#### CUMMINGS, Appellant, *v.*HELENA & LIVINGSTON SMELTING & REDUCTION CO., Respondent.

(No. 1,383.)

(Submitted November 20, 1901.

Decided April 29, 1902.)

*Master and Servant*— Mining—Action *for Injury*— Motion *for Nonsuit*— Bide *of Consideration*— Contributory *Negligence —Pleading—Burden of Proof*— Evidence — *Contributory Negligence*— Ordinary *Care.*

*4351. On motion for a nonsuit, the evidence will be regarded in the light most favorable to plaintiff, and that which it tends to prove must be taken as proved.

2. where plaintiff’s own evidence shows that he ought not to recover, a non-suit should be granted.

-3. Though, in actions for injuries, the absence of contributory negligence need not be pleaded, if the complaint shows that plaintiff’s own act was a proximate cause of the injury it must also state his freedom from negligence in doing such -act.

4. Where plaintiff’s evidence in an action for injuries shows that the injuries were caused in whole or in part by his own acts, the burden is cast upon him to prove that he was exercising ordinary care at the time.

5. Where, in an action for injuries, plaintiff’s evidence shows, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused, the injury, a nonsuit should be granted.

6. Evidence reviewed, and *held,*that plaintiff, in proving the circumstances of the accident and injury, succeeded in establishing for the defendant the defense of contributory negligence, and hence, the granting of a nonsuit was proper.

*Appeal from, District Court, Jefferson County; M. IT. Par-leer, Judge.*

ActioN by Martin Cummings against tlie Helena & Livingston Smelting *A*Reduction Company. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

*Mr. T. J. Walsh,*and *Mr. C. B.*Nolan, for Appellant.

On tbe review of a motion for nonsuit, everything which the evidence tended to prove will be assumed to be true by the appellate tribunal. *(Creek*v.' *McManus,*13 Mont. 157; *Wetz-stein*v. *Joy,*ib. 444; *Mayer*v. *Carothers,*14 ib. 288; *State ex rel. PigoU*v. *Benton,*13 Mont. 322; *Powers*v. *Klenzie,*15 Mont. 179; *Jensen*v. *Barbour,*15 Mont. 586; *Soyer*v. *Great Falls Water Co.,*15 Mont. 5; *Emerson*v. *Eldorado Ditch Co.,*18 Mont. 254; *Holier Lumber Co.*v. *Fireman's Ins. Co.,*18 Mont. 288; *State ex rel. Harmon*v. *Conrow,*19 Mont. 106; *Morse*v. *Com. of Granite Co.,*19 Mont. 453; *Cameron*v. *Commercial Co.,*22 Mont. 312.)

Negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It is not the' duty of the court in such cases, any more than in any other, to usurp the province of the jury, and pass *436upon the facts; and a nonsuit can only be granted in such cases where the evidence of the misconduct of the party injured is so clear and irresistable as to put the case on a par with those cases where a nonsuit is granted for a failure to< introduce evidence sufficient to go to the jury upon some point essential to plaintiff’s case. *(Wall*v. *Helena 81. Baihoay Go.,*12 Mont. 49.) The primary duty devolved upon the defendant to employ competent men. This duty it owed to the plaintiff. Equally imperative was it if the incompetency of the servant came to its knowledge after his employment to- discontinue the service of such employe. *(Kelley*v. *Gable Go.,*I Mont. 80; *Kelley*v. *Fourth of July Go.,*16 Mont. 491; *Webster Manufacturing Go.*v. *Schmidt,*17 Ill. App>. 49; *Dysart*v. *Kansas City, etc.,*145 Mo. 83; *Maitland*v. *Gilbert Paper Go.,*97 Wis. 476.)

