of them. Also, when the danger is apparent to the servant, he has the right to object and to cease working, and it becomes his duty to do so if he knows the danger exists; but when the servant is not advised of the danger, when he is inexperienced, as is said to be the case here, then it becomes the duty of the master to give him better care than he would others, to advise him of the danger. If the master advises him of the danger, and the servant then assumes it, it is his own fault, and he must bear the burden himself." "(25) The master is not liable for injury to a servant resulting from the negligence of a fellow servant. This, however, is not a field for mere speculation on your part; but, to apply it to defendant's benefit, you must find from the evidence that the injury resulted from some direct, specific act of carelessness of the fellow servant. If a number of servants are working together in carrying on the general operations of the mine, and do their work in such a generally careless way that accident results, the master is still liable, because it is his duty to see that the general operations and work are properly done; but when the injury results from some direct, careless act of a fellow servant or fellow servants, which can be pointed out distinctly by the testimony, the master is not liable, for he cannot be required to watch and direct each individual act of each of his servants, but he can and must watch and direct their general, manner of working. To illustrate that: If two miners are working together in a mine, being fellow servants, and one of them through carelessness loosens a rock in the top of a stope, and drops it down on the head of the other and kills him, that would be the carelessness of a fellow servant, and the master would not be responsible for that. In other words, fellow servants have to bear the results of the acts of their fellow servants, when done in that way; but when it comes to a number of fellow servants working together, and under the general direction of the master, in carrying out the process of mining, carelessness there is something that the master must assume."

The claims of error are based upon the italicized portions of the instructions. In the consideration of these questions, it must be borne in mind that the entire charge must be taken as a whole. It is always easy to criticise certain sentences, which, taken disconnectedly from what appears before or after, may appear to be erroneous or to convey a wrong impression; but, when construed in the light of all that is said in the charge, it becomes manifest that the jury could not possibly have been misled by the isolated sentence complained of.

These remarks are specially applicable to instruction 22, under review. It is claimed that the italicized portion conveyed the idea to the jurors that it was their duty to determine the fact "through their own good sense," independent of the evidence. The jury was previously charged generally that it was its duty to determine all questions of fact from the evidence. The instruction in question, after the inadvertent expression referred to, explained that both classes of timbering are approved of, when properly done; and in other parts of the charge, not objected to, the court instructed the jury that it was its duty to determine from the evidence whether the work was properly done.

One of the objects of the rule requiring counsel to note their exceptions to the charge before the jury retires is to enable the court to correct omissions or mistakes, if any are inadvertently made. If the attention of the court had been called, as it ought to have been, to the fact that, instead of the jury determining the point "through their own good sense," it should be determined "from the evidence," it would undoubtedly have been corrected.

It is questionable whether this court ought to consider the objections made by counsel to instruction 22.

In Western Coal M. Co. v. Ingraham, supra, the assignment of error was based upon the omission of the word "reasonably" in the phrase "safe place to work." The court said:

"If the defendant intended to except to the absence of the qualifying word 'reasonably,' it should have pointed out the error specifically at the time. It could not object to the whole paragraph, which states the law accurately on one point, and in the appellate court, for the first time, rest its objection on the absence of a single qualifying word, the absence of which no jury would ever perceive, and which the court would readily have inserted if its attention had been called to the technical omission at the time."

The same court, in Western C. & M. Co. v. Berberich, supra, said: "If every slight defect or slip which a microscopic eye can detect in a question or answer or the charge of the court is to be counted prejudicial error, litigation will become interminable over subtle refinements and quibbles which were not seen or regarded by the judge or jury at the trial, and which had no bearing whatever on the decision of the case on its merits. Such an administration of the law would be intolerable."

We are of opinion that the principle of law announced in instruction 23 is correct. We also think it was applicable to the facts of this case. Van Buren was wholly inexperienced in mining. By going to work as a "mucker," he only assumed the ordinary risks and dangers incident to such employment. He had nothing to do with the timbering of the mine. He had the right to assume (not having any knowledge on the subject) that the timbering would be done by his employer in a proper manner. Union Pac. Ry. Co. v. Jarvi, 53 Fed. 65, 69, 3 C. C. A. 433, and authorities there cited; Western Coal & M. Co. v. Ingraham, 70 Fed. 219, 224, 17 C. C. A. 71; Swensen v. Bender, 114 Fed. 1, 7, 51 C. C. A. 627, and authorities there cited; Bunker Hill & S. M. & C. Co. v. Jones (C. C. A.) 130 Fed. 813, 818.

The vital point relied on by the defendants in error was that the plaintiff in error was careless and negligent in the timbering of the mine, and that the cave was occasioned by such neglect. Touching this theory of the case, the court was authorized to give this instruction.

