(after stating the facts.) This is an appeal by the Mammoth Vein Coal Company from a judgment rendered in favor of Charles Bubliss against it for $300 as damages for an injury to plaintiff caused by the fall of a rock in the mine of the 'defendant. The plaintiff was a miner, and at the time of his injury was at work driving an entry or passageway in the mine. This entry where plaintiff was at work was unfinished, and had not been turned over to the company, and was not being used as a passagewa)c The work was being done by himself and partner according to their own judgment, and they had the same control over the place at which they were at work as a miner has over a room in which he works. This is the view of the case adopted by the trial judge, and' the one we take, though the facts about this matter were not brought out very clearly. Plaintiff at one point of his cross-examination stated that it was the duty of the company to “timber” the entry and make it safe. That was no doubt true of entries and passageways after they are finished and used as such, but it was not true of this part of the entry where plaintiff received his injury, for that had not been finished, and was not being used as an entry, but as a place for work. Plaintiff himself was making the entry and mining the coal therein; and while he was doing that, it -#as no more than the room or place where he worked. The case was tried on this theory, and the conduct of the plaintiff shows that he took this view of the matter, for when he concluded that the roof needed propping he did not request the company to prop the roof but to send props to enable him to prop it.
The ’ statute made it the duty of the company; when requested, to furnish the plaintiff sufficient props and caps and other suitable timbers with which to prop and safeguard the roof of the entry where he was at work (Kirby’s Digest, § 5352), and it was the duty of the plaintiff to use the timbers and make the roof safe. The jury found, and the evidence tends to show, that the company failed to furnish the timbers as required by the statute, although requested to do so by plaintiff. It was therefore guilty of negligence, and must be held responsible for any injury caused thereby, unless the plaintiff was himself guilty of negligence contributing to his own injury. As before stated, the law requires mine owners to furnish sufficient props and timbers with which to safeguard the roofs above where they work.. If they fail to do that, and the miner is put to an election whether he will go ahead and risk the danger or quit work, and he concludes to go ahead and work, it becomes a question as to whether in so doing he acted with due care or recklessly exposed himself to an obvious and imminent danger. If, while in the exercise of due care, he is injured by reason of the fact that the company after request wilfully failed to furnish sufficient or suitable timbers with which to prop the roof, his injury is then due to a violation of the statute on the part of the company, and they should respond in damages. Kansas & Texas Coal Company v. Chandler, 71 Ark. 518. On the other hand, if the danger is obvious and imminent, it is nothing but recklessness for him to expose himself to it, and the law will not permit him to recover damages for an injury directly due to his own lack of ordinary prudence. Coal Company v. Estievenard, 53 Ohio St. 43.
Now, we -have set out the main portion of the testimony of the plaintiff bearing on the question of the nature of the danger to which he exposed himself, and his knowledge thereof, and we think it shows that he was guilty of want of ordinary care. It .is true that he says that he would not have worked there if he had known that it was dangerous, but he admits that when he tested the rock with the pick, which he says was the best way to test it, the pick test showed that the rock was more or less loose, and that no one could tell how soon or when it would fall. We said in a recent case that “if one remains at work under a rock which he knows is liable to fall at any moment, his injury from the fall of the rock is a consequence of his own carelessness, and prevents a recovery on his part.” Kansas & Texas Coal Company v. Chandler, 71 Ark. 578. No prudent man should expose himself to such a risk rather than wait until he can secure props with which to secure the roof from falling. To work under a rock after discovering that it was liable to -fall at any moment was knowingly to occupy a position of great and palpable danger when there was no occasion to take such a risk, and the injury of plaintiff was the direct result of his reckless exposure to danger, and we are of the opinion that the court should have directed a verdict for defendant. Kansas & Texas Coal Company v. Chandler, 71 Ark. 518; Coal Company v. Estievenard, 53 Ohio St. 43; Victor Coal Company v. Muir, 20 Colo. 320; Sugar Creek Mining Company v. Peterson, 177 Ill. 324; Christner v. Coal Company, 146 Pa. St. 67; White’s Mining Remedies, § 463; 20 Am. & Eng. Enc. Law (2 Ed.), 140.
The same conclusion was reached in the case of Patterson v. Poe, 81 Ark. 343, though the decision there was 'based on the ground that the plaintiff assumed the risk. 'In cases like this case and that of Patters'on v. Poe, where the plaintiff exposes himself to a danger that is obvious and imminent, it is not of much practical importance whether the case is disposed of on the ground of assumed risk or contributory negligence. For, as was pointed out by Judge Taft in Narramore v. Cleveland, 96 Fed. 298-304, “assumption of risk and contributory negligence approximate when the danger is so obvious and imminent that no ordinarily prudent man would assume the risk therefor.” The opinion by Judge Taft in that case contains a full discussion of the principles underlying the doctrines of assumption of risk and contributory negligence and their application in cases where the servant undertakes to hold the master responsible for a failure to perform a statutory duty. Assumption of risk and contributory negligence were also discussed by this court in the recent case of Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367. There is of course a clear distinction between these two doctrines, 'though the courts have not always kept them in mind; but it is not necessarjr to discuss the question here, for in this case the application of either rule defeats the plaintiff. The decisions of the courts not only of this but of other States are practically unanimous in holding that contributory negligence is a good defense to an action by a servant to recover damages for injuries against his employer based on the failure of the master to perform a statutory duty. Kansas & Texas Coal Company v. Chandler, 71 Ark. 518; St. Louis S. W. Ry. Company v. Dingman, 62 Ark. 245; Narramore v. Cleveland, 96 Fed. 298; Coal Company v. Estievenard, 53 Ohio St. 43; Hamman v. Central Coal & Coke Company, 156 Mo. 232. In the case last cited the judgment against the company was sustained, although the miner continued at work after the company had failed to furnish him props. But, to quote the language of the court, “the roof where the accident happened was examined by one of the miners with his pick, which was the usual and proper way to examine the roof and test its strength, within an hour prior to the accident and found to be safe to work under.” Under these circumstances, the court said that the question of whether the plaintiff in going ahead with his work acted with due care was a question for the jury. This Missouri case is one of the strongest cases in favor of the contention of plaintiff that we have found, but in that case the pick test showed that the roof was safe, while in this case that test showed that the roof was more or less loose, and that it was liable to fall at any time. As we have said, the plaintiff, in remaining at work under the roof after making this discovery, was guilty of negligence that directly brought about his injury. As this contributory negligence was shown by his own testimony, there was no need to send the case to the jury.
Judgment reversed and cause remanded for a new trial.