While this duty devolves upon the master' to furnish competent servants, if the fact of incompetency is known to the fellow servant and he continues in the employ of the master, there is on his part an assumption of the risk. *(Stafford*v. *Chicago, etc. B. Go.,*114 Ill. 244.) If, however, the master promises that the danger due to the neglect of the fellow servant will be remedied, a retention of employment for a reasonable time will be warranted, without the assumption of risk therefrom, or without contributory negligence, unless the danger is so apparent, imminent and immediate .that a man of ordinary prudence would refuse so to> remain. *(Smith*v. *Backus Lumber Go.,*64 Minn. 447; *Kelley*v. *Fourth of July supra; DaugheHy*v. *Midland Steel Go.,*53 N. E. Eep. 844; *McFarland Garriage Go.*v. *Potter,*153 Ind. 107; *Nelson*v. *Sham,*102 Wis. 274.) If the master promises the employe that an incompetent servant will be removed, he is justified in remaining a reasonable time. *(Lyberg*v. *N. P. BaMroad Go.,*38 N. W. Eep. 632.) The instances are exceedingly rare where a servant can be held guilty of contributory negligence as a matter of law, where a promise has been given. The question is invariably one for the jury. *(Union Manufacturing Go',*v. *Morrissey,*40 Oh. St. 148; *Northern P. Go.*v. Babcock, *437154 IT. S. 190; see cases cited, 40 L. E. A. 787, Note.) Whether there was an actual promise is a question for the jury where it arises from implication. (82 Iowa, 179.) It is always a question for the jury as to whether the servant’s reliance on a promise by the master induced'him to continue work. *(Manufacturing Co. v. Morrissey,*40 Ohio St. 148; *Rerihcnberger*v. *N.*IF. *Consolidated Milling Co.,*57 Minn. 461.)

Where a master is negligent in furnishing defective machinery, one who continues in service under promise by another servant to repair is injured, it is immaterial whether' the servant making the promise had authority to do so, provided the injured servant upon reasonable grounds supposed him to have. *(Bells Lumber Co.*v. *Erickson,*80 Fed. 257.) If the servant has reasonable grounds for believing that the master will remove the source of danger, whether the impression is the result of an explicit promise or not, he may continue working without culpability as long as the jury may consider it reasonable to retain that belief. *(Hoffman*v. *Dickinson,*31 W. Va. 142.) It is not necessary that there should be a formal protest or an express promise. *(Rothenberg*v. *N.*17. *Con. Milling Co., supra; Pieart*v. *Chicago R. I.*& P. *Ry. Co.,*82 la. 148.)

Much emphasis is given to the fact that no complaint was made by the plaintiff. It is purely a question as to which assumes the risk, the plaintiff or the defendant. *(Schlitz v. Pabst,*59 N. W. 188; *Green,*v. *Railroad,*17 N. W. 378; *Smith*v. *Dumber Co.,*67 N. W. 308.)

A foreman of a mine having authority to employ and discharge a laborer employed therein, is not a fellow servant with such laborea' so as to. relievo the owner from liability. *(Kelley*v. *Cable Co.,*7 Mont. 80.) Whether a foreman of a mine is a fellow servant is a question of fact for the jury. *(Wellsville Coal Co. v. Schwart,*177 Ill. 272; *Hill*v. *Winston *^5*N. W. 1030.) That parties are under his supervision and subject to his control is the best evidence that he is a vice principal. *(Union Pacific Railway Co.*v. *Doyle,*70 N. W. Eep. 43.) One who has power to employ and discharge laborers in his *438department is a vice principal. *(Port Smith Oil Go.*v. *Sloverf*58 Ark. 168.) It was the dirty of the master to employ competent servants; if instead of performing this obligation, he engages another to do it for him, he is answerable for the neglect of that other, no matter what his position as to' other matters. *{N. P. B. Co.*v. *Paterson,*162 IJ. S. 346; *Hess*v. *Rosenthal,*160 Ill. 621.) This doctrine is very clearly and forcibly announced in an elaborate note, 15 Am. State Keports, p. 595.

The dirties of the master above enumerated are those imposed upon him by law. They are positive, absolute and personal, and the master, whether an individual or a corporation, cannot evade liability by delegating their performance to another. No duty belonging to the master to perform for the safety and protection of his servants can be delegated to any servant of any grade so as to exonerate the master from liability to a servant who has been injured by its non-performance. The agent to whom such duty has been delegated, whoever he may be, and notwithstanding he may be a fellow servant in other respects, is a vice principal or representative of the master. In other words, he is the master’s *alter ego',*whose negligence1 is that of the master, and for which the master is responsible, whether an employe or a third person is injured thereby.

