be allowed in fixing a definition for those | closes that the court gave 48 instructions,

terms. It was doubtless considered that a fact unrecognized to-day may become one of general notoriety and interest, as the result of scientific investigation or experiments. There is not any reason which will justify the admission of mortality tables, almanacs, market reports, and the like, which will not apply equally in favor of these tables. Assuming that the proper foundation was laid -and there was not any objection upon that score we think the court erred in excluding the evidence.

[8] 6. Witnesses were interrogated at length as to the proper meaning to be given to certain rules promulgated by the railway company for the control of its employés in operating under the block signal system; and in instruction No. 3 the court submitted to the jury, for it to determine, the meaning which should be given to these rules. If the language of a rule is vague and its meaning uncertain, evidence is admissible to show the practical interpretation put upon it by those called upon to construe the rule, or by those under whose supervision the rule was promulgated. But where, as in this instance, the language of the rules is plain and the meaning apparent, it is the duty of the court to declare that meaning, and not leave it to the speculation of the jury. Rev. Codes, § 7875; Doherty v. Northern Pacific Ry. Co., 115 Pac. 401, decided May 1, 1911, not yet officially reported.

promise that different methods would be adopted, there was an assumption of risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 625-637; Dec. Dig. § 220.*]

2. MASTER AND SERVANT (§ 220*) ASSUMPTION OF RISK-KNOWLEDGE BY SERVANT. Where an experienced miner agreed to take the coal from a mine, defendant to do the timbering, and, by the method of timbering adopted, the timbers were brought up within about four feet of the coal, and because of the nature of the roof between the timbers and the coal the danger from falling rock was serious, [9] 7. Complaint is made of the action of and plaintiff knew this and commented on it, the trial court in refusing to strike out of and knew the means and feasibility of another plaintiff's cost bill certain items relating to between the other timbers and the coal, and method of timbering by "forepoling" the space the mileage of witnesses, and an expression urged defendant to do this, but continued refound in the opinion in McGlauflin v. Worm-peatedly after such request to work, without ser, 28 Mont. 177, 72 Pac. 428, is relied upon as justifying the contention now urged. In the McGlauflin Case Commissioner Clayberg, speaking for the court, said: "Section 4648 of the Political Code of 1895 provides that witnesses attending a trial are entitled to ten cents per mile each way from their place of residence to the place of trial." The question whether mileage should be allowed from the place of residence was not involved in that case, and the use of the word "residence" was a mere inadvertence. The statute cited does not impose any such limitation. That section, which is now section 3182, Revised Codes, when read with section 7169, Revised Codes, clearly means that the prevailing party may recover his necessary disbursements, including mileage of witnesses. Whether the mileage shall be computed from the place of residence, will depend upon the circumstances of each case. There was not any error committed in this instance.

8. Complaint is made of the refusal of the trial court to give certain instructions requested by the defendants. The record dis

3. MASTER AND SERVANT (§ 203*) — ASSUMP-
TION OF RISK-NATURE OF DEFENSE.
founded in contract, and may be interposed
The defense of assumption of risk is not
against a servant, not because he agreed, but
because it is a part of the law which, if abro-
gated, must be by the Legislature.

Servant, Cent. Dig. §§ 538-543; Dec. Dig. §
[Ed. Note.-For other cases, see Master and
203.*]

4. MASTER AND SERVANT (§ 280*)-EVIDENCE -SUFFICIENCY.

Evidence held to show that the master did not hold out assurance that a different method of timbering a mine would be adopted, relieving the servant of assumption of risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*]

Appeal from District Court, Carbon County; Sydney Fox, Judge.

