rather than to conditions that might have existed before the blast was fired.

It would seem in this case that there were some dangers peculiar to the place in which the servant was working that he necessarily understood and should have taken note of; that one of these conditions was the liability of the rock upon the wall of the Glory Hole to slip from its place and fall down at various times; that to guard against such dangers required constant watchfulness on the part of the employé. And these rules seem to have been drawn, partially, at least, to call the attention of the employé to this danger, and to so emphasize it that watchfulness in this regard might be constant on the part of the servant. It is in evidence, and the testimony upon this proposition is uncontradicted, that after the benches in this mine are worked down to the bottom of what is called the Glory Hole or the 110 foot level, before working further it is the custom to begin at the top and work all the way down with pick, bar, and shovel, to remove and clean off any loose rock or dirt that may be found upon the side of the wall in a position where it might come down at any time during the progress of the work unless cleared away. When the walls have been thus prepared it seems the work of cutting down new benches. and blasting off the ore began anew. By clearing this wall from all loose or shattered rock that might have been left, the master seems to have done all that was reasonably necessary to make further work in this place a reasonably safe employment. The pieces of rock that might be disturbed thereafter by blasting and other changing conditions of the mine were matters that the employé was charged to examine into and ascertain from time to time as blasting occurred in the mine. But this was a duty not only required of the employé, but a duty that devolved upon the master as well, in order that the place might be made a reasonably safe one

in which the servant might perform his work. Is the adoption of a rule requiring the servant to examine as to his own safety all that is required of the master in this behalf? Clearly not. Whatever the master may require of his servant in this respect, he cannot wholly relieve himself of obligation. But if the danger is a patent one-if it is a danger that is obvious-and might or should have been known by the master, should it not have been equally known by the servant, who was required to examine for himself the conditions. that existed before exposing himself to possible danger? I have no doubt upon this question so far as it may be said to arise from the facts presented in this regard. The danger being obvious and patent to the master and servant alike, both are at fault if the servant continues to labor under such circumstances, and clearly the servant is guilty of contributory negligence. But the evidence in this case does not seem clearly to present the question to which I refer. The plaintiff testifies that the slide of rock came from the surface some 80 feet above him; that he examined the side of the wall above him after the blast as far as he could see; that he was unable to see the surface, and could not see the particular point from which the rock came that struck him and injured him. Other witnesses say that the rock which did the injury came from a few feet above the plaintiff's head, and was clearly to be seen by a reasonable examination on the part of the plaintiff, and might have been barred. down. The plaintiff's helper testifies substantially that he saw the place from which the rock fell a moment before it did fall; that he was nearer the wall and in front of the machine, and jumped away to a place of safety. Another witness testifies on behalf of the plaintiff that shortly after the accident he examined the wall and the surface, and found cracks running down through the frozen dirt on the surface, and that the surface and side of the wall had the ap

pearance of a slide having occurred near that point. The evidence of the foreman whose duty it was to keep watch of the changing conditions of the mine is to the effect that he examined the ground all the way up to the surface about 10 o'clock of the day on which the accident occurred; that he saw no evidences of the wall giving way at any place, or any other evidences of danger. Other witnesses for the defendant say that an examination of the bank had been made shortly before the accident, and that everything seemed safe and all right as far as they could discover. It is further in evidence that the machine men were specially instructed to examine the ground above them after a blast to the top of the mine, and see if there was anything of a dangerous nature threatening them. It is further in evidence that one witness saw the rock fall; that a little dirt and debris first fell, and he thought the plaintiff turned and was shutting off the air from his drill, when he was struck by a rock of about 30 or 40 pounds weight between the shoulders, and knocked from the place where he was standing. The plaintiff himself seems to corroborate this statement, because he says the rock hit him from behind. The same witness, speaking of the falling of the rock, states that he saw distinctly the place from which it came, and it was only a few feet above the head of the plaintiff as he stood upon the tripod, and was within reach by using a bar; that he was about 75 feet distant from the plaintiff at the time. of the accident. Under these somewhat contradictory statements, we are presented, first, with the question as to whether the place from which the rock fell is in any sense material to the issues in this case. If it came from the surface, or near the surface, some 80 feet above where the plaintiff was at work, as stated by himself, or even 30 feet, as stated by another, was the danger that threatened a patent one, one that was obvious, and might have been known by the

defendant corporation had it used reasonable care for the safety of the place in which its servant was working? The plaintiff testifies that he did not see the place from whence the rock came, but claims that it came from the surface. The foreman, whose duty it was to examine the conditions above, stated that he did so shortly before the accident, and he could observe nothing in the appearance of the walls of the mine that indicated a dangerous condition in any respect. I am not stating the language of witnesses, but the substance of the evidence. Other witnesses for the defendant state practically the same thing. If the falling of the rock came from near the surface, then, as claimed by the plaintiff, the fault or defect or cause of the slide was neither obvious nor patent, and it would seem that the defendant had used due care in making the place of the servant reasonably safe. In other words, the falling of the rock from which plaintiff received his injury, if coming from the surface in this way, was clearly one of those hidden dangers, known neither to • master nor servant, and was inherent in the business or service in which the servant was engaged, and was a risk assumed by him as a part of his contract of hire. If, on the other hand, the fault in the wall and the place from which the rocks fell was within a few feet of the plaintiff, and only a few feet above his head, then the condition, if obvious, was one that the plaintiff himself, under the rules of the company and the duty of his position as explained to him. by the officers of the company, should have discovered, and should have remedied by barring it down. If, then, the injury came from near the surface, it was the result of some hidden danger or defect, and the danger was such as inhered in the very nature of the employment; and there was therefore no negligence on the part of the defendant company if they used reasonable care in the examination of the conditions of the mine at its surface prior to the injury, and

the evidence upon this proposition seems to be undisputed. If the injury came from a fall of rock in the wall within a few feet of the plaintiff's head, then the defect and danger is one that he himself should have discovered under the rules of the company, and should have made his place of work safe by his own efforts, and his injury came, if injury he received in this way, because of his own disobedience to a plain rule of the company to make an examination of conditions around him after a blast had been fired and before he resumed his work.

It is to be remembered that the duty of the master to furnish a reasonably safe place for his servant to work is qualified by the conditions attending the work or service upon which the servant enters. The servant is presumed to understand those dangers necessarily inherent in the service upon which he enters, and he takes such risks upon himself. The duty of the master to furnish a safe place to work is qualified further by the duty of the servant to observe the rules of the company, and to so act in obedience thereto that the danger attending the work may be minimized as far as possible. The master never warrants the servant's safety and never guaranties the safety of the place; he discharges. his duty by observing due care in this behalf. The servant may not by indifference and want of care bring misfortune upon himself, and then charge the master with negligence when disaster comes to him, but he must be alert and observant of conditions around him; and particularly is this true where the rules of the master, in addition to the duties the law imposes, require him to make inspection for his own protection. "Where the work in progress necessarily changes the character for safety of the place in which it is performed as the work progresses," says Judge Sanborn, "the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary