track now occupied by any established territorial or county road, said corporation shall be responsible to the county commissioners of said county or counties in which said territorial or county road so appropriated is located, for all expenses incurred by said county or counties, in relocating and opening the portion of said road so appropriated. "

It is evident that, under the provisions of this law, the relocating and opening are conditions precedent to the right of recovery of damages. The language is for all erpenses incurred. The allegation of the complaint is that the expense of relocating and opening will be the sum of thirty thousand dollars. There is no allegation that there has been a relocating or opening, or even that there will be a relocating or opening. The statute may not be a good one, but it is certainly a plain one, and is not susceptible of construction.

The complaint does not state a cause of action, and the judgment of the court is, therefore, affirmed.

STILES, HOYT, SCOTT and ANDERS, JJ., concur.

[No. 828. Decided June 30, 1893.]

HANNAH MORGAN et al., Respondents, v. CARBON HILL COAL COMPANY, Appellant.

NEGLIGENCE-COAL MINING -VENTILATING MACHINERY

- FELLOW

SERVANTS-CONTRIBUTORY NEGLIGENCE -NON-SUIT.

The fact that a coal mining company had stopped its ventilating machinery from Saturday night until Sunday night does not constitute negligence when coupled with the fact that the machinery had been started and continuously run for a period of twelve or fourteen hours before an explosion of gas occurred on Monday morning. (DUNBAR, C. J., dissents.)

A "fire boss" in a coal mine, whose duty it is to direct the men to leave the place where they are working and go to another place

37-6 WASH.

Opinion of the Court-HOYT, J.

[ 6 Wash.

if, in his opinion, continuance at work in such place is dangerous, but who has no control of the action of the miners in the prosecution of their work, does not stand in the position of a vice principal. (DUNBAR, C. J., dissents.)

Where a miner assured a "fire boss" about to test the air in a gangway in a mine that there was no gas there, and the "fire boss" resting upon such assurance opened his lamp to light his pipe, and an explosion ensued, killing the miner, such remark on the part of the miner amounted to contributory negligence.

Although a defendant may go into his defense after the denial of his motion for a non-suit, he is entitled to the benefit of such motion if, at the time the proofs are finally closed, they are not sufficient to establish a prima facie case for the plaintiffs.

Appeal from Superior Court, Pierce County.

Judson & Sharpstein, for appellant.

R. P. Daniels, Hudson & Holt, and J. S. Whitehouse, for respondents.

The opinion of the court was delivered by

HOYT, J.-The motion for non-suit made by the defendant at the close of the plaintiffs' case should have been granted. At that time there was absolutely no proof tending to show any negligence on the part of the company. On the contrary it affirmatively appeared from such proof that the company had taken every precaution required by law and custom to protect its employés while working in the mine. And as it is not claimed that the company is a guarantor of the safety of its employés while so working, there could be no liability in the absence of some negligence on its part. The only acts, excepting those of an employé by the name of Jones, claimed by the respondents to have shown negligence on the part of the company, was that of the stoppage of the ventilating machinery from Saturday night until Sunday night preceding the accident, which occurred on Monday morning at about 9 o'clock. But there is no proof whatever in the record tending to show that

June, 1893.]

Opinion of the Court

HOYT, J.

such stoppage of the machinery during such interval, when coupled with the fact of its being started and continuously run for a period of twelve or fourteen hours before the time of the accident, was in any manner an act of negligence on the part of the company.

As to the acts of the employé Jones we think the proof does not show that at the time of the accident he stood in the relation to the deceased of a vice principal of the company. We are satisfied with what was said by us in the opinion in the case of Sayward v. Carlson, 1 Wash. 29 (23 Pac. Rep. 830), but we do not think that under the definition of a vice-principal therein given, Jones occupied such a relation to the company. He had by virtue of his employment no right to control the action of the miners in the prosecution of their work. Such control was vested in another employé of the company known as the "inside boss." The only control, if any, that Jones, as "fire boss," had of the men was to direct them to leave the place where they were working, and go to another place if their continuance at work in the first place was in his opinion dangerous; but even if we assume that in determining that question and directing the employés by virtue of the authority so given him he would be acting as a vice principal, it does not follow that at the time of the accident he was engaged in the duty required of him as such vice principal. In the situation in which he found the deceased party and the witness Williams, and while they were together up to the time of the accident, he had by virtue of his duties as "fire boss" no right whatever to control their action. Consequently, at that time he did not stand in any such relation to them as would make the company responsible for his acts.

Besides, it clearly appeared that if said Jones was guilty of such negligence as occasioned the accident, the deceased party was guilty of contributory negligence. If any one

Opinion of the Court - HoYT, J.

[6 Wash.

had any reason to suspect the presence of dangerous gases at the point where they were, he had under the proof the same reason to suspect its presence. If he did suspect such to be the fact his remaining in that spot for the time he did, engaged in conversation having no reference to the prosecution of the work of the mine, was in itself an act of negligence on his part. If he did entertain such suspicion there is no reason to suppose that Jones did, and in its absence what he did would not necessarily show negligence on his part.

Further, we think it appears affirmatively from the proofs offered on the part of the plaintiffs that deceased actively contributed to the act of Jones, which, it is claimed, led to the accident, by the remark which he made to him just before the explosion occurred. The only reasonable explanation of the action of Jones when he commenced to get up with his lamp above his head is that it was his intention to test the air close to the roof of the passage for the purpose of ascertaining whether or not there was any gas in that locality, and his reply to the remark at that time made to him by the deceased shows that he rested upon the assurance of the deceased that there was no gas there, and that for that reason he could safely open his lamp for the purpose of lighting his pipe without making any further investigation.

On each of the grounds, then-(1) That there was no sufficient proof tending to establish negligence on the part of the company; (2) that if such negligence was shown it affirmatively appeared from the proofs that the deceased contributed thereto - the plaintiff had failed to make a case against the defendant, and the motion for a non-suit should have been granted, and whatever may be held as to the effect upon such motion of the defendant going into its defense, it is clear that it is entitled to the benefit of such motion if, at the time the proofs are finally closed, they

June, 1893.]

Dissenting Opinion- DUNBAR, C. J.

are not sufficient to establish a prima facie case of liability to the plaintiffs.

After a careful examination of all the proofs in the record we are unable to find anything which could in any manner aid the plaintiffs' case. The judgment must be reversed, and the cause remanded with instructions to grant the non-suit, as moved for by the defendant.

STILES and ANDERS, JJ., concur.

SCOTT, J., concurs in the result.

I think in the

DUNBAR, C. J. (dissenting). I dissent. first place that the negligence of the respondent was clearly proven. Not only the statutory law but the common law and the law of common justice imposed upon the respondent the duty of protecting its employés from any danger which prudence could prevent.

The testimony shows that the ventilating fan which. forced the air into the mine, and which air found egress by passing through the gangway, had not been operated from Saturday evening until Sunday night immediately preceding the explosion Monday morning. It is clear to my mind that if this fan had been kept in constant operation, the gangway in which the plaintiff stood at the time of the accident would have been clear of gas, and the explosion could not have occurred. The duty of the company did not end with operating this fan six days in the week; its duty was to operate it as long as it was necessary to properly ventilate the mine.

There is a weak attempt to make it appear that it was necessary to stop the fan one day out of seven for repairs; but the testimony absolutely fails on this point, and would not amount to a defense if it were true; for if it becomes necessary to stop a fan for twenty-four hours for repairs, the work must stop until such repairs are made and the mine again made safe for occupancy by the miners. The