"Q. by Mr. Perry: From what you have seen and know of the mine at the time the accident occurred, on the morning of the 1st of March, 1900, would you say that that portion of stope 4 where these men were working was in a safe condition for men to be put to work in? A. I would testify it was not. Q. And why would you say it was not? A. The fact that the timbers- The back was not properly caught up."

And at another point, with reference to the falling of the cave:

"Mr. Perry: Q. What I want to know, Mr. Pemberthy, is, did it come down suddenly, or was there a gradual cracking and popping? A. It came down suddenly in that portion of the stope, and then it started to cave both ways. Q. The center of the stope, so far as you could judge, caved first? A. Yes, sir. Q. And it came down with a sudden crash? A. Yes, sir. Q. And then the cave extended? A. Both ways. Q. So far as you could tell? A. Yes, sir."

Lundwick testified that he was timbering at the place where the accident occurred the day before and the night of the accident until a late hour; he was on top of the timbers, and could see it was open above; that the timbers did not reach up so as to support the roof or back of the stope; that many places were not cribbed; that a cave occurred the evening before the accident which broke down the staging upon which they were working putting in timbers; that a man working with him who stood on top of the timbers could not reach the back of the stope without extending the six-foot staff or pole. He gave in detail the manner in which the timbering was done, and upon his crossexamination by Mr. Van Ness:

"Q. Do you know to what extent along the line of that stope cribbing had been put in above the timbering, say between line 4 and line 5? Do you know to what extent along the timbering had been cribbed up to the roof? A. I know some places it was not. Q. In how many places was it not cribbed? A. I do not know. Q. About how many? A. A good many. I do not think it was more than half cribbed. Q. You would say, as a matter of fact, that about half the timbering was cribbed, and about half of it was not cribbed? A. Well, something like that, and even then some of the cribbing was not wedged up tight at all."

Prater testified that there was from 10 to 12 feet of open space above the timbers; that the timbers did not support the roof; that he did not think it was a safe place, and his brother-in-law, Paul Edwards, who was the shift boss there, changed him, on account of the dangerous condition, to work in line 3.

Roberts testified that he was in the stope where the accident occurred between the hours of 9 and 10 o'clock on the night of the accident; that he noticed the ground was caving away all of the time and falling; that rock filling from the Peck level came down into the Copper level at the time of the cave.

Davis testified that Van Buren declined to go to work in the mine on account of inexperience as a miner; that the shift boss, Woods, told him he would have to go to work in the mine or quit his job; that on the night of the accident the shift boss, Paul Edwards, warned him (Davis) not to go through that stope, because it was not safe; that the timbering did not reach up to the roof; and that the timbers in that place were set on loose muck.

The witnesses on behalf of the plaintiff in error, especially the superintendent, the assistant superintendent, the foreman, assistant foreman, and head timberman, testified in detail as to how the work was

done; that the mine was thoroughly, completely, and effectively timbered, and the work done in such a manner as to make it safe for the workmen in the Copper level. These witnesses, or most of them, expressed the opinion that the cave which caused the death of Van Buren and others was not the result of defective timbering, but was in fact a "side thrust" resulting from some independent cause, and that the caves and droppings of rock, as testified to by the witnesses on the part of the defendants in error, were but incidents common to mining, and in no wise from want of proper timbering.

There was some testimony to the effect that lateral caves-"side thrusts"-might occur in properly timbered mines, and the plaintiff in error argues that the cave which occurred was of that character, and that it could not be held responsible therefor. Notwithstanding this testimony, several of the witnesses on behalf of the plaintiff in error testified that, if a mine was properly timbered, there would be no falling of rock through from the roof or sides.

John Minear, who had been a miner for 35 years, and at the time of the accident was timber foreman of the Mountain Copper Company's mine, upon his cross-examination said:

"I know what a mine properly timbered is. A properly timbered mine will hold up the ore. It is a pretty hard question to say whether, if a mine is timbered and don't hold up the ore, then it is not properly timbered. There might be something come, like an earthquake, that will shake it down. If a mine is properly timbered, there will be no falling either from the roof or from the side. If not only one car load, but a number of car loads, would come down from the top of the stope, my judgment as a miner would be that that mine was not properly timbered."

There was no earthquake on the night in question.

Archer, the superintendent of the plaintiff in error, testified upon cross-examination that:

"No such a thing happened as three car loads of ore coming down into the place where the muckers were working from the top. If it had, there would be danger. If that ore came from the top, or the roof, and came through the timbers, it would indicate that the mine was not properly timbered."

