platform made of defective materials or badly put together. They rightly concede that "if the defendants' servant, charged with the duty of keeping the platform in good repair, had neglected that duty or insufficiently performed it, and the accident had resulted from that neglect, the company would have been liable." But they seem to derive consolation and encouragement from the undisputed fact that "the platform was strong, properly built of good materials and in good repair," until this hole was made in it by direc tion of defendants' superintendent. They contend that the negligence which caused the plaintiff's injury was in another mining operation-in the carrying on of the work of the mine. We think that the distinction which the counsel seek to draw as to the charac

ter of the negligence is not available. It was negligence which exposed the plaintiff to a peril, the risk of which he never assumed. It created a danger in a place where a servant had a right to expect safety. It was the negligence of those for whose fault in this particular the defendants were responsible. That it was committed in furtherance of the defendants' mining operations can no more aid the defense here than it did in cases of like negligence in Fairbank v. Haentzche and Berea Stone Co. v. Kraft, supra.

Nor is it of any importance whether the negligence exhibits itself in the form of a chronic remissness, superficial oversight, or positive careless act which introduces unawares a new and serious danger upon premises previously safe. We do not think the scanty protection for servants and employees which they enjoy under the rule should be abridged by mere subtlety of reasoning and verbal refinements of logic. 4. Nor do the instructions given respecting the allowance of damages for the future furnish the defendants any good cause of complaint. As to damages, the defendants' first request for instructions, besides being fully covered in the charge, was emphatically given in terms; and the other requests, in one form or another, all called for a measure of proof which is not appropriate in the trial of civil causes to the jury, and were for this cause rightly refused.

5. The defendants complain because they were not allowed to ask Stanley (who made this hole in the platform, under the direction of the defendants' superintendent, and who testified that he was a miner of twenty-five years' experience, that he had worked in several different mines, and had constructed other ladder-holes, and noticed many more) the following questions:

"Have you ever known ladder-holes at a lower level to be railed or fenced round?"

"As a miner, is it feasible in your opinion to use a ladder-hole with a railing round it?"

"Have you ever seen a ladder-bole in a mine below the surface, with a railing round it?"

Also that they were not allowed to ask one Dugan (who gave similar testimony as to the length of his experience as a miner, and that he had worked in many different mines and observed the ladder-holes in them) this question:

"From your experience as a miner, whether or not this ladder-hole, as Mr. Stanley left it, was constructed in the usual and ordinary manner of ladder-holes in mines, and in a proper way?

Defendants' counsel claim that the favorable answers to these questions which they had a right to expect would have tended to show that there was no want of "average ordinary care" on the part of the defendants. We think the questions were properly excluded. The nature of the act in which the defendauts negligence was asserted to consist, with all the circumstances of time and place, whether of commission or omission, and its connection with the plaintiff's injury, presented a case as to which the jury were as well qualified to judge as any expert could be. It was not a case where the opinion of experts could be necessary or useful. See for analogous instances Cannell v. Insurance Co., 59 Me. 582, 591; State v. Watson, 65 id. 76, 77, and cases there cited. See also Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1905, and note to S. C. Smith's Lead. Cas. (6th Am. ed.) vol. 1, part 2, page 769. If the defendants had proved that in every mining establishment that has existed since the days of Tubal-Cain, it has been the practice to cut ladder-holes in their platforms, situated as this was, while in daily use for mining operations, without guarding or lighting them, and without notice to contractors or workmen, it would have no tendency to