Contributory negligence is a matter of defense, and plaintiff need not allege or prove its absence. *(Higley*v. *Gilmer,*3 Mont. 96; *Nelson*v. *City of Helena,*16 Mont. 22; *Millville*v. *Pac. Muí. L. I. Go.,*19 Mont. 650.) If the question of negligence or contributory negligence is a fairly disputed question of fact, it must be resolved hv the jury. *(Wall*v. *Helena St. Railway Co.,*12 Mont. 50.) Contributory negligence being an affirmative defense cannot- be considered on a motion for a nonsuit at the close of plaintiff’s main case: *(Powell*v. *Southern Railway Co.,*125 N. 0. 370.) The present case differs in principle from one where the proximate cause of the injury was plaintiff’s own act, in that event it would be in*439cumbent upon him to show that he was free from contributory negligence. *(Prosser*v. *Railway GoV*Mont. 388.)

It was error to deny plaintiff’s application for leave to introduce supplementary proof. While conceding that a large measr tire of discretion vests in the trial court in a matter- of this kind, we feel that here there was an absence of any reason why the applicatioin should be denied. (See *Pitts*v. *Florida Cenr tral R. R. CoV*S. E. Eep, 19, 189.)

*Messrs:*Chillen, *Day £*Cullen, and *Messrs. Toole £*Bach, for Ilespondent.

There is no dispute or disagreement between counsel as to the rule applicable to the review of the evidence on motion for nonsuit. Everything which the evidence tends to. prove will be assumed to be true. But it is what the *evidence*tends to prove that is assumed to be true. Where the facts are undisputed and but one inference.can be drawn from them, the plaintiff’s right to recover thereunder is a question of law. And where the plaintiff fails to establish any fact from which the defendant’s negligence could be inferred, the plaintiff is not entitled to recover and the motion should be granted. Ho, too, where the plaintiff’s own evidence establishes his contributory negligence it bars his recovery as effectually as a failure to introduce any evidence upon a point essential to his case, and a motion for nonsuit should be granted. *(Wall*v. *Helena Ft.*Ry. *(do.,*12 Mont. 49; *1*Amer. & Eng. Ene. Law (2d Ed.), 454.)

It is well settled that to make the master responsible for the negligence of the incompetent servant, it must not only appear that the servant was incompetent, but it. must also appear that the injury resulted from such incompetencv. (12 Amer. & Eng. Enc. Law, 918, and cases cited.) The facts in this case are very similar to those recited in *McAndreirs*v. *Railway*C'o., 15 Mont. 299. In order to relieve the servant from the assumption of risk, the master should have induced the servant to- waive his right to leave the service, either by taking upon *440liimself tbe responsibility for injuries wbieli might result, or by leading the servant to believe that the danger would be removed. Where the declarations of the master are made for his own benefit, or for the purpose of advancing his owm interest, they will not amount in law to such a promise as will relieve the servant from, the assumption of risk. *(International & G. N. Ry. Go<.*v. *Turner*(Tex.), 23 S. W. Hep-. 146; see also *Lewis*v. *New York & N. E. By. Go.,*26 N. E. 430.)

Portions .of a mine from which ore is being taken, and which as the work progresses it becomes necessary to timber, are not, from the time it becomes necessary to timber them, places for work, within the rule requiring a master to furnish his employes a safe place to work. *(Petaja*v. *Min. Go.,*66 N. W. 951.) It is not necessary that a servant should be warned of every possible manner in which injury majr occur to him, nor of risks that are as obvious to him as to the master, and where a mature and experienced man engages in, a dangerous occupation, with the risks of which he is familiar, and is injured, not.through defect in the appliances, but by the manner of their operation, incident to the business, he cannot recover against the master. *(Logging Go.*v. *Sclmeide?,*14 Eed. 195.) “An important consideration, often overlooked, is whether the structure, appliance or instrumentality is one which has been furnished for the work in which the servants are engaged, or whether the furnishing and preparation of it is itself part of the work which they are employed to perform.” *(Petaja*v. *Min. Go.*(Midi.), 66 N. W. 951; *Smith*v. *Gramp Go.,*35 N. Y. 8. 534; *Durst*v. *Carnegie Steel Go.*(Pa.), 33 Atl. ,1102; *McCarthy*v. *Iron Works*(La.), 20 So. 171; *Kelley*v. *Gable Go.,*7 Mont. 70; *Retaja*v. *Iron Mi/n. Go.,*64 N. W. 335; *Linton Goal & Mining Go.*v. *Persons,*43 N. E. 651; *Spellman,*v. *Ry. Go.,*34 S. W. 298; *Kelley*v. *Fourth of July Mining Go.,*16 Mont. 496.)