Charles Knuckey, who had been a miner for 42 years, and was day shift boss, and thoroughly familiar with the method of timbering the mine on the Copper level at that time, upon his cross-examination testified:

"Q. By Mr. Campbell: It is a fact, is it not, that a mine properly timbered will not scale, and will not cave? A. No, sir; it is bound to settle; it does not matter how you timber it. Q. But will the top of the roof drop down? A. It will come gradually on the timbering. It gradually settles on the timbering. Q. Will it drop down on the men? A. How can it drop down on the men if it was timbered? Q. Then, if it is properly timbered, it cannot drop down on the men? A. Of course not. It will not drop down on the men if it is properly timbered. Q. If a mine does cave, and drops down on the men, then, in your opinion as a miner, it is not properly timbered? A. I did not say that. Q. I say, if it does cave, and drops down on the men from above, then, in your opinion as a miner, it is not properly timbered? A. If it drops down on the men, it is not properly timbered."

We are not called upon to discuss the weight of the evidence. That was passed on by the verdict of the jury. It is enough to say that there was ample testimony on the part of the defendants in error to au

thorize the court to submit the question in issue, as to the negligence of the plaintiff in error, to the jury.

2. Did the court err in refusing to give the instructions requested by the plaintiff in error, or in giving certain instructions of its own motion? The rule is well settled that the court is never required to give instructions in the language used by counsel. The duty of the court is always fully discharged if its charge embraces all of the principles of law arising in the case in the court's own language. This court has in at least two cases expressly so decided. Swensen v. Bender, 114 Fed. 1, 9, 51 C. C. A. 627; Stockslager v. United States, 116 Fed. 590, 599, 54 C. C. A. 46. The courts in other circuits have announced the same rule. Union Pacific v. Jarvi, 53 Fed. 65, 71, 3 C. C. A. 433; Alabama Ry. Co. v. O'Brien, 69 Fed. 223, 16 C. C. A. 216; Western Co. v. Ingraham, 70 Fed. 219, 222, 17 C. C. A. 71; Texas Ry. Co. v. Elliott, 71 Fed. 378, 382, 18 C. C. A. 139; Missouri Ry. Co. v. Fuller, 72 Fed. 467, 469, 18 C. C. A. 641; Boston R. Co. v. McDuffey, 79 Fed. 935, 941, 25 C. C. A. 247. In so declaring, the Circuit Courts have but followed the decisions of the Supreme Court. Indianapolis R. Co. v. Horst, 93 U. S. 291, 295, 23 L. Ed. 898; Anthony v. Railroad Co., 132 U. S. 172, 10 Sup. Ct. 53, 33 L. Ed. 301; Railroad Co. v. McDade, 135 U. S. 555, 575, 10 Sup. Ct. 1044, 34 L. Ed. 235; Marchand v. Griffon, 140 U. S. 517, 528, 11 Sup. Ct. 834, 35 L. Ed. 527; Railroad Co. v. Winter's Adm'r, 143 U. S. 61, 74, 12 Sup. Ct. 356, 36 L. Ed. 71; Hartford Life Ins. Co. v. Unsell, 144 U. S. 439, 447, 12 Sup. Ct. 671, 36 L. Ed. 496.

The practice of taking the instructions as requested by the respective parties, and therefrom formulating a general charge embracing all the matters of law arising upon the pleadings and the evidence, is always to be commended, because in this way the points in issue may be sufficiently declared, and clearly presented to the jury, without unnecessary repetition and verbose language. The court's duty is to simplify its charge to the jury, and make every effort to render it as free from complexity as possible.

Conceding, for the purpose of this discussion, that the instructions asked by plaintiff in error were correct, still, if the principles embodied therein were correctly given by the court in its charge, no error occurred. The record shows that at the close of the charge, when counsel were called upon to announce whether they desired to reserve any exceptions, the following colloquy occurred:

UnThe

"Mr. Van Ness: I have not, as your honor is aware, in the way in which your honor has given your instructions, been able to determine how closely you may have followed, or to what extent you may have departed from, the instructions requested. While I think you have substantially given the instructions, still you have departed from the language, and I cannot at this moment determine that. In order to preserve the record, if there is any departure from those instructions, I desire to reserve formal exceptions. der the ruling of the court, it is necessary to reserve exceptions now. Court: You can have the record appear that it is done in the presence of the jury. * Mr. Van Ness: The usual practice is to take an order from the court giving us leave within ten days to specify in writing such exceptions as we may deem proper, and those written specifications to be deemed given, under the rule, in the presence of the jury, and while at the bar. The Court: You can have the record show that you each except. I will say to you, however, I think I have covered all your instructions. Mr.

Van Ness: I think your honor has. Mr. Campbell: That is our opinion, as well. The Court: Some of your instructions were rather leading, which I never give, and some were duplicates of others."

The trial court was too liberal in permitting counsel to have formal exceptions noted, without requiring them then and there to designate the points of their exceptions, before giving further time to formulate them. The court overlooked the object of the rule in this respect, and ignored the repeated and uniform decisions of the Supreme Court and the several Circuit Courts of Appeals upon this subject, to the effect that exceptions to the charge of the court are of no avail unless the record shows that they were taken or reserved while the jury were at the bar. As was said by the court in Harvey v. Tyler, 2 Wall. 328, 339, 17 L. Ed. 871:

"Justice itself, and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception."

