(dissenting)—I dissent. On the first proposition, in relation to the admissibility of testimony, while the rule of a particular mine—if by rule is meant a regulation or law governing the operation of such mine only—would doubtless be inadmissible for the purpose of tending to prove or establish the rules in another mine, the whole testimony shows clearly that it was elicited and admitted for the purpose of proving a general custom of the mines in that locality, and of what was generally *469conceded to be the duty of miners, muckers and inspectors, or shift bosses-. This is plainly shown by the form of the question itself, for the question was not, what was the rule of any particular mine—-there being several in that locality—but “generally among the Coeur d’Alene mines,” showing conclusively that it was a general custom among miners that was sought to be proven. And, even if the question could possibly be considered so narrow, the answers to the question, which are not set forth in the majority opinion—-and it is the answer to- a question which constitutes prejudice, and not the question—make no attempt whatever to show a. rule of any mine, but simply to prove what was expected of certain workers. The following excerpts from the testimony of the witness illustrate this idea:
“Q. What is a miner? A. Well, a miner is a man that is supposed to take care of himself under ground. . . . Q. What is a mucker? A. A mucker is one who shovels and sorts the ore. Q. Now, what is the difference between a miner and a mucker, if any? A. A miner is supposed to- take care of the- ground and bar it down and make it safe for the mucker, and the mucker is supposed to come in and clear the dirt up after it is broken down,” etc.,
all without reference to- any particular mine. Certainly, if it was a custom in mines generally for muckers to rely on some one else to test all walls under which they worked, the respondent had a right to show that general custom on which he relied, to defend himself against the charge of contributing to his injury by not exercising the caution which an ordinarily prudent man would exercise under the circumstances.
Nor can I agree with the second proposition, that the court erred in giving the instruction set forth in the ma- - *470jority opinion. In my opinion it was nothing hut the announcement of the universally accepted rule, that the servant has a right to rely upon the presumption that the -master will furnish him a reasonably safe place in which to work; and if he has a right to rely upon it, then there ■is no duty of inspection on his part. The court instructed the jury, that the servant, in entering into a hazardous employment, assumed the usual risks of the servant, and those which are apparent to ordinary observation; that, when he accepts or continues in the service with knowledge of the character of obstructions from which injury might be apprehended, he also assumes, the hazard incident to the situation; and further, that, as to those which are not obvious, assumed by the employee; if the master had exercised reasonable care to guard against the defective condition of structures and appliances, he would still not be liable, and they would be classified as dangers that were apparent to observation. Now, the portion of the instruction which is objected to does not state that the burden is not imposed upon the servant under any circumstances to use diligence, for that portion of the instruction is with reference to. defects in the structures or appliances, and to defects only. In fact, there is no question involved in this case about assuming any other kind of risks than a hidden defect, or a defect in the place which was furnished the respondent in which to work.
The excerpts from the opinion in Anderson v. Inland Tel. etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410, must be interpreted in the light of the subject under discussion, and it. is as true now as it was then that it is a duty incumbent upon reasonable men to exercise, in a reasonable manner, the faculties of which they are possessed. But, in that case, it was found that it was the *471duty of the lineman, who was injured while climbing a telephone pole by coming in contact with a charged wire, to inspect the poles and wires, and that in the performance of his duty he was equipped with apparatus for that purpose; and it would, therefore, have been nothing but a reasonable exercise of prudence to have examined the wire before tonching it. But, in this ease, the duty of inspection rested with the mine owners.
The next case cited, Olson v. McMurray Cedar Lum. Co., 9 Wash. 500, 37 Pac. 679, was a case where the injury was caused by the plaintiff getting his fingers mixed up with some live rollers, with which he was working in a sawmill. There a man was working around dangerous machinery, where the danger was palpably obvious, and where he must have known that, if he did not work with circumspection, he would be hurt. Hence, we said, and said properly, that, under such circumstances, men’s faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent.
The case of Steeples v. Panel etc. Box Co., 33 Wash. 359, 74 Pac. 475, was where the plaintiff fell off of a platform, on which it was his duty to work, and where there was no railing on one side—where he had worked about the premises for two months, and had been on this platform on prior occasions. It was simply held there that that was an obvious peril, which he ought to have taken notice of; and there could not very well have been any other holding in the case. The statement quoted—that the plaintiff would be bound nnder the circumstances, if it was his duty as a reasonably prudent man to have made snch an examination as would have resulted in the desired information—can have no bearing on *472this case; for it is well established here that, so far as the plaintiff’s work was concerned, it had nothing to do with the wall above him, and it is also equally well established that the duty of inspection was not imposed upon him.
