#### Jelic *v.*Jamison Coal & Coke Company, Appellant.

*Negligence*— Master *and servant*— Mines *and mining*— Inexperi*enced minor*— Striking *unexploded charge loith pick*— Employer’s *duty to warn of danger*— Instruction—Delegation—Custom—Fel*low servant*— Case *for jury.*

1. Where an employer delegates an older and experienced fellow servant of an inexperienced employee to instruct and qualify him for service, the employer is liable for the negligence or omission of the instructor, if, by reason of it, the employee suffers injury. A servant delegated to instruct the employee stands for this purpose in the place of the employer.

2. In an action against a coal mining company to recover for personal injuries sustained by a minor in defendant’s employ due to the failure of the defendant to give him proper instructions as to the danger to which he might be subjected from unexploded charges having been left in the coal where he was directed to work, or as to the proper method of avoiding injury from such unexploded shots, the case is for the jury and a verdict for plaintiff will be sustained where it appeared that prior to the accident plaintiff had been employed in various coal mines for fourteen months, but with a limited experience in the use of explosives; that as a rule he had worked with experienced miners, but on the morning of the accident was working alone digging coal when he stuck his pick into the coal at a point five or six inches from a hole and an explosion immediately followed, causing the injuries complained of; that plaintiff was ignorant of the danger from unexploded shots in the coal, and had never been warned to look out for them or instructed as to the proper method of guarding against injury from them, although the testimony tended to show a custom to give such instruction.

3. In Such case, although the failure to report the existence of the unexploded charges was due to the negligence of another miner, a fellow workman of the plaintiff, the fellow-servant rule is not applicable.

Argued Oct. 15, 1917.

Appeal, No. 142, Oct. T., 1917, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1916, No. 78, on verdict for plaintiff in case of Mike Jelic, a Minor, otherwise known as Check No. 5, by his Brother and nest Friend, Vincent Jelic, v. Jamison Coal *448& Coke Company, a Corporation.

Before Brown, C. J., Potter, Moschzisker, Frazer and Walking, JJ.

Affirmed.

Trespass for personal injuries. Before Shafer, P. J.

The facts appear by the opinion of the Supreme Court.

Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.

*Error assigned,*among- others, was in refusing defendant’s motion for judgment non obstante veredicto.

*Robert*TV. *Smith,*of *Moorhead & Smith,*with him *William S. Moorhead,*for appellant.

A master is not answerable, as a rule, for an injury to adults with experience, nor for an injury to young persons who have had experience from which a knowledge of danger may reasonably be presumed and discretion which prompts one to take care of himself. Under this rule plaintiff’s fourteen months’ experience precludes him from recovery : Stitzel v. Wilhelm Co., 220 Pa. 564.

The proximate cause of the injury was the negligence of a fellow servant, and defendant was not obliged, in the absence of actual knowledge of the existence of the particular danger, to anticipate that the fellow servant of the plaintiff Avould be negligent: Crown Cotton Mills v. McNally, 51 S. E.. Repr. 13; Klos v. Hudson River O. & I. Co., 77 N. Y. App. Div. 566; Siddall v. Pacific Mills, 162 Mass. 379; Fay v. Wilmarth et al., 66 N. E. Repr. 410; Melchert v. Smith Brewing Company, 140 Pa. 448; Lewis v. Wood, 247 Pa. 545.

The danger AAdiich plaintiff encountered Avas a transitory danger Avhich arose during the progress of the work and with respect to which there is no duty of instruction : Miller v. American Bridge Co., 216 Pa. 559; Eddleman v. Pennsylvania Co., 223 Pa. 318.

The duty of instruction of the particular danger in this case, if such duty existed, was the duty of the mine *449foreman, and for his neglect the defendant is not liable: Bogdanovicz v. Susquehanna Coal Co., 240 Pa. 124.

*T. M. Gealey,*with him *A. J. Ediles,*for appellee.'—

Plaintiff was about fifteen or sixteen years of age and was not an experienced miner: Long v. Greenough Red Ash Coal Co., 59 Pa. Superior Ct. 235.

There is a duty upon the defendant to warn plaintiff of the danger: Standard Oil Co. v. Brown, 218 U. S. Rep. 78; Grace & Hyde v. Kennedy, 99 Fed. Rep. 679; Blaisdell v. Davis Paper Co., 77 Atl. Repr. 485; Holshouser v. Denver Gas & Electric Co., 72 Pac. Repr. 289.

The duty to instruct inexperienced employees is an' absolute common law duty resting upon the employer, and when the employer seeks exemption from such duty he must point to some express statute exempting him from such, or placing that duty on some one else; the duty to instruct was not that of the mine foreman: Reeder v. Lehigh Valley Coal Co., 231 Pa. 563; Roszina v. Howard Gas Coal Co., 251 Pa. 298; Thorne v. Philadelphia Rapid Transit Co., 237 Pa. 20.