The attention of the trial courts, as well. as of counsel, is here called to the necessity of enforcing this rule in the method herein indicated; otherwise the appellate courts are not bound to consider them.

After an examination of the instructions asked for by the plaintiff in error, and of the charge of the court upon the points presented by the requested instructions, our conclusion is that the points involved were fully covered by the charge of the court. In fact, the contention of the plaintiff in error is not that the charge of the court is erroneous, but that it "was so worded as to take the minds of the jurors from the proposition to which counsel for plaintiff in error desired to attract their attention." It is the duty of the trial court to enunciate the principles applicable to every material point in as clear and direct language as possible, without attracting the attention of the jury in favor of or against either party. There being two theories as to the cause of the cave in the mine, one of which, if believed to be true by the jury, would exempt the plaintiff in error from all liability, and the other hold it responsible for the injuries resulting from it, and there being evidence. to support both theories, it was the duty of the court to impartially submit both theories to the jury by appropriate instructions. We deem it unnecessary to incumber the record with a copy of all the requested instructions, or the instructions given by the court in lieu thereof.

It is claimed, among other things, that the instructions asked by the plaintiff in error expressed the law of this case as given in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361, and as laid down upon a former appeal herein (Mountain Copper Co. v. Van Buren, 123 Fed. 61, 59 C. C. A. 279), and should have been given; and it is suggested, in this connection, that the court, in its charge, departed from this rule. It is therefore proper to notice some portions of the charge upon this point, to show that the court did not depart from the rule as announced in the cases referred to.

The court charged the jury:

"That an accident occurred, through which Van Buren was killed, is not disputed, but you cannot infer that it resulted from the defendant's negligence simply because it occurred. The negligence must be proven. To main

tain this action the plaintiffs were compelled to allege that the accident resulted from defendant's negligence, and also they must prove it to your satisfaction by at least a preponderance of evidence."

Again: "During the trial of this case several matters have been referred to, from some of which it might be inferred that the accident happened. I refer to the testimony concerning different caves. You cannot, because the accident occurred, infer or conclude it might have happened from some other cause, unless the evidence points to that. In other words, you must be governed by the evidence. You cannot indulge your imagination, and presume it might have occurred from something other than that which is shown. You must know from the evidence substantially how it occurred, but especially you must know that it was from the defendant's negligence that it occurred. That is the main point."

With reference to another point involved in the instructions which are complained of, the court, in its charge, said:

"I will here call your attention to the evidence upon the vital question in the case that is, the one I consider the vital question-but I do not intend to indicate any views myself as to what the evidence points to. I leave that for you. The important question is this: You remember the plaintiffs' testimony was to the general effect that as they timbered along in that stope there were large spaces left over the timbering-after the upright posts were placed, and the caps placed on them, and some other timbers on top, there were large spaces left from there to the top of the stope, or the back of the stope, as it is termed; and experts have testified that, if that is so, it would not be good mining. You, of course, will understand that yourselves. You will know that the object of this timbering is to support the roof of the stope. If the timbering does not go up to that, but is simply built up in the air, you will readily conclude it would not be any support. That is, in part, the testimony of the plaintiffs-that the timbering was not placed up against the top of the stope, so as to support the superincumbent mass. On the contrary, the defendant's witnesses testify that the timbering was built up and was made solid against the top of the roof, or the back of the stope, as it is termed in mining. This is one of the important questions for you to determine. I have no suggestions to make to you as to which of the witnesses you must follow. You have their testimony before you, and it is for you to determine how that mining was done."

It is claimed that the court erred in instructing the jury as follows: "(22) The question in this case that I call your attention more directly to is this: As you have discovered from the testimony of witnesses, there are two kinds of timbering used in large mines. One is what is called the 'square sets,' in which the timbers are all fitted, one on top of each other. Then they are often filled up by throwing in the waste material of the mine, but in that kind of square sets waste material is not necessary, because the timbers are presumed to stand by themselves. In those cases the timbers are about six or seven feet long, under the system adopted. The other mode of timbering, such as was used in this mine, was where the timbers were longer, and were covered with caps; and the proper mode of timbering would be from those caps to carry the timbers up to the top or back of the stope, so as to support the weight. After the timbering had been set, those spaces between the timbers are filled up with rock. The witnesses say that the rock is built in tight, so that the pressure comes not only on the timbers, but also on the rock. The witnesses have testified as to that class of timbering. You, through your own good sense, can judge whether timbering of that kind would be safe. I may say to you that both classes of timbering, as the witnesses have testified, and it is not disputed, are approved of, when properly done. That is a question we will come to later on.

"(23) In all industrial pursuits there are risks and dangers of such character that they cannot be foreseen and provided against by the exercise of reasonable care, and which may be said to be incident to the pursuit. For these the master cannot be held responsible, but the servant assumes the risk