The allegations of the petition do not present the case of a trap or concealed danger of which the defendant was bound to give notice. It is not shown that the dangers were not apparent, or could not have been seen by the intestate. There is neccssarily some degree of danger in all mines, and such dangers are increased by the age of the supports of the roof and other causes. It is not shown that these dangers were concealed by defendant and the intestate was induced or invited by defendant to expose himself thereto.

We conclude that the g ounds of the demurrer which we have discussed were well taken, and the court correctly held the petition defective. The other objections raised by the demurrer need not be discussed.

Judgment affirmed.

HONOR V. ALBRIGHTON.

(93 Pennsylvania State, 475. Supreme Court, 1880.)

Statute construed-Fellow servant's contributory negligence. A lad about thirteen years old was employed as a slate picker in a coal breaker. Another lad who was attending the machinery called to him to bring him the oil can; he left his post, and in taking the can fell into a pair of rollers breaking coal where he was severely injured. It appeared that the rollers were covered with a box upon the top of which was an opening covered by a plank, which was displaced at the time of the accident, and was so often before with the knowledge of the injured boy; Held, that the provision in the act of March 3, 1870, that all machinery where boys work shall be properly “fenced off" was intended to mean properly protected, and that in providing this cover for the rollers the employer did his whole duty under the act Held, further, that if the cover was unnecessarily removed without the fault or knowledge of the employer, through the negligence of one of the employes, there could be no recovery according to well settled. principles. Held, further, that the conduct of the boy presented a case of contributory negligence.

Error to the Common Pleas of Luzerne.

Case, by John Honor against John Albrighton and others, doing business as Albrighton, Roberts & Co., to recover damages for injuries to the minor son of the plaintiff, alleged to have been caused by the negligence of defendants.

It appeared at the trial that Edward Honor, the minor son of the plaintiff, was in 1871 employed at the defendant's coal breaker at Plymouth, Luzerne county, as a slate picker. In breaking coal it is passed through rollers and broken into the various sizes required for use, and after being broken it is shot down chutes to storing places, whence it is loaded into the cars. Boys stand by the sides of the chutes, and, as the coal passes by, pick out the slate therefrom. This was the daily employment of young Honor, and while thus engaged, on the 15th of September, 1871, at the lower portion of the breaker, there was just above him a pair of rollers called the "monkey-rollers." His place as a slate picker was about twenty feet below these rollers, and did not in any way expose him to danger from them. The lad, who was about thirteen years old, was engaged at his usual work, when a boy named Hobbs, who was attending the machinery above, called to him loudly to bring him the oil can, which was by the stove near Edward to be kept warm. The latter seized the can and ran up rapidly toward Hobbs, when, just before he reached him, he stepped into the monkey-rollers and his leg was caught and crushed by them.

The opening over the small rolls was six inches wide, and two feet eight and a half inches long; this opening was secured with a plank fitting into the opening, and which could not be removed except by lifting it up. When the plank was down there was entire security against any danger from the rolls. The plank was intended to be removed if the rolls became choked, for the purpose of clearing them out. The plank was displaced at the time of the accident, as it frequently had been before, to the boy's knowledge.

The act of March 3, 1870, Pamph. L. 3, making provision for the health and safety of persons employed about coal mines, enacts in the 13th section that "all machinery in and about the mines, and especially in the coal breakers, where boys work, shall be properly fenced off," and the 24th section provides: "That for any injury to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action shall accrue to the party injured for any direct damages he may have sustained thereby, etc."

In the general charge the court, HARDING, P. J., inter alia, said:

"But conceding that the statute amounts to more than a reiteration of the common law, with reference to the right of an employe who has been injured about one of these collieries, and who brings an action to recover compensation, still, in my judgment, it does not absolve him from the same rule of conduct in connection with the subject-matter of the injury that applied before. Contributory negligence on his part would be as fatal to the success of his action to-day as it would have been before the statute had existence.

"Assuming the colliery in question to have been dar gerous; assuming, further, that these defendants were guilty of negligence in not having complied with all the provisons of the act to which reference has been made, still [if the boy, Edward Honor, knew, as he says he did, of the condition of these rollers, and of the danger in approaching them, but nevertheless, at the call of his co-employe, hastened to deliver the oil can, an errand wholly outside of his own duty, and injury befell him, as has been described, his father can not recover in the present The conduct of the boy can not be regarded as less than negligent.] [We have then only to say to you that the plaintiff is not entitled to recover, and that your verdict must be for the defendants.]

action.

The verdict was for defendants, and after judgment thereon, plaintiff took this writ, alleging that the court erred in the portions of the above charge included in brackets.

A. RICKETTS, JOHN LYNCH, C. R. BUCKALEW and W. J. BuckALEW, for plaintiff in error.

C. L. LAMBERTON and ANDREW T. MCCLINTOCK, for defendants in error.

PER CURIAM.

The act of March 3, 1870, ought to have a liberal but rea. sonable construction. In providing that the machinery in and about the mines and coal breakers "shall be properly fenced off," it evidently intended merely proper protection. Then, to protect the opening into which the plaintiff fell, a

fence, in its literal sense, would not have been as efficient protection as the board used to cover the opening. In providing this cover the employer did his whole duty under the act. If that cover was unnecessarily removed without his fault or knowledge, through the negligence of one of the employes, no other servant could recover according to well settled principles. The conduct of the boy presented a case of contributory negligence. It was not the intention of the act of assembly to change these just and reasonable rules.

