(dissenting) — I dissent. I think the narrow construction placed upon the statute by the majority fixes a limit upon its application which was not contemplated by the legislature; and that the fear expressed that the provisions of the statute might be made to apply to gold, silver, or copper mining, is more fanciful than real. If it develops in the trial of a cause that the exploration was made in a gold, silver, or copper mine, of course the statute would not apply, and the court would so instruct. But in this case there was not a suggestion that the tunnel was not being run in the interest of the coal mine. The plaintiff in the case is the Carbon Hill Coal Company. The opinion starts out with the statement that, “in January, 1910, the appellant was engaged in running a rock tunnel at the Carbon Hill coal mine” (and it was at that date that this accident occurred). The testimony shows and the opinion states that the tunnel was being driven by miners, with the hope or expectation of cutting a ledge or deposit at depth, and there is no claim or suggestion in the testimony that the excavation was in the interest of anything else than a coal mine, or that the tunnel was being driven for any other purpose than collecting or locating a ledge of coal. The following excerpt from the testimony of the foreman of the mine is suggestive:
“Q. What is the difference between running a rock tunnel and running ahead into your coal and mining out the coal? A. Our gangways are driven on the same principle when we *36mine in coal, and shoot the rock out in the bottom, if the coal is on a pitch, and shoot the coal out first, and have a hole up here for the rock, and shoot it out. Q. That is not the only-rock tunnel you have up there in the Carbon Hill coal mine, is it? A. We have driven thousands of feet of it. Q. A rock tunnel is one of the incidents of every coal mine, either to find the vein or -whether it is run through to cross-cut different veins ? A. They drive them for that purpose.”
When it conclusively and confessedly appears that the rock tunnel was being operated in a coal mine for the purpose of discovering ledges of coal, I can see no reason why the statute which guards the safety of miners in a coal mine should not apply. The construction placed upon the statute by the majority opinion ignores the spirit and reason of the law, and it is the letter that killeth.