the room where Mr. Locke worked-John Locke-and that was the dangerousest place there was, between his rib and the next one; and he says: 'Bill,' he says, 'that won't fall yet; you have no idea how this coal will hang;' and he says 'I can't stop the turn to take it down now, but'—says he— I will take it down some other time.' Them was just the words that was used, as near as I can get at it. Question. What more did he say, if anything, than that he wanted to keep the turn running? A. Why, he didn't say nothing, only as I told you; he said that he couldn't stop the turn then to take it down, -that he would take it down some other time have it taken down; he didn't take it himself, of course. Q. He said he would take the coal down? A. Yes, sir; he would have it taken down; he didn't work his own self." That on the twenty-fifth day of May the plaintiff was called from another part of the mine by the superintendent, and was directed to go into the fifth entry at a place beyond the timbering, but not at the particular place where plaintiff had called the attention of the superintendent to the loose coal, and there load up some coal which cumbered the track. The plaintiff commenced the work, and within a few moments a large mass of coal fell from the sides upon the plaintiff, causing the injury complained of. The direction of the superintendent to do this particular work was testified to by the plaintiff as follows: "Answer. Mr. Thomas ordered me and Mr. Harry Thomas over there, to go in and clear up the coal and lower the track. Question. Well, what did you do after having received those orders? A. I went in the entry and stayed there until the turn--we was a little ahead of the trip; that is, the turn coming in. The man that drove the cars stayed there until they came in, and Mr. Thomas came in also, right behind the cars, and I asked him if I should start in here, and he says 'Yes, clear right up, boys'- Q. (Interrupting.) Which Thomas do you mean? A. Thomas Thomas. He says: 'Hurry and clear up, for I want to send coal out here this evening.""

The plaintiff's testimony further tended to show that the plaintiff knew from reputation and hearsay what effect a "squeeze" had on a mine, but had never had experience

with one before; that Mr. Thomas, the foreman, had had experience in seven or eight "squeezed" mines, before; that timbering or casing, and removing coal as fast as it was loose from the walls, would have lessened the danger, and been a protection, and that such is the usual precaution in mines undergoing a "squeeze," but that neither was done, except the timbering above mentioned. The plaintiff was 36 years of age, had always been well and healthy before the accident, and the testimony tended to show that the injury received by the plaintiff was to the nerves of the back, and to the spinal column, and was permanent; and that it was and is very painful, totally disabling him from any labor; and that he requires the constant care and attendance of nurses; that he cannot dress or undress without assistance, and that his lower limbs are so far paralyzed that he has but little use of them.

At the close of the testimony for the plaintiff the defendant moved the court for a nonsuit, on the ground that the plaintiff had not made a case entitling him to recover, and because the plaintiff's testimony showed that he was guilty of contributory negligence, which was overruled by the court. The defendant's testimony tended to show that the plaintiff, by the exercise of due diligence, could have avoided the accident by discovering that the coal which fell on him was loose; that he knew the dangerous condition of the mine, and of the fifth entry, where he was hurt, and tended to contradict the plaintiff's testimony. At the close of the testimony the defendant presented a number of requests to charge. The trial judge did not follow the requests to charge, but formulated his charge to the jury, varying and modifying some of the requests. The jury returned a verdict for the plaintiff for $20,000, and judgment was entered thereon. The defendant thereupon moved for a new trial on statement, on the ground, among other things, that the damages were excessive. The court overruled the motion for a new trial, upon condition that the plaintiff should remit $5,000 from the verdict and judg ment, which the plaintiff did, and the motion for a new trial was denied; and the defendant appeals to this court from the judgment and order overruling motion for a new trial.

The first question arising upon this record is the ruling of the court in overruling the appellant's motion for nonsuit. The first ground stated for a nonsuit raises the ques tion as to whether under this state of the case the defendant is liable to the plaintiff for the acts of Thomas, the superintendent; and, if so, whether negligence or neglect of duty was shown which was the proximate and efficient cause of the injury. In the reported cases of the various states there has been much discussion and diversity of opinion as to the responsibility of masters for the acts and omissions of co-employes, and as to how far and under what circumstances agents and employees engaged in various departments of duty and service are fellow-workmen or co-employees with other servants, so as to exempt the master from liability for their acts; but we think that the great weight of authority in the state courts establishes the proposition that the superintendant of a mine who has general and entire charge of the work, employs and discharges workmen, and directs their duties and employments, is not a co-employee with common laborers in the mine, whose duty it is to obey the order of such superintendent, within the rule exempting the master from responsibility for the acts and omissions of such superintendent, and that as to such common workmen the master is responsible for neglect of duty by such superintendent. Ryan v. Bagaley, 50 Mich., 179; Birckner v. Railroad Co., 49 N. Y., 672; Malone v. Hathaway, 64 N. Y., 5; Railroad Co. v. Stevens, 20 Ohio, 415; Railroad Co. v. Keary, 3 Ohio St., 201; Railroad Co. v. Collins, 2 Duv., 114; Ford v. Railroad Co., 110 Mass., 241; 1 Redf. R. R., 554; Whart. Neg., sec. 232; Bowers v. Railroad Co., 4 Utah, 215. This rule is recognized and adopted by the federal courts; Railway Co. v. Ross, 112 U. S., 377; Hough v. Railway Co., 100 U. S., 213; Railroad Co. v. Herbert, 116 U. S., 642; Railroad Co. v. Fort, 17 Wall., 553.