January 7, 1918:

Opinion by

Mr. Justice Potter,

In this action, the plaintiff, a coal miner formerly in the employ of the defendant company, sought to recover damages for injuries suffered by him, resulting, as he alleged, from the failure of the defendant to give him proper instructions as to the danger to which he might be subjected from unexploded charges having been left in the coal where he was directed to work, or as to the proper method for avoiding injury from such unexploded shots. It was contended upon behalf of defendant, that, under the facts of the case, it was under no duty to give him such instructions. It appears from the record that, prior to the accident, the plaintiff had been employed in various coal mines for some fourteen months, but, with a limited experience in the use of explosives. He testified that he had as a rule worked with experienced miners, but on the morning of the accident, *450he was working- alone digging coal, when he saw a hole in the face of the coal, about three feet above the ground. He stuck his pick into the coal at a point some five or six inches from the hole, and an explosion immediately followed, inflicting upon him severe injury. Plaintiff testified that he was ignorant of the danger of injury from unexploded shots in the coal, and had never been warned to look out for them, or instructed as to the proper method of guarding against injury from them. Other witnesses, experienced in coal mining, testified on his behalf that an unexploded shot or charge might have been left in the hole by a miner who had previously been working in the same room and that this charge might have been exploded by the blow from plaintiff’s pick. The sufficiency of this explanation, as to the cause of the accident, was not seriously questioned by defendant, nor did it offer testimony which threw any further light upon the subject. In the course of his cross-examination of J. D. Humphries, a witness for plaintiff, counsel for defendant brought out, by a leading question, the fact that it is the universal custom with all mining companies to instruct miners, when they charge a hole that fails to go off, (which rarely happens), to put up a danger board, and leave that working place at once, and report the condition to the mine foreman, the assistant mine foreman, or the first boss. Admittedly no such instruction was given to plaintiff by the defendant in this case. It is true that the failure to report the existence of the unexploded charge was due to the negligence of another miner, a fellow workman of the plaintiff, and ordinarily an employer is not called upon to instruct an employee with respect to dangers which may result from the negligence of fellow servants. But in this instance the employer was carrying on a business involving some danger to its employees, and it appeared that defendant knew of the possibility of special danger from unexploded shots, and that it had adopted a special rule for the conduct of the miners to guard them against injury *451from that source. The defendant company was, therefore, bound to instruct its employees clearly and unequivocally with respect to that danger and as to the means of avoiding it. The stringency of the rule adopted for the guidance of the miners, in dealing with unexploded charges when they were discovered, shows that the mining companies fully appreciated the fact of possible danger from that cause. It appears from the testimony that a charge of dynamite or other explosive placed in the coal and fired by the use of an electric battery seldom failed to explode, but when one did miss fire, the miner was not expected or permitted to deal with the situation, but was required to report the circumstances, and the matter was turned over to one more skilled in the use of explosives. Unless the plaintiff knew of the danger to be apprehended from unexploded shots, he could not protect himself therefrom, and unless he knew of the rule of the company, made for his protection, he could not be expected to comply with what the company regarded as an important regulation. Plaintiff testified that he was not made acquainted with ,the danger to be incurred from an unexploded shot, and had no knowledge concerning it, and the court below could not have said, as a matter of law, that the danger was obvious to ordinary inspection. The testimony tends to show that it was the custom of older and experienced miners to instruct the inexperienced men associated with them partly for that purpose, with respect to the dangers of the business, and that this instruction should include directions for dealing with holes in the coal which, to the eye of an experienced miner, indicated that they might contain unexploded shots. Whether or not the defendant in this case depended entirely upon this method of instruction does not clearly appear from the testimony, but, if the employer delegated older and experienced fellow servants of the inexperienced men, to instruct and qualify them for service, it was liable for the negligence or owissiop of the instructor, if, by reason of it, the em*452•ployee suffered injury. A servant delegated to instruct the employee stands for this purpose in the place of the employer, and the latter is liable for his default. In any event, it is clear from the evidence that it was the duty of the defendant to see that the plaintiff was duly warned of the danger of injury from unexploded shots remaining in the coal Avhich he was directed to take out, a danger fully recognized by the defendant, but, according- to his testimony, unknoAvn to the plaintiff. Whether or not the defendant discharged its duty in this respect Avas a question of fact for the jury, and, under the evidence, the trial court would not have been justified in determining .it as matter of laAV.

The assignments of error are overruled, and the judgment is .affirmed.