that brakes and catches were provided. By failing to do so they were in pari delicto.

.6

Coal Run Coal Co. v. Jones, 19 Ap. 365 (1885). Secs. 4 and 6, ch. 93, Rev. Stats. 1874, as amended by act of June 21, 1883, requiring that in all mines where fire damp is generated, every working place where fire damp is known to exist shall be examined every morning with a safety lamp, by a competent person, before any other persons are allowed to enter, applies not only to opened and worked mines, but also to a shaft in process of sinking preparatory to opening up and working a mine or stratum of coal.

Coal Run Coal Co. v. Jones, 127, 379 (1889). Coal Co. v. Jones, 19 Ap. 365, reversed, on ground that gas was not being generated at the "working place" when the accident occurred.

Sangamon C. M. Co. v. Wiggerhaus, 122, 279 (1887), affirming s. c. 25 Ap. 77 (1886). Sec. 8, ch. 93, Rev. Stats., requiring “all underground, self acting or engine planes or gangways on which coal cars are drawn and persons travel" to be provided with signals, applies to all underground gangways on which coal cars are run, whatever the motive power may be.

Springside Coal M. Co. v. Grogan, 53 Ap. 60 (1892). Ch. 93, Rev. Stats., applies only to coal mines. A pit which is being dug, and which, when completed, is to be used as a shaft of a coal mine which it is designed to open, is not a coal mine within the meaning of the

statute.

Pennsylvania.

Commonwealth v. Bonnell, 8 Phila. 534 (1871).

In cutting the second opening required by the third section of the act of March 3, 1870, the production of coal for market by the men authorized to be employed for the purpose of cutting the said opening is not permitted by the act, except so far as it is incident to driving on through a seam or stratum towards a second outlet.

Commonwealth v. Tompkins, 1 L. L. R. 341 (1872); s. c. 4 Legal Gazette, 238. A mine is not free from danger within the meaning of the act of March 3, 1870, when gas actually exists within the mine, simply because its source is beyond the boundary lines thereof. The act deals with its presence, not its origin.

The act does not require that the mine be kept absolutely clear of gas, but that by the introduction of pure air the gas, as fast as evolved, be diluted, rendered harmless and expelled, so as to avoid its accumulation as standing gas.

Commonwealth v. Connell, 2 L. L. R. 1 (1872). The act of March 3, 1870, by its terms, applies to mines" worked by or through a shaft or slope." It consequently does not apply to a mine worked through a tunnel.

Commonwealth v. Wilkesbarre Coal Co., 29 Leg. Int. 213 (1872); Commonwealth v. Bonnell followed. A slope had been driven in a seam or stratum of coal which was in communication with a second outlet at the point where the mining was carried on, and a field of coal there had been exhausted. From that point a slope was continued, following the pitch of the seam down several hundred feet, and at the bottom thereof extensive mining was carried on, but there was no second outlet communicating therewith. The mine is within the legis

lative inhibition, and an injunction will be granted to restrain the owners from thus working it.

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Northumberland County v. Zimmerman, 75, 26 (1873). The act of April 12, 1867, for the better protection of person, property, and life in the mining regions of this Commonwealth," so far as it provides for the appointment by the Governor of police officers to preserve the peace, and for their payment at the rate of compensation fixed by the Governor, out of the county treasury, is constitutional, and an officer appointed thereunder may recover his compensation from the county. Commonwealth v. Reynolds, 1 Kulp, 218 (1886). Under the law of 1870 a mining boss has no discretion in the performance of his duties. His opinion that an appliance required by the act is unnecessary does not excuse his neglect to have it provided. He cannot delegate his powers and duties.

Whether a door is a main or "check" door within the meaning of the act is a question of fact.

Haddock v. Commonwealth, 103, 243 (1883). Section 3 of the act of March 3, 1870, does not prohibit the mining of coal for market in those seams of a coal mine which have two openings or outlets, as required by the act, at the same time that work is being carried on by not more than twenty men in another seam, for the purpose of making a gangway from said last mentioned seam to a second opening or outlet. A coal mine containing five strata or seams of coal was operated through a shaft extending from the surface through the various seams of coal, and the entrance to the shaft was covered by the breaker. In the first and third seams fifty or more miners were employed, mining coal for market. The second and fourth seams were not being worked. In the fifth seam a number of miners, not exceeding twenty, were engaged in working a gangway to connect with a second opening which had been completed to that seam, although said opening or outlet was already connected with the first and third seams, in accordance with the requirements of the act.