Did, then, the evidence tend to show negligence on the part of the superintendent, or was the accident the natural result of the dangerous and hazardous business in which the plaintiff had voluntarily engaged to serve the defendant? One who engages in the employment of an

other for the performance of certain duties for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of the service, and the pay is presumed to be regulated to cover compensation for such risk. This is a part of the contract on the part of the employee, and this rule applies as well where the service in which he engages is naturally hazardous or extra-hazardous. This is so well established by adjudications that references are needless. On the other

hand, it is the duty of the master not to expose the servant in performing his duties to hazards or perils which may be guarded against by proper diligence. It is his duty to observe all the care which prudence and the exigencies of the situation require, and to furnish reasonably safe and proper structures and instrumentalities to avoid danger. He is not required to furnish the safest known appliances and means of avoiding danger, but such as are usual and reasonable under the particular circumstances and exigencies, and this is a part of the contract of hire on the part of the master: Hough v. Railway Co., 100 U. S., 213; Railway Co. v. Fort, 17 Wall., 553; Railway Co. v. McDaniels, 107 U. S., 454. The servant's exposure to hazards resulting from the violation of this duty on the part of the master is not within his contract of service, and the master is liable for injuries resulting therefrom: Hough v. Railway Co., supra. We are of the opinion that the testimony clearly tended to show that the accident to plaintiff was the result of a violation of this duty on the part of the defendant, and should have been submitted to the jury. The superintendent knew of the dangerous character of the mine resulting from the process then going on in it. His attention had been expressly called to the danger in the fifth entry; he had recognized the danger and the necessity and propriety of timbering or casing, and of sounding along the walls, and removing the loose coal and debris, by promising that it should be done; and it is reasonable to suppose, from the testimony, that the accident would have been avoided if either had been done; but, representing the company, simply to facilitate its operations, and suit its convenience,

this precaution was neglected and the plaintiff subjected to the risk which resulted in his injury.

The ground most relied on by appellant for a non-suit is "that the plaintiff was guilty of contributory negligence." At the close of the plaintiff's testimony the court should not grant a non-suit, on the ground of contributory negligence, unless it affirmatively appears by his testimony. Contributory negligence is an affirmative defense, and the burden of showing it was upon the defendant: Hough v. Railway Co., supra; Railroad Co. v. Gladmon, 15 Wall., 401; Whart. Neg., sec. 423; Bowers v. Railroad Co., 4 Utah 215; Railroad Co. v. Horst, 93 U. S., 291. A non

suit should not be granted, and the case taken from the jury, unless the court will feel constrained to grant a new trial upon the same evidence. Bowers v. Railroad Co., supra; Railroad Co. v. Stout, 17 Wall., 657; Randall v. Railroad Co., 109 U. S., 478.

It is insisted by appellant that the plaintiff's testimony shows that he knew of the dangerous character of the mine, and of the precautions taken by defendant to avoid accident, and that by continuing in its employ after such knowledge he was guilty of contributory negligence. If a servant, before he enters service, or afterwards, discovers that the instrumentalities furnished for his protection are defective, and understands, or by the exercise of ordinary observation' ought to understand, the risks to which he is thereby exposed, and if notwithstanding such knowledge, he, without objection, and without any promise on the part of the employer that such defects will be remedied, continues in such service, he cannot recover for injuries resulting therefrom, but will be deemed to have waived all negligence and neglect of duty on the part of the master, and would be guilty of contributing to such negligence: Hough v. Railway Co., supra: Greene v. Railway Co., 17 N. W. Rep., 378. But where there is any evidence tending to rebut the presumption of waiver on the part of the servant, it presents a case for the jury: Hough v. Railway Co., supra; Greene v. Railway Co., supra; Lansing v. Railroad Co., 49 N. Y., 521. We think that the promise of the superintendent in this case,