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lects or refuses to securely prop the roof of any place under his control," shall be guilty of an offence, etc., is intended to protect the lives and limbs of those engaged in a perilous business. It imposes an obligation to perform a duty to others, and anything which tends to operate in opposition to that obligation violates the policy of the statute.

In an action for damages for the death of such a miner caused by the falling of the roof of the mine, it was held that a custom at the particular mine, which imposes upon another employee the work of posting and propping the roof of a room in which coal is to be mined, cannot have the effect of exonerating the miner from the duty enjoined by the statute, nor shift the risk undertaken by himself to the company.

Krause v. Morgan, 53, 26 (1895). An employee cannot maintain an action under sec. 301 of the Revised Statutes for injury caused by wilful failure to comply with the requirements of the act as to keeping the mine free from gas, where the plaintiff is himself guilty of contributory negligence.

Coal Co. v. Estievenard, 53, 43 (1896). Under Rev. Stats. 6871 it is the duty of the owner, agent or operator of a coal mine to keep a supply of timber constantly on hand, and to deliver the same to the working place of the miner, and a failure so to do is negligence on his part, and if an injury is proximately caused thereby, an action will lie to recover damage therefor. But if the owner failed to supply the neces sary timber, and a miner knowing the roof to be unsafe went into and remained in the room, which he knew had not been propped, he is guilty of contributory negligence and cannot recover. When a sufficient supply of timber has been furnished by the owner, it is the duty of the miner to securely prop the roof; and if he fails to do so, whether through neglect or mistake in judgment, and sustains an injury thereby,

he cannot recover.

Honor v. Roberts, 5 L. L. R. 9 (1876). The act Pennsylvania. of March 3, 1870, sec. 24, does not relieve the party seeking to recover damages for injuries, from the operation of the rule as to contributory negligence.

D. & H. Canal Co. v. Carroll, 89, 374 (1879). A mine boss appointed under provisions of the act of March 3, 1870, is a fellow servant of the miners; and where the death of one of the latter is caused by the negligence of the former, the owners of the mine are not responsible, unless it is shown that they employed as mine boss an incompetent man, knowing him to be such, or employed him without knowledge of his capacity or fitness, or without making such inquiries as to his qualifications as a man of ordinary prudence would do.

Waddell v. Simoson, 112, 567 (1886). Where mine operators have complied with the act of March 3, 1870, and provided a practical and competent overseer or mine boss, they are not liable for damages to any other employee caused by his negligence.

Mine boss and driver boy employed to haul coal from the chambers of the mine are fellow servants.

Redstone Co. v. Roby, 115, 364 (1886). A mining boss, under the act of April 28, 1877, P. L. 58, is a fellow servant with the miner, for whose negligence his employer is not liable. He is a creature of the legislature, selected by the operator of a coal mine in obedience to the

command of the law, and in the interest and for the protection of the miners; where, therefore, reasonable care in his selection has been exercised, the operator is not liable for injuries resulting from his negligence. The operator of a coal mine fulfils the measure of his duty to his employees if he commits his work to careful and skilful bosses and superintendents, who conduct the same to the best of their skill and ability. Christner v. Cumberland & Elk L. C. Co., 146, 67 (1892). Injuries received by a coal miner having been caused proximately by his own negligence, his right of action against the mine owner therefor is not supported by proof of the defendant's violation of the provisions of the act of June 30, 1885, P. L. 205, when the violations in no way proximately caused or contributed to the injuries.

Lineoski v. Susquehanna Coal Co., 157, 153 (1893). A mining boss under the act of June 30, 1885, is the fellow servant of other workmen engaged in the mine, and if proper care has been exercised in selecting a competent person for the position, the employer is not liable for his negligence.

The provision of rule 24 of the 12th article of the act of June 30, 1885, requiring the mine owner to give notice of any apprehended danger to the mine foreman, does not make the latter the representative of the former for all purposes, so as to charge the owner with liability.

Opinion of Attorney-General, 14 C. C. R. 447 (1894). Under the act of May 15, 1893, the mine foreman and mine boss, in addition to having knowledge and practical experience, must be able to read and write.

Mulhern v. Lehigh Valley C. Co., 161, 270 (1894). The act of June 30, 1885, requiring the employment of a sober and competent engineer, does not change the common law rule of the employer's liability for the acts of his employee. A mining company is not liable for an injury to a miner caused by a mishoist by the engineer, where there is no evidence that the company had knowledge that the engineer was incompetent.

Gray v. Germania Coal Co., 164, 508 (1894). Where the mine owner has placed the entire control and management of the inside operation of his mine in the hands of a mine boss having a ceritficate of competency, as provided by the act of June 30, 1885, P. L. 205, whose competency is not questioned, the mine owner is not liable for negligence in such operation unless he personally participated therein. The question of his personal participation is for the jury.

Sec. 8, art. 17,

Durkin v. Kingston Coal Co., 171, 193 (1895). of the act of June 2, 1891, in so far as it imposed liability of the mine owner for the failure of a mine foreman to comply with the provisions of the act which compels his employment and defines his duties, is unconstitutional and void. The State having certified to the competency of the foreman, and compelled his employment, cannot make the mine owner responsible for his incompetency and negligence.

A mine foreman who neglects to examine the roads and ways in use in each mine each day, as required by the act of June 2, 1891, is liable personally for injuries sustained by a miner resulting from his neglect.

Graham v. Newburg Oriel C. & C. Co., 38, 273

West Virginia. (1893). The omission by the operator of a coal mine

of the duty to provide the means of ventilation and to employ fire and mining bosses, as required by Code of 1891, p. 991, and acts of 1887, ch. 50, is negligence, and renders him liable to an employee for injury resulting from such omission of duty.

APPENDIX.

UNITED STATES STATUTES.

MINERAL LANDS AND MINING RESOURCES.

In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law. Rev. Stats. 2318.

Mineral lands reserved.

The following classes of lands, unless otherwise spe- Mineral lands not cially provided for by law, shall not be subject to the subject to pre-emprights of pre-emption, to wit:

Fourth. Lands on which are situated any known

salines or mines. Rev. Stats. 2258.

tion

Nor shall any mineral lands be liable to entry and nor to homestead settlement under its [chapter on Homesteads] provi

sions. Rev. Stats. 2302.

Town-site entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law.

When mineral veins are possessed within the limits of an incorporated town or city, and such possession is recognized by local authority or by the laws of the United States, the title to town lots shall be subject to such recognized possession and the necessary use thereof, and when entry has been made or patent issued for such town sites to such incorporated town or city, the possessor of such mineral vein may enter and receive patent for such mineral vein, and the surface ground appertaining thereto: Provided, that no entry shall be made by such mineral-vein claimant for surface ground where the owner or occupier of the surface ground shall have had possession of the same before the inception of the title of the mineral-vein applicant. Act of March 3, 1891, ch. 561, sec. 16; 26 Stat. L. 1095; Supp. to Rev. Stats., Vol. 1, p. 945.

entry.

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