The defendant in error brought suit against the plaintiff in error, alleging that on January 15, 1886, the defendant in the court below was the owner and operator of a certain coal mine; that plaintiff below was in the employ of defendant as a miner of coal therein; that in his occupation as miner it was necessary for plaintiff to frequently enter and pass through a part of what was known as the “Main Slope” of said mine; that, while so engaged in passing through a portion of the main slope,- a large rock fell from the roof upon plaintiff’s leg, and so injured it that it became necessary that it be amputated; that at the time, and prior thereto, the said rock was loose, insufficiently supported, and dangerously insecure in its place in the roof; that it was the duty of the defendant to keep said main slope in good repair, and not to allow said rock to become insecure, and to furnish plaintiff with a safe place in which to perform his work as such employe; that the defendant, well knowing its condition, negligently and carelessly failed to perform its duty; and that plaintiff had no knowledge of its dangerous condition, and *377no reason to anticipate it, and that he was free from negligence in respect to the cause of his injuries.
The defendant answered by a general denial, and also set up in a second defense that plaintiff, at the time of the accident, was negligently at a place in the mine at a distance from the place where, by his employment, he was required to be, and a more dangerous place, without the order of defendant, and without its knowledge or consent; that, although knowing that at that time and place there were great and unusual hazards of the kind which caused his injuries, the plaintiff was not exercising reasonable or ordinary care to protect himself; and that such failure of plaintiff to exercise ordinary care contributed to the inj uries.
The evidence tended to show that plaintiff was in the habit of going from his working place to the junction of the main slope and the slope or entry leading to his working place, for the purpose of obtaining cars to remove his coal; that this was a specially dangerous point, owing to the frequent falling of masses of rock, and was known to be so by said miners; that the main slope itself was dangerous, and was-so known to be by the miners; that these places were also known by the superintendent and mining boss to be dangerous, but there was also evidence tending to show that the junction where the accident occurred, by blasting out the “bastard rock, ” had recently been made as safe as it could be reasonably made. There were “drivers” whose duty it was to remove the cars of coal, and return empty cars to the miners, placing them near to their working places, and at a point between the working and the junction, so that it would not be necessary for the miners to go to the dangerous place. There is evidence tending to show that there were enough drivers to furnish all the miners with all the cars they required, in this way, and that each miner, by waiting to have the cars brought to him, would obtain all the cars he required. There was also evidence that certain of the drivers brought the cars to the junction, and required the miners to come there for them. While at this point, for the purpose of obtaining cars, this fall of rock occurred, and plaintiff was injured. There was evidence that ■ a rule existed prohibiting the miners from going to this point, and also that the rule had fallen into disuse, or, at least, that it was not enforced or insisted upon, and was perhaps unknown to the plaintiff. There was a verdict for plaintiff of $12,500, and defendant brings the case to this court.
There is a great number of errors assigned, only a part of which it will be necessary for us to consider in detail.
The plaintiff in error insists that the court erred in its charge to the jury, and also in refusing certain instructions requested by it. The charge of the court, in so far as it has reference to the negligence of the defendant or any contributory negligence of the plain7 tiff, was in full as follows: “The court charges you that when the plaintiff, Jarvi, entered the service of the defendant company, he took upon himself the risks of those dangers to his life or limb which the testimony may show are ordinarily incident to mining service. He likewise took upon himself the risks of such accidents or injuries as might befall him as a result of the negligence of a fellow-servant, of whom the mining boss, Rogers, in this case, was one. While the plaintiff is held in law to have assumed these risks, the defendant owed to him duties of protection and care. It was the duty of the defendant to provide for the plaintiff a working place which, under the circumstances and considering the situation, common prudence would pronounce reasonably safe, and to construct and maintain within its mines, at the proper places, such practicable appliances or artificial means as ordinary prudence and forethought would suggest as necessary for the safety of its miners. This being done, it is correspondingly the duty of the plaintiff, as one of the miners, to conform to any reasonable rules and requirements on the part of the company which were made with a view to the fuller safety of the employes. Instruction No. 1. That if you believe from the evidence in this case that the plaintiff received the injuries complained of by him; that they were caused either by the falling of a rock from the roof of the.mine, or from its displacement from a portion between the coal and sandstone formations; that the superintendent of the mines either had notice that there were reasonable grounds to apprehend such falling or displacement, or,' by exercising ordinarily *379careful inspection, could have ascertained that there was a reasonable probability of such falling or displacement; and that it was practicable to prevent it by artificial means or appliances, — then the finding must be for the plaintiff. This instruction, however, is not to be taken as the whole law of the case. Its converse will be found in instruction No. 2, and its modification in instruction No. 3. Instruction No. 2. If the causes which operated to produce the falling or displacement of the stone were so hidden in their nature or character as that the defendant by its agent (in this case, the superintendent) could not, by the exercise of reasonable care and skill of inspection, have discovered them, you should find for the defendant; unless you further believe from the testimony that the superintendent had notice that such causes existed and would likely operate. Instruction No. 3. Although you may believe from the evidence that the defendant was negligent in the respects indicated in instruction No. 1, yet if you further believe from the evidence that the defendant had, prior to the injury of plaintiff, prescribed a rule the effect of which in part was a prohibition to plaintiff to go for his empty cars into that particular part of the mine where the accident occurred, and that notice of this rule was either given specifically to plaintiff in a way in which he fairly understood it, or was promulgated by the defendant in such a general public and plain way that the plaintiff had a fair opportunity to know it, that the plaintiff, having such notice of the rule or opportunity to know it, violated it, and that the accident would not have occurred if he had not violated it, then, in such case, the finding should be for the defendant upon the ground of plaintiff’s contributory neglect; that is, that plaintiff contributed to his injury by his own neglect of proper caution. Rut upon this particular head you are further instructed, in modification of the preceding part of this instruction, that if you believe from the testimony that the defendant’s superintendent, by a general license to the miners, encouraged them, or, knowing their habits, suffered them, without remonstrance, to habitually come into the straight slope for their empty cars, such license would operate to abolish or suspend the rule, and the'plaintiff could not, under such circumstances, be held to have been guilty of contributory negligence.”
