ating said drill in said Glory Hole, pursuant to the directions and instructions of the defendant, there broke off and fell from the bank or side of said Glory Hole a large quantity of rock or boulders directly above the plaintiff, which said rock and boulders struck plaintiff, hurling or knocking him to the bottom of said Glory Hole, a distance of about 90 feet, crushing and breaking plaintiff's left foot and leg, and breaking and crushing plaintiff's jaw, and disfiguring his face and otherwise injuring him; that the injury of the plaintiff was received without any negligence or fault of the plaintiff, and solely through the negligence and want of care of the defendant.

The answer admits that plaintiff was engaged in operating a machine drill in the pit in defendant's mine; denies that the place where the plaintiff was working was a dangerous, unsafe, or unusal place to work, or that there were any such dangers connected therewith except such as were inherent in the character of the work, and well known to all the employés of the defendant working in said mine, including the plaintiff; denies that the place where plaintiff was at work was rendered more dangerous by reason of any slide a short time previous to the accident to the plaintiff, and denies there was any such slide at all, as alleged by plaintiff; denies that the walls of said pit immediately over and above where plaintiff was at work were broken, loose, and shaken, and liable to give way; denies all the allegations of negligence on the part of the defendant alleged by the plaintiff; denies that there broke off and fell from the bank or side of said Glory Hole or pit a large quantity of rock, earth, and boulders from directly above plaintiff, which struck plaintiff and hurled him to the bottom of said pit; denies that plaintiff was injured to the extent alleged; that in truth and in fact plaintiff was struck by a single small piece of rock, which was by plaintiff's own negligence al

lowed to fall upon him, and he was slightly injured thereby; denies plaintiff was permanently or seriously injured or his ability to earn a living permanently impaired; denies that plaintiff could ordinarily earn the sum of $3.50 per day, as alleged, or any sum greater than $2.50 per day, but admits that by working in said pit and assuming the risks inherent in said work plaintiff could earn $3.50 per day; denies that the injury complained of was received without fault or negligence on the part of the plaintiff, and alleges that whatever injury plaintiff received was due solely to his own want of ordinary and proper care in guarding against well-known and obvious dangers and disobeying the rules and instructions formulated by defendant to protect its employés against accident such as that by which the plaintiff was injured; and further denies that the accident complained of was caused in any manner by the negligence of the defendant; denies that plaintiff has been damaged in the sum of $20,000 or at all.

The evidence in this case having been concluded on the part of the plaintiff, the defendant moved the court to instruct the jury to return a verdict for defendant on the ground, among other things, that the evidence on the part of the plaintiff was wholly insufficient to sustain a finding of negligence on the part of the defendant, and on the further ground that the plaintiff's own evidence shows it was the duty of the plaintiff, in common with all employés of the defendant operating a machine drill, to look out for and attend to the safety of the ground where they were at work, and therefore, if plaintiff was injured in the manner claimed by him, it was due to his own neglect and failure to perform his duty. It was further urged that plaintiff was familiar with all such dangers as that by which he was injured and which were inherent in the nature of the work he was engaged in; that he voluntarily sought such work

for the purpose of securing the increased wages, and remained in said employment well knowing the dangers inherent therein, and thereby assumed the risk of all such dangers.

It is urged in argument that the rules of the company, which had been interpreted to the plaintiff and properly posted about the mine, required each person operating a machine drill to make examination of the ground, and themselves determine the danger or safety of the place where they were to work. At the time the rules were not in evidence, and the court was without any knowledge of the same, except a very imperfect statement of what the plaintiff conceived them to be. It was claimed in argument that, inasmuch as the plaintiff was required to examine such conditions as existed as to whether the place in which he worked was a safe place, if he had failed in the performance of that duty, and had received injury thereby, it resulted clearly from his own negligence and carelessness. The court was of the opinion that the question as to the plaintiff having been made responsible for the conditions under which he worked, and having been required to determine for himself as to the safety of the place and the conditions around him under the rules of the company, was not then fairly raised or presented to the court for its consideration. The court therefore denied the defendant's motion. The defendant then put in his testimony, and, after all the testimony was in on both sides, filed a new motion, based practically upon the same grounds as the motion filed at the conclusion of plaintiff's main case. The motion has now been argued at great length by both sides and many authorities cited.

W. E. Crews, for plaintiff.

Maloney & Cobb, for defendant.

BROWN, District Judge. In approaching a discussion of the questions involved in the motion I may say the law affecting the right of the servant to recover for personal injuries sustained while in the employ of the master seems. to have traveled in no uncertain pathway from the days of the old English Case of "Van" down to our own time. The general principles applicable to this class of cases have been long settled, and at this day there is practically no diversity of opinion among courts and law-writers in respect to them. But in the application of well-settled principles to the varying facts of different cases there is found a wide divergence. In the effort of courts to apply a principle to variant facts in order to mete out justice in each particular case as made by the evidence, the principle is sometimes whittled away until there remains only a diminutive point.

Nevertheless, in surveying the whole field of the law upon this subject, one is often filled with a sentiment of wonder and admiration for the courts of last resort of our own and other countries, who have succeeded, by their great learning, wisdom, and broad good sense and judgment, in meeting the demands of justice through the ever changing conditions of human society growing out of new inventions in machinery and appliances and the new methods of work and employment.

This question is now fairly before the court for its determination: Do the rules of the defendant company requiring the men operating machine drills to examine conditions around them, and determine for themselves the question of danger or safety of the place where they work, add additional burdens to the duty of the employé beyond those ordinarily required in the performance of like duties? Is the defendant by the adoption and posting of such rules relieved of any duty otherwise required of it toward its servant, and may the master relieve himself of the duty to

wards his servant to furnish an ordinarily safe place in which to work, considering the circumstances and nature of the employment, by formulating and publishing rules? There is also the further question presented under the evi dence as it now stands as to whether the dangers to which the plaintiff was exposed and through which his injury came were or came within the terms of his contract of hire? it being understood, of course, as a proposition of law, that the servant assumes all those risks necessarily incident to the employment upon which he enters; and further, was the injury, if any, the result of contributory negligence?

The rules of the company are in part as follows: (1) Each man must ascertain that the particular place in which he is employed is absolutely safe. If found to be in an unsafe. condition, measures must be taken to remove such danger at once, and, if necessary, the foreman or shift boss must be notified. (2) When returning to a place after a blast has been fired, the first employé to enter such place must make a careful examination for any loose rock or other element of danger, and if any such be found he shall immediately make it safe.

These rules are proper, and valuable in calling the attention of the workmen to their duties, and clearly notify them of the necessity for an examination of the conditions around them, to determine whether the place in which they are at work is safe or otherwise. It implies, at least, that reasonable time shall be used by the employé to examine, from time to time, the changing conditions around him, and to see to it that he is exposing himself to no needless risk or danger. It is believed that these rules impose some additional burden upon the employé, but they do not in any wise, in the opinion of the court, relieve the defendant company from its obligation to furnish its servant a reasonably safe place in which to work. The obligation