Under sections 3 and 5 of said act the inspector of mines filed a bill in equity to restrain the working of the first and third seams, at the same time that work was being carried on to make a second opening or outlet in the fifth seam. A demurrer to said bill was overruled by the court below, and the injunction granted. Held, to be error, and that under the proviso to said third section the work might be carried on as above stated.

Commonwealth v. Coonrad, 3 Kulp, 381 (1885); s. c. 14 L. L. R. 311. Under the act of June 30, 1885, if by reason of noxious gases, or any cause whatever, an anthracite mine has become dangerous, it is the duty of the "mine foreman" (mining boss) to compel all workmen to retire from the mine until a proper examination of its condition has been made. Failure to do this is a disobedience of the law. It was such disobedience to allow men to remain in and enter the mine after the ventilating apparatus, by reason of a break, ceased to work, and the fires under the boilers were still kept up, the mine being one which was dependent upon artificial means for ventilation. The foreman should have been acquainted with the danger.

Commonwealth v. Richmond, 2 Com. Pleas Rep. 189 (1885). In

order to convict a mine superintendent of a criminal offence under the act of June 30, 1885, art. xi., secs. 1-3, and art. xvii., sec. 4, for not furnishing props, it must be shown that a specific demand had been made at least one day in advance, giving the length of the props or timber required. A general demand by a committee of workmen, and a refusal generally to cut and prepare, is not sufficient. This prosecution arose out of a dispute as to whose duty it was to cut the props of the proper length. The court said it was the duty of the operator to cut props into proper length, and to take them into the chambers to the men employed in the mines, and deliver them there, leaving to the men the duty only to set them up.

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Commonwealth v. Hutchison, 4 C. C. R. 18 (1887). If a vein of coal is known to generate explosive gases at any point, any mine on that vein will be considered a mine generating explosive gases," under the act of June 30, 1885, providing for a daily inspection of such mines by the mine foreman. But if there is doubt whether the foreman knew that explosive gases had ever been generated in his mine, he should not be found guilty of violating the provisions of the act.

Under the provisions of that act it is the duty of the mine foreman to see that the ventilation required thereby is furnished. This duty cannot be delegated. Neglect to perform this duty is a violation of the act, and subjects the offender to its penalties. That the amount of ventilation required by the act is unnecessary, or difficult to supply, is no excuse. The foreman has no discretion as to the amount. That is fixed by the legislature.

Commonwealth v. Wigton, 12 C. C. R. 55; s. c. 2 Dist. Rep. 51 (1893). Under the provisions of the act of June 30, 1885, requiring the owner or agent of every coal mine to employ a competent and practical inside overseer, to be called a mining boss," owners or agents of mines are not required to employ a certified mining boss for every working drift or opening, where the mine, although worked through one or more drifts, consists of territory compactly adjacent, and in its working constitutes but a single operation. Under this act, where the operations are so extensive that the mining boss cannot personally perform all his prescribed duties, he may employ assistants who are not "certified."

Opinion of Attorney-General, 14 C. C. R. 96 (1893). The powers of a mine inspector under the act of May 15, 1893, are purely statutory, are in derogation of the rights of employers and of private contract, and must be strictly construed.

He has power only to order workmen to cease work until the law is complied with, and to prevent them from working, or their employer from working them, in the meantime. So long as they are not working, the operator may abandon the mine; he cannot be compelled to comply with the act, and the reinstatement of the men is not within the inspector's control.

The act does not apply to a mine employing nine persons in any one period of twenty-four hours.

Commonwealth v. Vipond, 14 C. C. R. 357 (1893). Where a colliery was erected prior to the passage of the act of June 2, 1891, and is destroyed by fire, leaving foundations and boilers standing intact,

the breaker may be erected on the old foundation and the boilers maintained as they formerly existed, though less than one hundred feet from the breaker. See art. v., sec. 2, of said act.