MR. JUSTICE PIGOTT

delivered the opinion of the court.

The plaintiff, having suffered ¡personal injuries in a mine *441situate in Jefferson county and operated by tlie defendant, brought this action to recover $35,000 as damages. The injuries are alleged to have occurred through the defendant’s negligence. When the plaintiff rested, the court granted a non-suit upon several grounds, one being that the plaintiff had assumed the risk of the accident which occasioned the injury, and another being that he had been guilty of contributory negligence. Judgment for the defendant was then entered, and the plaintiff has appealed.

On motion for nonsuit, whatever the evidence is sufficient to prove in favor of the plaintiff must be considered as established; in other words, when sirch motion is interposed, the truth of the evidence tending to support the plaintiff’s case must he assumed and must be regarded in the light most favorable1 to him, — that which the evidence tends to show must be taken ¡is proved. This Avell settled rule has been repeatedly declared and applied by this court. No less well settled is the rule that if the plaintiff, in attempting to make a case, shows that he ought not to recover, either a nonsuit should be entered or a verdict directed on motion, whichever practice prevails in the particular jurisdiction. In this state, nonsuit is the technically correct method. *(McKay*v. *Montana Union Ry. Co.,*13 Mont. 15, 21 Pac. 999.) In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the plaintiff, but its presence is a matter of defense. Such is the law in Montana. *(Higley*v. *Gilmer,*3 Mont. 90, 35 Am. Rep. 450; *Mulville*v. *Pac. Mutual Life*Ins. *Co.,*19 Mont. 95, 47 Pac. 650; *Snook*v. *City of Anaconda,*26 Mont. 128, 66 Pac. Rep. 756.) The contrary rule Avas announced in *Ryan v. Gilmer,*2 Montana Reports, 517, 25 American Reports, 744, but has been overturned by the oases cited and those referred to by the opinions therein. If, hoAvever, the complaint sIioavs the proximate (or a proximate) cause of the injury to have been the act of the plaintiff, the complaint must also state his freedom from negligence in the doing of the act; othenvise the pleading is bad. *(Kennon**442v. *Gilmer,*4 Mont. 433, 2 Pac. 21) ; and so, if the evidence in behalf of the plaintiff shows the injury to have been directly caused (cither in whole or in part) by his act, the burden is 'immediately upon him to prove that he was exercising ordinary care at the time. *(Nelson*v. *City of Helena,*16 Mont. 21, 39 Pac. 905.) Another rule, from which there seems to be no dissent except in North Carolina *(Bolden,*v. *Railway Co.,*123 N. C. 614, 31 S. E. 851; *Cogdell*v. *Railroad Co.,*124 N. C. 302, 32 S. E. 706; *Powell*v. *Railway Co.,*125 N. C. 370, 34 S. E. 530), is that if the evidence in plaintiff’s behalf establishes, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused, the injury, the court should on motion direct a verdict or grant a nonsuit.