Action by R. Fotheringill against the Washoe Copper Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Walsh & Nolan, for appellant. C. F. Kel- | Good about it; had different conversations ley, L. O. Evans, and D. Gay Stivers, for respondents.

with him, while we were working in this specified entry. When he came, I says, "Tom, don't you think it would be better if they SMITH, J. Plaintiff commenced this action would use forepoles on these timbers to in the district court of Carbon county to re- protect us in the face?' I can illustrate what cover damages alleged to have been sustain- forepoles are. They generally would put ed by reason of the failure of the defendant lagging on the slabs that would run from company to sufficiently timber an entry in a the center of one set of timbers to the cencoal mine in which he was working as its ter of the other; then I suggested that he go employé. A rock fell upon him from the to work and put forepoles on-that is, exroof of the entry and injured him. It ap- tending the end of the timbers. I have been pears from his testimony that he and three familiar with that system of timbering in other miners had been mining coal by the different places. It is made use of in bad day and doing such timbering as they were ground in any place where it is liable to ordered to do. The defendant Good had come down during the time the men are at full charge of the mine. Plaintiff was a man work; supposed to be put there for their about 32 years of age who had mined coal protection. When I asked Mr. Good suggestfor 20 years. Some time in February, 1909, ing the method of protecting ourselves, he he and his three companions agreed with said he would see to the timbers, or it wasn't Good to take out the coal by contract. He necessary; that is all we ever got out of him then said to Good: "How would it be to never got any forepoles in at all. The give us figures on the timbering?" Good re- morning of March 22d I went to work; went plied: "Never you mind about the timber- in as usual and felt the place to see how it ing; we will take care of the timbers. You sounded, and sounded the roof; pulled down dig the coal out, and we will attend to the what coal was necessary off the face. I felt rest." Plaintiff testified: "The only agree- everything, sounded everything. I took my ment we came to in relation to the timbering pick and started to work on the face. I put was that they were to do it. I agreed to my hand up against the roof, sounded the do the work at the schedule price. I went roof; it sounded good, like all pot holes do. to work under that arrangement, until the It was as smooth as a table here; couldn't eleventh day when I got hurt. The company tell whether there was anything there that men timbered up behind us. We had nothing would come down or not. After I started to do with the timbering, and didn't get tools to work, the pot holes came down and caught for that. That ground was a limestone for- me at the time I was engaged in digging coal mation and quite a number of pot holes in in the breast. It fell from the face half-way it. Pot holes sometimes are perfectly round over to the set of timbers. It was four feet and the small end up; the big part will be eight or ten inches from the last set of timdown even with the surface of the coal. In bers to the breast. I believe it was five feet the progress of our work as we were run- from one set of timbers on the other side, I ning an entry along there, rock had been would not be right positive. I have mined falling all the way from those pot holes from a long time. I know how to take coal out the time we started the coal away from the of an entry. I understood digging coal. I slope. Sometimes it would come down pretty cannot answer as to whether I know as much close behind us. We could never tell any-about taking this coal out as Mr. Good, bething about when it was coming down; al- cause I don't know his ability. I suppose ways had to keep sounding it and feeling it, as we had to be very cautious with it. It was continuously falling all along the slope from the time the coal started in the slope even to the time I met with the accident. The stuff that comes from the pot holes, some of it is rock, and some of it is sulphur balls, and other a little coal intermixed with the different substances. When the timbers were put in, these pot holes dropped on top of them, when they weren't lagged up. They would settle on these timbers, but the fall would be stopped where the timbers were installed. We never get a set of timbers up within four feet of the face, I dare say that is to say, the last set of timbers would be a distance of four feet from the breast, or more; there was nothing at all to support the roof between this last set of timbers and the breast. There was more or less danger, in working in the breast, of one of these pot holes dropping down on us. I spoke to Mr.

I am as well acquainted as anybody else with the same mining experience digging coal out of an entry. I have had 20 years' experience in looking out for the roof, protecting myself in entries with timbers. I always did protect myself. I consider myself qualified by my experience to do so. This last set of timbers did not meet with my approval. I knew it right along. I stated the fact to Mr. Good. It wasn't blocked as it should have been on top, or forepoles put in, as I stated. In those two respects it was imperfect. I knew it right along on Saturday, and Monday morning (the 22d) when I went to work. I talked with Good about the timbering at different times. We had sounded the roof there, that is how we came to tell Mr. Good it was bad. The entry was timbered from the face to within four feet eight inches of where I was hurt. The Saturday before I got hurt there was a rock fell through and struck back behind and hit one

Batten testified: "Pot hole ground is very treacherous ground. I knew it was there because we had plenty of them coming down on us as we were doing the work. I heard Fotheringill asking Mr. Good about thatthe roof was pretty bad, and he ought to forepole it. Mr. Good said he thought the ground didn't need forepoling. I knew the roof was dangerous. Fotheringill and I had examined the roof just before the accident, and I told him to look out for the roof, over the side of the entry, where he was working, as it looked unsafe to me, but he thought it was all right."