Mine inspection. Appointment of foremen. 4 Dist. Rep. 666 (1895). Under the act of June 2, 1891, P. L. 176, the word "miner" includes all classes of miners who have had practical experience in working in a mine," as defined by the act of Assembly. And the right of examination for certificates of qualification for the positions of mine foreman and assistant should be limited only in accordance with the above definition. Where a mine foreman cannot personally superintend the entire mine, he has authority to employ a sufficient number of competent persons to act as his assistants. It is in the interest of the public good, and the law is to be so construed, that all assistants should have a certificate of qualification before they are employed as "competent persons" to act under the provisions of the act.

Durkin v. Kingston Coal Co., 171, 193 (1895). "We are not prepared to hold the act of 1891 to be unconstitutional as a whole. It relates to all anthracite coal mines and defines what shall be regarded as such mines. Coal may be taken out of the ground by farm owners for their own use, or it may be taken in such small quantities and for such local purposes as to make the application of the mining laws to the operations so conducted not only unnecessary, but burdensome to the extent of absolute prohibition. Such limited or incipient operations are not within the mischief to remedy which the mining laws were devised. They are ordinarily conducted for purposes of exploration or for family supply, and ought not to be classed with operations conducted for the supply of the public. The business of coal mining, like that of insurance or banking, may be defined by the legislature. The definition found in the act of 1891 seems to us reasonable, to be within the fair limits of a legislative definition, and to exclude only such operations as are too small to make the general regulations provided by the act, applicable to them." 1

Coal Creek M. Co. v. Davis, 90, 711 (1891). The

Tennessee. statutory prohibition against the use of a furnace inside

coal mines for ventilation purposes contained in the act of 1881, ch. 170, sec. 7, applies to mines worked by shafts, not to those worked by horizontal entries.

III. HEALTH AND SAFETY STATUTES IN THEIR RELATION TO THE LAW OF NEGLIGENCE.

Those statutes for the protection of the lives, the health and the safety of miners, which are enumerated in the preceding division, generally contain a provision for the recovery of damages for injuries occurring through failure to comply with their requirements.

The obligation of the mine owner is by them enlarged and 1 The constitutionality of the act of May 15, 1893, is upheld in Commonwealth v. Jones, 4 Pa. Super. Ct. 362 (1897).

defined. His responsibility for injuries that occur by reason of his failure to comply with the provisions of the act, or which might have been prevented by such compliance, is absolute. No question of negligence arises, or, more properly, the fact of his violation of the law conclusively establishes his negligence. The violation of the law alone will not support an action for damages, if the injury was not proximately caused by the failure to comply with the law, or that failure did not directly contribute to the injury. But if the failure to comply with the law is the efficient cause of the injury, the liability is established without regard to the question whether the employer exercised ordinary care.

At the same time the violation of the statute is not a license to the employee to neglect his own safety. It will not excuse his contributory negligence; but mere knowledge of his employer's violation of the act does not amount to contributory negligence.

In Illinois, however, where the right to recover damages is based on the wilful violation of the act by the owner or operator of the mine, that right is absolute, if the violation is shown to be wilful, and it cannot be defeated by proof of the employee's negligence.

Many of these statutes require the employment by mine owners of competent superintendents or mine bosses, from a class who are licensed by the State. If the mine owner has been reasonably careful in the selection of such officers, he is not liable for their negligence. A statute which attempts to make him so responsible is void.

Colorado.

Victor Coal Co. v. Muir, 20, 320 (1894). The primary object of the statute concerning coal mines (Sess. Laws 1885, pp. 187-141) was to secure the health and personal safety of all persons engaged in underground coal mining. While it is the duty of the mining boss to see that sufficient timber of suitable lengths and sizes is placed in the working places of the mine, the duty of securely propping the roof of the mine, by actually setting such timbers themselves, is devolved upon any miner, workman, or other person having control of any working place in the mine, and the wilful neglect of such duty is a misdemeanor under the statute a miner who is injured by reason of such neglect is guilty of contributory negligence.

Colorado C. & I. Co. v. Lumb, 6 Ap. 255 (1895). The mine boss, under the act of 1885. is, in the absence of proof that he had other authority than that derived from the statute, a fellow servant of the miners, and the mine owner is not responsible for injuries caused to workmen by his negligence.