The motion for a nonsuit in the case at bar was similar to the common law demurrer to the evidence, in that it performed the office of admitting’ as facts what the evidence tended to prove, thereby presenting the question whether the facts so conceded, when viewed in the light most favorable to the plaintiff, were, as matter of law, sufficient to justify a verdict for him. So considering the evidence, the facts may be stated thus: On Saturday, September 28, 189.5, the plaintiff, aged 33 years, a practical miner of sixteen years’ experience, familiar with the risk and dangers incident, to the hazardous occupation, was severely injured by a fall of rock in the Alta mine, operated by the defendant, a corporation. He had been so in the employ of the defendant, and working for it as an underground miner in Ihe .Vita mine since 1892. Eor many years he had operated a machino drill used for boring holes in tunnels and raises so that blasting might be done. When hurt lie was engaged in constructing a three-compartment, inclined raise on the vein, following the foot wall, from the 1200-foot level to an intermediate tunnel eighty feet distant. The raise departed from flie perpendicular at an angle of about 45 degrees — the dip of the vein. Each compartment was a separate chute; the-middle one was the man-way, the others, one on each side of *443tlie man-way, were used for ore. Four sets of timbers were needed to make the three compartments., These consisted of four equi-distant stringers, or uprights, next to the hanging wall; four stulls or cross-pieces eight to ten feet in length (according to- the pitch of the walls) attached to, and supporting the top of, the stringers, and reaching from wall to wall; three “girds,” or girders, laid on top of the stringers and parallel with the strike or course of the vein, and running from stull to stull. The stulls supported the stringers, and the girders served to keep- both in place. Each three-compartment section of the rise was about six and one-half feet in height by thirteen in length, each room or compartment being about four feet and four inches in length along the lode on its strike or course, which is east and west. When the ground did not blast so as to permit the stulls.and stringers to fit snugly against the country rack, the stringers were lagged crosswise with round poles four feet and four inches in length, and then the space between the lagging and the hanging wall was filled in with waste so as to keep the timbers secure.' To make a floor, lagging of the same sort was laid on top of the timbers from stull to stull, and across the openings leading up to the face of the raise. The machine was set upon the floor and the holes drilled overhead in the face. Each set of four timbers carried the raise six and one-half feet further towards the tunnel. A floor was not left on each set of timbers, hut whenever advance of a set higher (six and one-luilf feet) had been made, the lagging of the lower floor of the last set would be moved up and the top flooring of that, set left, so that there were always two floors lagged in whole or in part. The top or upper floor was always left open ■ — that is, without lagging — on the side not- blasted, in order that the miners might gain ingress to- it from the floor below and see the face of the ground. After drilling and before blasting, the space between the timbers immediately under the ground to he blasted was always lagged. This was done as a measure of protection to miners going to the; lower floor; with the upper floor (or top of the timbers) tightly lagged under *444tlie ground blasted or about to- be blasted, a man. could, with a reasonable degree of safety, reach the lower floor, cross to the side or end over which blasting had not been done, or was not about to be done, and then go to the upper floor through the opening left under the solid ground. The plaintiff testified: “As we went up we would set the machine for tire purpose of drilling on one c f these floors, the bar set on one of those floors that would be lagged up. We put lagging on top of the timber, too, and that made a floor, and from that floor we bored above us-. As we proceeded with the work, we did not leave these floors on each set of timbers; when we would get up a set higher we would pull up the under floor and move it on up again; wo kept two floors all the time. We would pull the one below up; when we put a set of timbers above, we would pull the lower floor up and move up. We ascended the upraise to get where we were working through a ladder constructed in this manner. As the work was carried up we always left the top floor open on the side that was not blasted out, so that a man could get through there and see the face of the ground that was left and also see the ground where it was blasted.” If, for example, the ground in the eastern part of the face of the raise was about to be, or had been blasted, the opening would be left on the -western side or end under the secure ground. “In the place where it had not been blasted, it [the floor] would bo left open, so that when I came up in the morning, by looking up I could see the face of the ground where the blasting had been done. We put lagging on the floor immediately under the place where we were going to blast, because that is where the man would come up on the first floor; if that floor was left ojoen and a man would go up there, there would be nothing to protect him over his head, but with that floor lagged up a man would go up and cross over to the side that was not blasted, and then he would go up there.”