When the plaintiff rested his case the defendants moved for a nonsuit on several grounds, two of which were as follows: "(10) For the reason that it affirmatively appears that plaintiff was an experienced miner, and well knew all of the risks and dangers incident to his employment, and voluntarily assumed all of the same, and he cannot now hold these defendants, or either of them, responsible or accountable for the injuries whereof he complains. (11) For the reason that it affirmatively appears that the plaintiff well knew of the dangers incident to his employment as they existed in said entry and to the roof thereof, in the condition in which the same were at the time he went to work upon the day he was injured, and that he continued to work therein after such full knowledge, and voluntarily assumed whatever risks were incident thereto." The court sustained the motion and entered judgment for the defendants, from which judgment the plaintiff has appealed.

of the timbermen. We were supposed to and subordinated his judgment to that of sound our roof, which we done, ahead of his superior." The court sustained an obthis last set of timbers, to find out whether jeçtion to the offer. the ground was safe to work in. We sounded the roof whenever we thought it was necessary. Lots of times we didn't think it needed sounding, but we sounded it merely to protect ourselves. In regard to protecting ourselves, we were supposed to take out the coal and sound the roof; that was our duty and the company was supposed to do the timbering. There was no other agreement made at all. There is no miner living that can tell the condition of pot holes. If we found a place there that sounded drummy and bad we had to wait until the company came and put in a set of timbers. On the Monday morning while I was working there was no room for a set of timbers on one side; these sets are all put up square. I knew from the time we started that this place where we were working ahead of the last set was more than ordinarily dangerous, from the time the coal was taken from the slope on in, it was more or less dangerous. I certainly understand coal mining is a dangerous occupation, and I realized my place was more than ordinarily dangerous. I appreciated the existence of that danger. I knew this place I was working in, ahead of these timbers, should be protected more than it had been. I put in the last blast there before the accident; my partner and I. I understood my working place was the space of the entry, ahead of the timbers. On the morning of the 22d of March when I was hurt I was telling Dave Batten, my partner, that they should put that forepoles on and fix the place. I told him that it would be better if he went to work and put these forepoles on; it would accomplish more protecting, in that nature of a place. I had realized all the way through that there should have been pole lagging extending over it. I told the timbermen different times that they should operate the system for that kind of ground I have aiready mentioned. I never thought that the way they put in the timbers was right when I started. The feature about this work that made it more than ordinarily dangerous was the nature of the ground; the limestone nature of that ground over there, more or less pot holes in it. If I hadn't worked there, after I found that the ground was more dangerous than ordinary, after having these talks with Good, I would have had to get out; it was one or the other, get out or work there. We were digging the coal out preparing a place for the timbers. Where this rock fell there was no room ahead for a full set of timbers." The record shows that the plaintiff here offered to prove that having asked the superintendent Good "whether pole lagging (?), that it was not necessary, he continued at work, feeling that the judgment of Good as to the safety of the place and the sufficiency of the timbering was rather to be relied upon than his own,

It is contended in the brief of the respondents that the record contains no evidence of negligence on their part. On the other hand, the appellant's counsel say: "We assume the master to be negligent." We shall not assume the master to have been negligent as a matter of law, but we may assume that the question of its negligence was one of fact for the jury, which might have been answered in the affirmative. The result is the same. Assuming that the jury might have found the company guilty of negligence in failing to forepole, was the district court justified in holding, as a matter of law, that the plaintiff assumed the risk of being injured on account of the lack of forepoling?