In Mather v. Rillston, 156 U. S. 391, 399, 15 Sup. Ct. 464, 39 L. Ed. 464, where the plaintiff in the court below claimed that the injuries. he received were caused through the carelessness and negligence of the defendant "in storing the powder and caps in the house without informing him of the increased risk and danger of his remaining in employment therein," Mr. Justice Field, in delivering the opinion of the court, called attention to the fact that where occupations which are attended with danger can be prosecuted, by proper precautions, without fatal results, such precautions must be taken, and in this connection, among other things, said:

"So, too, if persons engaged in dangerous occupations are not informed of the accompanying dangers by the promoters thereof, or by the employers of laborers thereon, and such laborers remain in ignorance of the dangers, and suffer in consequence, the employers will also be chargeable for the injuries sustained."

It may be said that that was an extreme case. But if the testimony of defendants in error is worthy of belief-and the jury have so found -then the method of timbering in the mine in question left as great a hazard of danger as if powder or other explosives had been stored away in the upper levels. The principles announced by Mr. Justice

Field have been frequently followed in mining, railroad, and other cases. Burke v. Anderson, 69 Fed. 814, 817, 16 C. C. A. 442; Western Coal & M. Co. v. Ingraham, 70 Fed. 219, 221, 17 C. C. A. 71; Western C. & M. Co. v. Berberich, 94 Fed. 329, 333, 36 C. C. A. 364; Cincinnati Ry. Co. v. Gray, 101 Fed. 623, 628, 41 C. C. A. 535, 50 L. R. A. 47; Kelley v. Fourth of July M. Co., 16 Mont. 484, 497, 41 Pac. 273, et seq.

With reference to instruction 25, it is not claimed that Van Buren had anything to do with the timbering of the mine, or that it was any part of his duty to inspect or repair the same.

In Western Coal & M. Co. v. Ingraham, supra, the court said:

"The rule is well settled that, after a mine is once opened and timbered, it is the duty of the owner or operator to use reasonable care and diligence to see that the timbers are properly set, and keep them in proper condition and repair. For this purpose it is his duty to provide a competent mining boss or foreman to make timely inspections of the timbers, walls, and roof of the mine, to the end that the miners may not be injured by defects or dangers which a competent mining boss or foreman would discover and remove. This is a positive duty which the master owes the servant. A neglect to perform this duty is negligence on the part of the master, and he cannot escape responsibility for such negligence by pleading that he devolved the duty on a fellow servant of the injured employé. It is an absolute duty which the master owes his servant to exercise reasonable care and diligence to provide the servant with a reasonably safe place in which to work, having regard to the kind of work, and the conditions under which it must necessarily be performed."

3. This brings us to the exceptions taken to the rulings of the court in sustaining the objections to certain questions asked witnesses by the plaintiff in error. Of the eight assignments on this point, only two are discussed by counsel. These we will notice:

(1) The record shows that the witness Jones testified on behalf of the plaintiff in error that caves occasionally happen without premonitory symptoms of their coming. He was then asked:

"Q. Will you give us an idea as to what it is that will produce caves in mines without any premonitory symptoms of their coming, and notwithstanding the best method of timbering known to your profession? Mr. Campbell: Do you propose to show that any of those things were in existence there at that time? The Court: Unless that is connected with the actual facts as to that particular property, I should think the testimony would be irrelevant. Do you propose to show that some of these occurrences that he will testify to actually existed in that mine? Mr. Van Ness: I do not know whether I can do that or not. The Court: There is only one thing I want to know. I want an answer to the question I put to you, and that is whether you propose to connect his testimony with actual facts? Mr. Van Ness: I propose to rebut the testimony of some of these people that a cave cannot occur if a mine is properly timbered. The Court: The objection is sustained."

We think the ruling of the court was correct. The witness had already testified to the fact which counsel wished to impress upon the jury that caves might occur in properly timbered mines--and it was then sought to obtain the witness' idea as to what might cause such caves, without reference to any conditions existing at the mine in question. It may be that a hidden cavern filled with flowing water might seep through the upper levels and cause a cave, which human foresight could not guard against. But there is no pretense that anything of that kind existed at the time of the cave in question. It may be that a

volcanic eruption might cause a cave in a mine that was properly timbered, but nothing of that kind is shown to have occurred. The same as to an earthquake, and numerous other imaginary things. The court was right in restricting the testimony to conditions existing at the time, and refusing to enter into the wide field of speculation and conjecture as to what might cause a cave in a well-timbered mine. The question for the jury to determine was whether the cave was caused by the defective timbering of the mine, or by a "side thrust."

(2) The next exception has less merit. Upon cross-examination the witness Pemberthy was asked:

"Q. Did you ever suggest to the foreman or the shift boss or the head timberman, or anybody else, that there was any danger to you yourself while you were working in there by the falling down of that roof because it was unsupported?"