Nor thirteen days before, and on the day of, the accident, the plaintiff was working on the day shift. One Running, his fellow servant, was working on the night shift, and 'had been *445operating tlie drilling machine for a month. Running would quit work at ten minutes after five o’clock in the morning, and plaintiff would begin at ton minutes before seven — about one and one-half hours thereafter. Running had had but little experience with the machine. lie sometimes bored holes which inclined away from, instead of toward, the center of the raise, and which, when fired, -failed to blast down the ground; the effect of this was to shake the ground and make it unsafe. In order to drill the holes properly, so that the ground when blasted, would come down easily, it was necessary to* set the machine on one side of the raise and bore the holes toward the center over the man-way, and then remove the machine to the opposite side and bore the other holes toward the center. Holes drilled in this way “would have a cut so* they could break their burden.” The effect of drilling the holes was to shake or loosen the ground more or less, according to its character. Ground shaken or loosened by ineffective blasts, or by boring without blasting, should be lagged or spragged to prevent its falling upon those afterwards working under it. About a week before the accident the day-shift-boss, noticing that Running had omitted to fire four out of six holes made by him, remarked to the foreman, who was authorized to hire and discharge the men, that such work would never do and “a man must be crazy to drill holes like that;” to which the foreman answered that it was the worst work he had ever seen, and asked the plaintiff for an expression of his opinion. The plaintiff told the foreman it was hard to keep the ground safe when holes were drilled in that way, for a bowlder might drop out at any time. The foreman then said he would look after Running’s work carefully and inspect it, and told the plaintiff to* keep at work and do the best he could, and perhaps Running’s' work would improve after a while. On Thursday, two days before the accident, Running drilled and fired six holes, which did not break, and the foreman told the plaintiff that Running was doing worse instead of better and that he would put a man in his place who understood that sort of work. Plaintiff, though *446lie did not announce bis intention to do so, would have quitted tlie employ of tlie defendant on tliat day but for tlie alleged promise to discharge Running.

On Friday, the day before the accident, tlie plaintiff put in four sets of timbers, and lagged the stringers for about two and one-half .feet above the floor. When be stopped work on that afternoon, tlie face of tlie ground over the west compartment, or chute, was about five feet above the top of the timbers and, hence, about eleven and one-half feet above the floor; over the east compartment' or chute, .the ground hung lower, being three feet above the top of the timbers, and hence about nine and one-half feet above the floor, projected three or four feet over the chute, and reached from the hanging to the foot wall. This ledge he sounded with a hammer before going off shift on Friday afternoon; finding it solid, he did not brace it. The space across the top of the sets of timbers was left open. Before going away on Friday afternoon, that plaintiff at 5 :30 o’clock, fired and blasted four holes which had been, drilled by Running the night before, in the center of the raise over the man-way; two were in the hanging- and two in the foot-wall; each was seven or eight feet deep and was started about one foot above the ledge projecting over the east chute. The further ends of the holes were about eight feet from the ledge. Each hole was ene and. one-liálf inches in diameter and contained powder to' a depth of from eighteen inches to two feet, lie did not go back to see what effect the blast had, or where the dirt and rocks fell; it was not his duty to do so. After he had blasted, the first man in the ordinary course of business to go into the raise made by the plaintiff, was Running, whose duties were to lag up the stringers, fill with waste the space between the stringers and the hanging-wall, drill two rounds of holes, lag the top of the timbers for a floor under the ground to be blasted, leaving the top open elsewhere,- and to charge, fire and blast at ten minutes after five o’clock in the morning of Saturday. It was not his duty to observe the effect of the *447blast. Tlie next man to g01 into tlie raise after Running left, was the plaintiif.