[1] The learned counsel for the appellant says in his brief: "It is acknowledged at the outset that if the doctrine of assumption of risk is to be applied in all its harshness, unrestrictedly, as it has sometimes and by some courts been announced, there may be no right of recovery here." And again: "As the rule is commonly stated, it is to the effect that the servant assumes all the usual and ordinary risks attendant upon his employment, not including risks arising from the negligence of the master, and that be

assumes the latter as well, if he knows of wherein it is held that the defense is foundthe defects from which they arise and appreciates the dangers which flow from such defects." This is, indeed, the rule of law relating to assumed risks which the learned counsel assisted the district court and this court in framing and promulgating in the case of Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973.

tions surrounding them.

ed in contract, the situation is altogether different. In such jurisdictions it may be, and doubtless is, proper in many cases to submit to the jury the question, Which party intended to assume the risk? But such a rule cannot be laid down by the courts in this jurisdiction. It is beyond their powers. We have, however, as we think is evidenced [2] Here, as there, there is not any point by the holding in the Osterholm Case, supra, made that the defendant company, upon been very careful to safeguard the rights being notified of the defect and danger, of employés in cases where there can be any promised that it should be remedied. On reasonable question whether they appreciatthe contrary, Good refused to forepole, say-ed the risks arising from the physical condiing that he did not consider it necessary. If there were anything in the record to indicate that plaintiff had any doubt on that point, many of the cases cited by the appellant might, perhaps, be in point. But there is not anything. His testimony shows that he considered forepoling necessary for some time prior to the accident. It is difficult to see how a stronger case of knowledge of defect and appreciation of dan ger could be made out. Fotheringill was repeatedly given to understand by Good that the company proposed to continue mining without the use of forepoles; and, with knowledge that his work was extraordinarily dangerous on account of a condition which he constantly had in mind, he continued his employment. Pot holes and pot rocks were constantly falling about him. The case cannot be distinguished from the Coulter Case in principle, unless it be that it is a clearer case of appreciation of danger than was disclosed in that action.

As was said in Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499, the defense of assumption of risk is based upon an old and well-established principle of the common law, and has its foundation in the maxim, "Volenti non fit injuria: he who consents to an act is not injured by it." But it is argued that the maxim, being interpreted, raises the inquiry whether the servant impliedly agreed to take the risk. Not so. The consent referred to is consent to the act, not to the results flowing from the act. Having consented to the act, the law declares that he is not wronged by it, or, in other words, that he will be deemed to have assumed whatever risk may have been connected with a situation the dangerous character of which he understood and appreciated.

[3] The defense of assumption of risk is not founded in contract. It may be interposed against a servant, not because he agreed that it might be, but because the law says it may. Osterholm v. Boston & Mont. C. C. & S. Min. Co., supra. It is not within the power of this court to abolish or amend the defense. It is a part of the law of the land and must be abrogated, if at all, by the lawmaking power. In jurisdictions

As to the instant cause, we are of opinion that it falls squarely within the conditions of a supposed case set forth on pages 14 and 15 of appellant's brief, which counsel admit would not warrant the court in submitting the question to a jury. Nor can we agree that the cause should have been submitted on the theory that appellant had a right to rely upon any assurances given him by Good. His testimony shows beyond question that he had formed his own judgment as to the safety of the place. He said he knew nothing of Good's ability.

[4] There is not anything to warrant the conclusion that Good held out any assurance that the entry ahead of the last set of timbers would be forepoled. There is but one conclusion which any reasonable man can draw from the testimony, and that is that Fotheringill believed that forepoles were required and Good did not; but in view of his other testimony plaintiff would simply have stultified himself had he testified that he relied on any assurances of Good. In remaining at work he acted advisedly, in the exercise of his own experienced judgment. His testimony so discloses. There was no uncertainty as to the menace of the situation. The danger was continuous, obvious, and notorious, and he fully appreciated it. He relied upon his ability and experience for protection as he had done in the past. The judgment is affirmed. Affirmed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes