instructions that they tend to confusion and | versy about them. The issue between the misapprehension, and when they make his parties is as to the amount and sufficiency duty relative instead of absolute, as required of ventilation, its obstruction, the accumulaby the act of Congress of March 3, 1891, making the test what a reasonable person would tion of explosive gases, their negligent ignition, whether by a fellow servant of plain3. The duty of a mine owner as to ventilation tiff's intestates or by a representative of the of his mine and keeping it clear of standing defendant, making it liable, or whether the gas is made imperative by the act of Congress explosion was of powder accidentally igof March 3, 1891, and the consequence of neg-nited. lecting it cannot be excused because some workmen may disregard instructions.

We do not think that it is necessary to re- The gas is explosive when mixed with cerpeat the descriptions. There is no contro- tain proportions of atmospheric air. It is

lighter than air, and therefore dispelled by | of the territory said that it was "unnecesa current of air, and this was the means nec- sary for us to consider the objections urged essary to be employed to disperse the gas. to the instructions given by the court below. The gas when it explodes moves against the In our opinion they were all in favor of the opposing current of air. In other words, plaintiff, as the court should have granted expends its force in the direction from which the motion of the defendant, and instructed the air comes. the jury to find the defendant not guilty."

On Sunday night Kilpatrick, the foreman, discovered enough gas in room 8 to crack his safety lamp, but he did not regard it as sufficient to mark the place dangerous.

On Monday morning (the explosion was on Wednesday) the day fire boss found gas in room 8, and put a danger mark above the last cross cut, but did not go back to the room again, although he knew that it was one of the worst rooms in the mine for gas. He testified that he considered the danger mark sufficient.

On Monday night before the explosion, Ray, the night fire boss, was at the face of room 8, and found no fire marks, but found a little gas, and put fire marks in the room. He inspected the mine on Tuesday, but did not visit room 8..

Donahoe, mine foreman, Fliek and Kelly, two "company men," were killed by the explosion, and their bodies were found in or near room 8.

The conclusion which plaintiff claimed to be established by the evidence is, that Flick and Kelly went with Donahoe, under whose direction they worked, into room 8 with naked lights, and that an explosion was caused by the gas in the room coming in contact with the lights.

In support of this conclusion it stated the theory of the plaintiff to be that the explo sion was caused by an "accumulation of water previous to the explosion in a low place in the fourth left air course, a sufficient quantity of pure air was not going to the face of the workings in the fourth left entry to remove and expel the noxious gases; that Kelly and Flick, who were company men, that is, men who were paid by the day and not according to what work they did, acting under instructions from Donahoe, the day pitboss, went with him or by his direction into room 8 to remove a railroad track, carrying naked lights, and that such lights set fire to the gas which had accumulated there by reason of the insufficiency of air, and caused the explosion. This theory is purely speculative, and is not supported by the evidence. It cannot be positively proved what was the initial point of the explosion or what caused it. In fact, the evidence goes to show, from measurements taken at various times by the superintendent of the mine, the pit-boss, and the United States inspector, that sufficient air was going through the fourth air course and mine to make it safe. Indeed, the evidence goes further, and shows that after the explosion and on the day of the investigation by the coroner's jury, and while much of the débris caused by the explosion was still in the fourth left air course, a sufficiency of air was passing through it over the water and débris through the low place, which is claimed by the plaintiff to have been obstructed by water, for the proper ventilation of the entry and its rooms and the expulsion of all harmful gases, and for the men and animals working there at the time of the explosion. There is no evidence that the condition of the fourth left air course was the direct or proximate cause of the explosion, and for the plaintiff to recover this must be proved by a preponderance of evi

The defendant, on the contrary, contended that the "explosion was of some kind or other at or in the neighborhood of room 16 in the fourth left entry of the mine, where the deceased were working as coal miners." It is claimed that the cause of the explosion is altogether of conjecture and surmise, and that the greatest evidence or effect of explosion and fire appeared in the neighborhood of rooms 16 and 17. in the entry way thereabout, and that some powder cans were found exploded, and coal dust was found coked on some of the pillars on the back of a car, and car loaded with coal was moved several feet off the track. It is hence conjectured that the explosion was caused by some neg-dence." ligent or accidental ignition of powder which The court also held that Flick, Kelly, and instantly set fire to the coal dust, which Donahoe were fellow servants of the demore or less impregnated the air and the en- ceased; therefore, if the contention of the try ways, and of particles of gas which might plaintiff was true, that the gas was ignited be found in the hollows and crevices; so that by their negligence, the defendant had no death would be caused by concussion, or by the after damp caused by the explosion. Or cause of action. it is conjectured again that the explosion might have been caused by some miner, while working, suddenly striking a seam or body of gas, which was ignited by his light, and thus ignited powder near at hand.

At the close of the testimony the plaintiff and the defendant asked for peremptory instructions for their respective sides, which was refused.

The assignments of error are based on exceptions to evidence and on exceptions to instructions.

In passing on the case the supreme court

We have read the evidence, and we cannot concur with the supreme court of the territory that the trial court "should have granted the motion of the defendant, and instructed the jury to find the defendant not guilty." It was for the jury to determine from the evidence the place of the explosion and its cause, and what, if any, negligence the defendant was guilty of, and the evidence offered on the issues required the submission of those questions to the jury.

The effect of the act of Flick, Kelly, and Donahoe we will consider hereafter.