Judgment affirmed.

1. Neglect of railway company to sufficiently drain surface after excavating way over mines: Bagnall v. London, etc. Co., 5 M. R. 362, 366.

2. Master's liability to the public for injury done by a servant, and his exemption from liability to one servant for injury done to him by fellow servant: Bartonshill C. Co. v. McGuire, 3 Macqueen, 300. See also Bartonshill C. Co. v. Reid, Id. 266.

3. The owner of a dam is bound to so control it as not to injure his neighbors, and the want of caution on the part of the injured person is no defense to an action for such injuries: Fraler v. Sears W. Co., 12 M. R.

4. The mere fact that the timbers of a dam outwardly present a strong appearance does not necessarily show due diligence in making it safe: Hoff. man v. Tuolumne Co., 10 Cal. 413.

5. An owner of land is under no legal obligation to fence a quarry on the land, unless it is so near to a public road or way as to constitute a public nuisance: Hounsell v. Smyth, 7 C. B. N. S. 731.

6. In determining what is proximate cause, the true rule is, that the injury must be the natural--a probable, consequence of the negligence: Hoag v. Lake Shore R. R., 85 Pa. St. 293.

7. Knowledge as an ingredient of negligence: Knaresborough v. Belcher Co., 12 M. R.

8. Fire resulting from tow boat towing leaky oil barge: The James Jackson, 9 Fed. 614.

9. Storing gunpowder may amount to a nuisance and render the owner liable, although not guilty of negligence with respect to the act which exploded it: Myers v. Malcolm, 6 Hill, 292;41 Am. Dec. 744.

10. Storing of powder in a warehouse held to be the proximate cause of the loss of other goods, which would have been saved by firemen had they not feared an explosion: White v. Colorado Central R. R., 5 Dillon, 428.

11. Obligation of mine owner to the owner of the surface to fence shaft, and liability for failure so to do: Williams v. Groucott, 4 B. & S. 149; Post SURFACE.

12. Ignorance no excuse for working across dividing line between mining claims: Maye v. Yappen, 10 M. R. 101.

13. Under the Nevada Statute, there may be a recovery for death by wrongful act, without setting forth in the complaint that there are kindred;

and it is immaterial whether the death is immediate or consequential: Roach v. Imperial M. Co., 7 Fed. 698.

14. Miners had excavated into the side of the road, making a precipitous bank. No guard was put up; in consequence, a wagoner's team was injured. Held, negligence of the supervisors, for which the township was liable: Lower Macungie v. Merkhoffer, 71 Pa. St. 276.

15. Notice to agent of unsafe condition of mine, is notice to principal: Quincy Coal Co. v. Hood, 12 M. R.—.

16. Plaintiff can not recover if his own want of care contributed to the accident. It must, however, be not only his act, but his fault, which so contributed: Lopez v. Central Arizona Co., 2 Pac. 748.

17. Knowledge of danger without making complaint: Id.; Alexander v. Tennessee Co., 3 Pac. 735.

18. The foreman not a fellow servant: Beeson v. Green Mt. Co., 57 Cal. 20.

19. Corporation liable for accidents from contractor's blasting: Stone v. Cheshire R. R., 19 N. H. 427; 51 A. D. 192.

20. Responsibility shifted by contract from owners to contractors: Samuelson v. Cleveland Co., 43 Am. R. 456; 49 Mich. 164.

21. Estoppel by contract against enjoining nuisance: Kennerty v. Etiwan Phosphate Co., 17 S. C. 411; 43 A. R. 607.

22. Lessor not responsible to servant of lessee, even where servant is ignorant of the letting: Crusselle v. Pugh, 67 Ga. 430; 44 A. R. 724.

23. Foreman remaining after negligence known; failure to employ sufficient hands: Alexander v. Tennessee Co., 3 Pac. 735.

24. Injury by blasting where two companies allowed each other to throw rocks on one another's land: Beauchamp v. Saginaw Co., 45 A. R. 30; 50' Mich. 163.

25. Transportation of nitro-glycerine: Foley v. Chicago Co., 48 Mich. 622.

26. Degree of care required of master: Buckley v. Gould & Curry Co., 14 Fed. 833.

27. A party may be held liable for the consequences of failure to keep his ditch bed clear of debris: Chidester v. Cons. Ditch Co., 59 Cal. 197. 28. Defendant held liable for taking inexperienced employe into dangerous place without warning: Parkhurst v. Johnson, 50 Mich. 70.

29. Company chargeable with knowledge of reputation of unfitness of employe, causing the accident: Daris v. Detroit R. R. Co., 20 Mich. 105. 30. Experimenting with new explosives: Smith v. Oxford Co., 2 M. R. 208; Spelman v. Fisher Co., 56 Barb. 151.

31. Accidents from defective ropes: Baker v. Allegheny R. R., 95 Pa. St. 211; 40 Am. R. 634; Perry v. Ricketts, 9 M. R. 687. From decay of timbers: Quincy Co. v. Kitts, 42 Mich. 34.