At ten minutes before seven o’clock on the morning of Saturday, the 28th, the plaintiff, according to custom and in the performance of his duty as a servant of the defendant, went into the raise to continue the work. He had not inquired whether Running* was still in defendant’s employ, and did not know whether or not Running* had worked there during* the night. Iiis first duty was to examine the ground for the purpose of ascertaining its condition and to remove that which was found to be broken down or loose. Reaching the first, or lower, floor at the west end of the section of the raise constructed by him on Friday, he caw that the timbers put in by him had been lagged entirely across the top sets, thereby making a floor which hid the face of the raise. The usual way of access was barred by this floor. Between the' stringers (which he had partly lagged on Friday) and the hanging-wall there w*as a space three feet wide for waste. To reach the top floor he climbed up through this space and then over the girders. Thus he brought himself upon the top floor and next to the face of the raise. If the ground over the east chute had not been drilled or blasted, tlie floor should have been there left open; if drilled or blasted, it should have been closed by lagging*. It was so closed; “it was lagged clear across the four sets, it was lagged right up tight.” When lie reached the top floor he saw that blasting had been done. He saw a large opening in the ground at the west end of the face of the raise. He knew that, thirteen hours before, he himself had blasted four holes over the center of the raise; this, he says, had no effect upon, the projecting* ledge on the east chute. He knew also that the man who had just gone off shift had drilled, and probably blasted, two rounds of holes. He found that die charges fired by him had knocked down part of the ground, and that the work had been continued from where the plaintiff had blasted almost to the intermediate tunnel, — a distance of two sets or thirteen feet from the top floor. *‘Running had lagged up .that floor, and most of the ground that *448lie blasted was on top of this floor; he had the floor lagged right up tight to the girds, and the dirt was on top of the lagging, that is, the ore.” lie did not observe any holes that were not blasted. The first thing he did after getting on top of the floor was to pick down the loose ground -blasted by Running, and break into the tunnel, which required half an hour’s work. He then “sounded all around the walls of this space of ground that was blasted out that night,” and fond it safe. To the face of the projecting ledge of rock, or bench of .ground, he gave a “side glance,” and the ledge seemed to him to be in exactly the same condition it was on the preceding afternoon when he left after blasting four holes, except that under it there was. dirt on the lagging. He could not without stooping, or removing some lagging, see its “lower face,” which (as has been stated) was about three feet above the lagging, overhanging the east chute three or four feet, and reaching clear across the vein from wall to wall. He could have examined the ground; there was nothing to prevent him from doing so. Though he made examination of the “sides of it up- where” he picked down the loose rock, which was to the west, it is manifest from his own testimony that he neither sounded nor otherwise examined or inspected the projecting ground or ledge itself on Saturday. In picking into the tunnel some waste came down. The plaintiff had orders from the day shift-boss not to permit any waste to* go into the chutes, which contained ore. He told his helper, who was standing on the floor below, to pull up two pieces of lagging from that floor and put it behind the stringers, as the plaintiff intended to throw waste down. The helper did as he was directed. The plaintiff then took a stone from the pile of dirt, carried it to the east chute, and dropped it down between, the hanging wall and the lagged stringers. "When he dropped the stone he was standing by the ledge. The stone knocked the topi lagging out of place. Stooping, the plaintiff got down on his knee to replace the lagging; in doing so he put his body immediately under the ledge, and reached down behind the stringer. As he arose, part of the ledge fell upon *449him, causing tiie injuries of wliicli be complains. ■ Had tbe ledge been supported, or spragged, be would bave known tbe ground was loose or unsafe; not being spragged or braced, be thought it was just as be bad left it on Friday. After tbe accident two or three pieces of lagging on tbe top floor under tbe ledge were removed, and five or six boles were to> be seen in. tbe ledge. These bad been properly bored. The plaintiff knew nothing of them. Tbe ledge was afterwards brought down by blasting two of tbe boles.

Tbe plaintiff contends that tbe inferences deducible from these assumed facts, which we bave stated at considerable length in order that tbe conditions may be understood, were for the jury to draw, and that they were sufficient to justify a verdict for tbe plaintiff.