This was the entire charge of the court affecting the question of negligence. Plaintiff in error requested the following instruction, which was refused by the court: “The plaintiff, as an employe in the mine, was required at all times while so employed to exercise due care and diligence for his own protection; in other words, the same measure and degree of care is required of the plaintiff as is required of the defendant company. There is, however, this one difference, that, even if you should find from the evidence that the defendant company failed to exercise ordinary care, and that such failure caused or contributed to the injury complained of, still, if you should find from the evidence that the plaintiff also failed to exercise ordinary care, and that such failure in any manner contributed to his injury, then you must find for the defendant company.”
An examination of. the charge of the court, as given to the jury, will show that they were instructed, as to contributory negligence, only as predicated upon a violation by the defendant in error of an alleged rule of the defendant company, requiring employes to remain off the main slope. If there was evidence before the jury tending to show that defendant in error was guilty of negligence in going into a place unnecessarily, which was more than ordinarily dangerous, and that he knew, or might by ordinary care have known, that it was more than ordiná-rily dangerous, and that such negligence directly contributed to the injury, it was proper that the jury should have been instructed upon that view of the case, even if the alleged negligence did not consist in violation of a rule of the company, and even if the company had no rule upon the subject. There was evidence that the place was dangerous, and known to be so; that it was a “bad place;” that it was so notorious, by reason of the frequent fall of rock there, that the mine-boss must have known it; that special pains had been taken to blast it out so as to make the roof safe, but that it remained dangerous, by reason of the frequent falling of rock from the sides, and that this was necessarily known to those who passed frequently about it; that the main slope is known by all miners to be dangerous, and that a “man-*381way” is provided ior this reason, in order that miners may not be compelled to go upon the main slope; that it was not necessaryfor defendant in error to' go there, for, if he remained at his working place, he would receive the same number of cars as if he went for them himself. The evidence upon these points was conflicting, and should have been submitted to the jury, under proper instructions.
But it is urged that the instruction requested does not state the law accurately, and, further, that, at most, it is but a non-direction, upon which error cannot be predicated. In support of this proposition, we are cited to Thompson on Trials, § 2341. “It is, then, a general rule of procedure, subject in this country to a few statutory innovations, that mere non-direction, partial or total, is not ground of new trial, unless specific instructions, good in point of iaw, and appropriate to the evidence, were requested and refused. A party cannot, by merely excepting to a charge, make it the foundation for an assignment of error that it is indefinite or incomplete. The rule rests upon the soundest foundations.” In the first place, this is not a mere non-direction. In the latter part of instruction No. 3 of the charge of the court the jury are informed, in substance, that, in the absence of an enforced rule of the company prohibiting plaintiff from going to that place for his cars, the plaintiff could not be held to have been guilty of contributory negligence. The language apparently limits the defense of contributory negligence to the violation of an alleged rule. But the rule as stated by Thompson, even if applicable to this case, is not the rule in this jurisdiction. Subdivision 6, § 2553, Rev. St. Wyo., provides that in civil cases, “before the argument of the case is begun, the court shall give such instructions upon the law to the jury as may be necessary;” and his duty to do this is not excused by the failure of counsel to request “specific instructions, good in point of law, and appropriate to the evidence;” for subdivision 7 of the same section provides: “ When either party asks special instructions to be given to the jury, the court shall either give such instructions as required, or positively refuse to do so; or give the instructions with modifications.” We think the question of contributory negligence, regardless of the existence of any rule of the defendant company, clearly arises upon the pleadings and the evidence in this ease, and it should have been submitted to the jury, under proper instructions from the court, and the failure to do so was error, on account of which a new trial should have been granted. The judgment of the court below is reversed, and a new trial ordered.
YaN DevANTee, O. J., concurring.