Jennings v. Tacoma R. etc. Co., 7 Wash. 275, 34 Pac. 937, was a case where an employee of the motor company undertook to push a car out of the building, where the door through which he had to pass was only three and one-half inches on each side Avider than the car; and, instead of taking hold of the end of the car to push it out, he took hold of the side of the car, and when he came to the door he undertook to push himself through with the car, and was, of course, caught and hurt between the car and the door. It would be difficult to establish any parallel between that case and the one at bar; and so with all the other cases from this court relied upon by the appellant. These were all cases written by the writer of this dissenting opinion, and can readily be distinguished from the case at bar. They were all cases where the employees were hurt by reason of their negligence with regard to the thing Avhich hurt them, when they Avere working with the thing which hurt them, and, consequently, must have had their attention called to the danger, the danger being obvious, and hence the duty of care devolved upon them.
But the distinction between the principles involved in those cases and the one at bar seems to me to be so plainly marked that it should not be overlooked. In this case there is no question of working with dangerous tools or around dangerous. machinery, or of failing to exercise ordinary judgment in the transaction of the work, or of refusing to exercise the ordinary faculties of the mind; for the respondent was not hurt with anything with which he was working, nor did the manner of his work affect, in *473the least degree, the- misfortune which overtook him. Hence, the inapplicability of the cases cited. This distinction is very clearly announced in Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273, where, in the course of the opinion, the court said:
“. . . the plaintiff was employed, at the time of the accident, in running a tunnel in defendant’s mine. He was doing this work under the immediate supervision and direction of John Sheehan, the foreman and manager of the mine: Sheehan was not working in the mine with plaintiff. The plaintiff was not engaged in creating a place, on his own judgment and at his own risk. He assumed the- risks naturally attendant upon driving the tunnel. It was the duty of defendant to- keep .that part of the-' tunnel or place already created safe, by whatever reasonable means were necessary. If the plaintiff had been injured while in the actual work of drilling or blasting in the face of the tunnel he was driving, he may have had no claim on the defendant for damages; for these were risks he assumed as a miner. But he did not assume the risk of defendant’s failure to- keep that part of the tunnel or place already created reasonably safe and secure-. . . . He assumed the risks incident to- the work in front of him, and not the risks of defendant’s failure to properly care for that part of the tunnel or place .behind him, which he had completed, and turned over to the care- and control of the defendant.”
It would be difficult to distinguish this case from the- one at bar upon principle-, and, as will be seen, they are almost identical on questions of fact. This case- was cited with approval by Judge Morrow, in the case of Bunker Hill etc. Min. Co. v. Jones, 130 Fed. 813, another case of injury in a mine. In that case it was said:
“If the jury believed the testimony on the part of the plaintiff, the safety of his employment depended upon the proper timbering of the slope above and immediately adjoining the place where he was set at work. He, was not *474employed as a timberman, but as a miner and machine-man, or driller. It was no more a part of his duty to inspect the timbering above him, or the condition of the rock in the chamber above, according to the custom in that mine, than it would have been to inspect the track on the tunnel floor, or the cars in which the ore was carried ouh Other men were detailed for that part of the work. Tha shift boss, whose orders he was obliged to obey, indicated the place in which he was to work; . He entered upon the performance of his duties, and was warranted in the assumption that the necessary precautions had been taken by the defendant to prevent the caving and falling of rock from the stope above.”
And so it may be said here. This man was not employed even as a miner, wlm outranks him, but as a humble mucker, whose duty it was to keep his head down to his work and pay attention to that, and that only. There is no question involved here of obvious danger or dangerous machinery, or want of exercise of ordinary care on the part of the respondent, or anything of that kind. It must, in the nature of things, outside of the custom which was shown in this case, be the custom and the duty of mine owners to inspect these mines, so far as the caving of walls over the miners is concerned. There can be no shirking of that responsibility. According to the majority opinion, there was a joint duty or responsibility of testing here. Such a theory as that would prevent a recovery by unfortunate victims in mines under any and all circumstances. For, if they did inspect and were mistaken in their judgment about the danger, they could not recover, for the reason that the duty of inspection devolved upon them. If they did not inspect, they could not recover, because their duty was to inspect. Considering the. character of the employment, and the character of the people who are employed in mines, it is the last place where *475courts ought to begin to relax tbe rule of a safe place to be furnished to employees. This doctrine of safe place to employees, under conditions such as are shown in this case, is the doctrine that is sustained by every state in the Union, and by the courts of every civilized country, and both precedent and right demand that it should be continued in force.
The judgment should be affirmed.