A servant tacitly agrees, by virtue of tbe contract of employment, to encounter and assume tbe ordinary risks incident to tbe service, one of which is tbe negligence of bis fellow-servants. In tbe case at bar tbe plaintiff and Running were fellow-servants in the employ of tbe defendant. But it is contended that because the plaintiff relied upon tbe defendant’s unkept promise io discharge Running for negligence and unfitness, tbe defendant assumed tbe risk and hazard of Running’s negligence which might thereafter cause-injury to tbe plaintiff, and became answerable for such negligence to tbe same extent as it would be bad tbe negligence been its own. For present purposes this may be granted, and it may be granted also that Running was negligent-, and that without bis negligence in boring six boles and leaving tbe ledge unsupported, tbe plaintiff Avould not bave been hurt. Assuming all this to be true, we are nevertheless of tbe opinion that tbe defense of contributory negligence was conclusively made out by tbe evidence of tbe plaintiff. He, an underground miner of many years’ experience, following a vocation dangerous to life and limb, and familiar with its risks, was engaged in making a place — a place which be was creating and changing as tbe work progressed. On Friday afternoon be blasted four boles in tbe center of tbe *450Raise oyer tlie man-way or middle chute; these boles were begun about a foot from the ledge of rock overhanging the east chute, which he sounded and found secure. He then went off shift, leaving the top of the timbers open under the east chute. Now, eliminate Running from the case, and consider the defendant (the master) as a natural person, in Running’s stead. The defendant immediately took up the work, drilling and blasting. In the ledge he bored six holes, when two- would have answered; this, we assume, was negligence. He failed to blast them or to sprag or support the ledge after the drilling; this, Ave assume, was also negligence. Next- morning, after the defendant had been at Avork all night, the plaintiff returned to resume his Avork in the same place. Standing on, the lower floor and looking up to see what ground had been blasted, he found the face of the raise, including the ledge over the east chute, entirely hidden from vierv by lagging across the top of the timbers and the usual Avay of access barred. He knew the invariable custom Avas to lag under the ground blasted, and to leaA’e the timbers ojien on the side not blasted or about to be blasted. He kneAV that drilling preceded blasting, and knoAV, or Avas bound to knoAV, either that the ledge over the east chute had been blasted or Avas in condition to be blasted. The lagging was equivalent to express notice by the defendant to the plaintiff that the ledge Avas insecure, — it served the purpose of a sign stretched across the ledge, declaring that in the progress of mining the ground had been shaken or rendered loose. It Avas unmistakable notice and Avaming to the plaintiff of the risk and *danger,*— res *ipsa loquebatur.*He found there Avas no Avay to reach the upper floor except through a space three feet wide between the stringers and the hanging-wall. This unusual mode of access and ingress he used, climbed over the girders and so got on, the top of the floor. He knew that blasting had been clone on the afternoon before; he knew that Avithin two hours there had been further drilling and blasting, and he was the first man to *go*into the place thereafter. His first duty was to pick doA\m the loose rock and inspect carefully the-*451ground to ascertain whether it was secure. He picked down all the rock that seemed to be loose and made some soundings of the walls. The ledge he did not sound, examine or inspect, though he could easily have done so. This he omitted because it looked solid and in the same condition it was on the afternoon of Friday. He gave it a glance, and as it wras spragged and supported, he thought it secure. It reached from wall to wall, overhanging the east chute three or four feet and stood three feet above it. Under it on the lagging he saw dirt. He got under it by stooping and kneeling; as he was in the act of rising, part of the ledge foil upon his body. Now, the plaintiff was bound, at his peril, to use ordinary care, — that is, such care and caution as men of common prudence, possessing his knowledge and experience, ' in the particular vocation, would or should have exercised if placed in the position of the plaintiff at the time of the accident. Extraordinary care was not required of him; but the slightest want of ordinary care on his part was negligence which, if it contributed directly to the injury, defeats the action. The plaintiff cannot recover if he could have avoided the injury by exercising ordinary care and caution. That he may not have understood the danger, or may have temporarily forgotten the risk, is of no moment; he was charged with knowledge and understanding of such dangers and risks as he might have comprehended and appreciated by using ordinary care; if he forgot, he was negligent,’ for he was bound to remember. The defendant was not required to take better care of the plaintiff than the plaintiff was of himself; the measure of the duty of t ach was ordinary care. The negligence of the defendant did not dispense with the necessity of the plaintiff’s using ordinary care. Such has been the unbroken rule since *Butterfield*v. Forrester, 11 East, 60, was decided, to the present day. By his own careless act in getting under the ledge without inspecting or sounding it, he voluntarily exposed himself to the risk of injury. The accident would not have happened had the plaintiff exercised due care and caution. His *452failure in that respect was an immediate cause of tbe injury. Could a jury rightly declare that an average man of common, prudence, similarly situated, would have acted as the plaintiff did? Did not the evidence so manifestly disclose the plaintiff’s negligence that a verdict for him would necessarily have to be vacated on motion for a new trial? In proving the circumstances of tli© accident and injury, lie succeeded in establishing for liis adversary the defense of contributory, or concurrent negligence. The evidence left no substantial doubt upon the subject; the average reasonable man, not biased by sympathy with the plaintiff nor prejudiced by interest could come, upon deliberation, to but one conclusion. A nonsuit was therefore properly granted. We are aware of the rule that the question, whether this defense lias been made out is usually for the jury to decide. The case at bar is clearly one of the exceptions.

All the specifications of error are disposed of by the foregoing considerations. Let the judgment be affirmed.

Affirmed.