How could the defendants in error be in any manner bound by any omission upon the part of Pemberthy to suggest to the foreman or shift boss or head timberman of the corporation that there was danger in working in the mine on account of the defective timbering? The fact, if it be a fact, that Pemberthy did not report the danger, did not tend to impeach him, and did not tend to contradict his testimony as to the condition of the timbering. The most that could possibly be said is that, if the conditions were such as testified to by him, it would be natural for him to have spoken about it. It would, at best, only show that he was careless, and perhaps negligent, in not reporting the danger. We have examined the entire record with a view of ascertaining whether or not any prejudicial error occurred at the trial. Our conclusion is that the trial was in all respects fair and impartial, and free from such error.

The judgment of the circuit court is affirmed, with costs.

KANSAS CITY SOUTHERN RY. CO. v. PRUNTY,

(Circuit Court of Appeals, Fifth Circuit, October 4, 1904. On Rehearing, December 3, 1904.) No. 1,320.

1. FEDERAL COURTS-JURISDICTION-DUTY TO EXAMINE RECORd.

It is the duty of a Circuit Court of Appeals of its own motion to examine the record in a cause brought before it to test its own jurisdiction and that of the court below.

2. REMOVAL OF CAUSES-DIVERSITY OF CITIZENSHIP-SUFFICIENCY OF PETI

TION.

Where the jurisdiction of a federal court depends upon the citizenship of the parties, such citizenship, and not merely their residence, must be shown by the record; and a right of removal on the ground of diversity of citizenship is not shown by a petition therefor which does not allege the citizenship of the plaintiff, although his petition in the state court alleges him to be a resident of the state in which the action is brought.

3. SAME-IMPROPER REMOVAL-COSTS.

Where the judgment of a Circuit Court is reversed by the Circuit Court of Appeals on the ground that the cause was improperly removed from a state court, costs should be awarded against the removing party.

On Rehearing.

4. SAME AMENDMENT OF PETITION IN APPELLATE COURT-JURISDICTIONAL

AVERMENTS.

A Circuit Court of Appeals may properly permit the amendment in that court of a petition for removal by supplying an averment of citizenship requisite to give jurisdiction, where it appears that its omission was inadvertent and it is shown by stipulation of the parties that the requisite diversity of citizenship in fact existed.

5. MASTER AND SERVANT-ACTION FOR INJURY OF SERVANT-CONTRIBUTORY NEGLIGENCE.

Plaintiff stood on the footboard at the back of an engine to make a coupling to a car toward which the engine was moved slowly. The drawbar on the car was out of repair, and was not in line with that on the engine, and plaintiff attempted to shove the drawbar on the engine to one side with his foot, so as to meet that on the car, when the engine lurched by reason of a defect in the track, and plaintiff's foot was caught and crushed between the two drawbars. There was evidence tending to show that such manner of making a coupling was customary and safe under ordinary circumstances, and that plaintiff would not have been injured if it had not been for the defect in the track; also that there was no rule of the railroad company prohibiting brakemen from going between the cars to make a coupling or requiring the engine to be stopped while the drawbars were moved. Held, that under the evidence plaintiff Icould not be said as matter of law to have been chargeable with contributory negligence. Pardee, Circuit Judge, dissenting.

6. SAME-PROXIMATE CAUSE OF INJURY.

It is an essential element in contributory negligence to defeat a right of action for an injury that there should be a causal connection between the act charged as negligence and the injury, and when the act and the injury are not known by common experience to be naturally and usually in sequence, and the injury does not according to the ordinary course of events follow from the act, they are not sufficiently connected to make the act a proximate cause of the injury.

7. INSTRUCTIONS-SUFFICIENCY OF EXCEPTIONS.

A general exception to a charge, or to a portion thereof containing different propositions, is unavailing, if any of such propositions are correct.

In Error to the Circuit Court of the United States for the Western District of Louisiana.

Samuel W. Moore and J. D. Wilkinson (T. Alexander, on the brief), for plaintiff in error.

J. A. Thigpen, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY, Circuit Judge. This suit was brought in the First Judicial District Court of Caddo parish, La., by Clark Prunty against the Kansas City Southern Railway Company to recover damages for personal injuries received by the plaintiff, who is defendant in error, while acting as a brakeman in the employ of the defendant, who is plaintiff in error. The case was removed to the Circuit Court of the United States for the Western District of Louisiana on the application of the railway company, and was tried before a jury, and verdict and judgment had against the railway company.

There are limits imposed by law to the jurisdiction of the United States courts, and it is an inflexible rule that this court of its own motion should examine the record to test its own jurisdiction and the jurisdic