"9. Negligence is defined to be the omis- "11. Although you may believe from the sion to do something which a reasonable evidence that the fellow servants of the deman, guided by those considerations which ceased by their negligence contributed to the ordinarily regulate the conduct of human af- bringing about of the explosion in which defairs, would do, or the doing something ceased were killed, yet, if you also believe which a prudent and reasonable man would from the evidence that the negligence of denot do. It must be determined in all cases fendant also contributed to the same result, by reference to the situation and knowledge you must find a verdict in favor of the of the parties and all the attending circum- plaintiff, unless you believe from the evistances. If an occupation attended with dence that plaintiff's intestates, or one of danger can be prosecuted by proper precau- them, knew, or had means of knowledge, of tions without fatal results, such precautions such negligence of defendant, and, notwithmust be taken by the promoters of the pur-standing such knowledge or means of knowl suit or employers of laborers therein. All edge, continued to work in the mine of deoccupations producing articles or works of fendant.

"12. The law requires that the defendant stated in the evidence, and believe from the shall keep the workings in its mine clear of evidence that the explosion testified to origistanding gas, and if you believe from the evi-nated in room 8, and further believe from dence the defendant failed to keep the work- the evidence that signals of the kind deings in its mine clear of standing gas, and that such failure contributed to the deaths of the deceased, then you are justified in believing defendant guilty of negligence, and you must find a verdict in favor of the plaintiff, unless you believe from the evidence that the plaintiff's intestates or one of them knew of the existence of such gas and continued to work in the mine of defendant with such knowledge.

scribed in the evidence warning against entry into said room were placed in such a manner as to be observed by the deceased Flick and Kelly, and the meaning and significance of such signal was understood by them, and such signal was known to be in use by the miners engaged in working in said mine, and that the use of such signal was understood by such miners to inform them of the presence of gas in dangerous quantity; then, if the jury believe from the evidence that such explosion was caused by Flick and Kelly entering said room with a naked light, the defendant is entitled to, and you should render, a verdict in its favor."

"13. If the jury believe from the evidence that the plaintiff's intestates knew or had reason to know that dangerous bodies of gas were permitted to accumulate in the open places of defendant's mine and to remain for a period of thirty-six hours or more, without any effort on the part of the agents and the servants of defendant to move the same, and that no precautions against the explosion of such gases were accustomed to be taken except to mark the open place where such gas might be with a danger mark, and plaintiff's intestates, notwithstanding such knowledge or means of knowledge, continued to work in said mine, the plaintiff's intestates thereby properly and sufficiently supplied with air, assumed the risk incident to such method, and cannot recover if their fellow servants ignited such gas by going over or disregarding such fire mark.

"14. If you believe from the evidence that the explosion originated in room 8 of the fourth left entry of the mine in consequence of the accumulation in said room of a body of dangerous gas, merely guarded by a fire mark or danger signal for thirty-six or forty eight hours before the explosion, and that plaintiff's intestates did not consent or agree to work in said mine with places dangerous because of gas merely guarded by fire marks or danger signals for thirty-six or forty-eight hours, then plaintiff is entitled to recover in each case, although you may also believe that said body of dangerous gas was ignited by the negligence of fellow servants of plaintiff's intestates."

The main charge of the court was not objected to. The objections were to certain instructions given at the request of the defendant.

They were as follows:

"1. The jury are instructed that what was required of the defendant in the conduct of its mining business, in caring for the miners employed by and engaged in working its mine, was the adoption and use of appliances and methods reasonably sufficient for the protection of the miners against any dangers attending the operation of its mine that were obvious or might with reasonable diligence have become known; and, in the absence of evidence to the contrary, it is presumed that the defendant performed its entire duty towards the miners in that respect.'

"10. The burden of showing negligence on the part of the defendant, that caused the death of the persons for which this action is brought, is upon the plaintiffs, and evidence has been introduced for the purpose of showing an obstruction of the air course through which that portion of the mine where the deceased persons worked was ventilated. The presumption is that the mine was unless the evidence offered establishes the contrary, and to do this the jury must find, not only a partial obstruction of the air course, but that the obstruction was of such a nature and to such an extent as to prevent the passage of the necessary quantity of air; and if, upon the whole testimony, the jury believe that, notwithstanding the partial obstruction existed, there still was space enough in the air course unobstructed to allow the proper and sufficient ventilation of the mine and of the fourth left entry where such deceased persons were at work, you will find a verdict for the defendant, unless you find from the evidence that the negligence of the defendant in some other way caused or contributed to the death of such persons.

"11. If the jury shall believe from the evidence that the defendant permitted fire gas to accumulate in room 8 of its mine, and that such gas would not produce any injury until ignited, and that it was ignited by Flick and Kelly, or either of them, by going into the said room with a naked light (contrary to the rules and orders of the defendant), and by such naked light the fire gas was ignited and exploded, causing the death of plaintiff's intestates, such explosion and injury were directly and immediately caused by the act of the fellow servants of plaintiff's intestates, and not by the negligence of defendant, and defendant is not liable therefor; and a verdict should be rendered for the defendant."

The act of Congress makes three requirements—

(1) Ventilation of not less than 55 feet of pure air per second, or 3,300 cubic feet "6. Although the jury may believe from per minute, for every fifty men at work, and the evidence that gas of the quantity men- in like proportions for a greater number; tioned in the evidence had accumulated and (2) proper appliances and machinery to was allowed to remain in room 8 for the time force the air through the mine to the face of

But, aside from the statute, it is very disputable if the instructions were correct. It is undoubtedly the master's duty to furnish safe appliances and safe working places, and if the neglect of this duty concurs with that of the negligence of a fellow servant, the Argued and Submitted April 27, 1900. Demaster has been held to be liable. Clark v. Soule, 137 Mass. 380; Cowan v. Chicago,

M. & St. P. R. Co. 80 Wis. 284, 50 N. W. 180; State of Minnesota to review a decision IN ERROR to the Supreme Court of the