(dissenting.) I dissent because — First. The plea of contributory neglect is not broad enough to put in issue any neglect on the part of Jarvi, except, such as may result from a violation of the rules of the company. It charges that the defendant was, at the time of receiving the injury, “fifty yards from the place where, by his employment,he was required to be, and in a place more dangerous than that required by his employment.” By the word “employment,” as here used, is meant “business” or “service.” The very nature of this business required him, in the absence of any prohibitory rule, to be in the main slope as well as in the dip slope of the mines. That is to say, he was not a fixture or a post, to remain immovably at a designated point/ unless he contracted to do so, or unless a rule of the company, which he fairly understood, circumscribed his locomotion within a given radius. Having been hired as a miner, his business — his employment — was to dig coal, load cars, and to do such other work as the custom in such places demands of employes in this service. Any limitation upon this must be by a rule or special direction. This record affirmatively shows that the defendant below rested his case on that rule, — a rule which it was contended forbade the plaintiff from going into the main slope for his empty cars; and at the same time, by its original answer and by the emphatic testimony of its own officers, repeated over and over, affirmed that the place was not simply not dangerous, but that it was a positively safe place. Having, both by their answer and by their own testimony, limited the neglect charged to the plaintiff to a violation of a rule, the instruction should have been no broader.
Second. I dissent because there is an utter dearth of testimony to show that the plaintiff *383■either knew, or had a reasonably fair opportunity to know, before or at the time of the injury, that the place in the main slope which some witnesses spoke of as an “unsafe place” was more than ordinarily dangerous. He is an untutored foreigner, who delivered his testimony through an interpreter. He had not been engaged in that part of the mine longer than two weeks. Other miners, who had been there months, and perhaps years, were of the opinion, from the fact that they liad seen some rocks fall from the roof, that it was dangerous; but no one testified that such fact, or even opinions based on such fact, had been communicated to Jarvi.
Third. Even if the plea of contributory neglect be as broad as the majority of the court hold, and even if the roof of the main slope was extraordinarily dangerous, and Jarvi absolutely knew it, I dissent, because the testimony shows, beyond all doubt and without contradiction, that the injury did not occur within the main slope, nor was it caused by a stone or other substance falling from the roof of the main slope, — the place which is spoken of as the dangerous place. It occurred in the dip slope, near its point of junction with the main slope. At this point, a lump of fire-clay fell from its position between the wall of coal and the sandstone formation, striking plaintiff, and crushing his leg. I quote the record. Louis R. Myers ■was the superintendent of the mine. He was introduced by the defendant company. On page 91 appears this question and answer: “ Question. What kind of stone was that that fell on Jarvi? Answer. Eire-clay. Q. That did not come from the roof ? A. No.” If it was fire-clay, it could not have come from the roof of the main slope; because, as is admitted by every witness, and as the prevailing opinion possibly shows, the fire-clay had all been blasted down to the sandstone in the roof of the main slope. Further, on page 95, appear additional questions and answers by this witness: “Question. You think that stone came from the south-east side? Answer. I know where it came from; it came from the left-hand side, going down in the dip slope. Q. From the left-hand side of the dip slope or the main slope? A. The left side of the dip slope. Q. You mean from the south side of the dip slope? A. Yes. Q. .Which side of the main slope? A. It did not come from the main slope at all; it was on the dip slope. ” Rogers; the mining boss, testified on behalf of the defendant company. On page 103 these questions and answers appear: “ Question. Did you see where the stone came from which hurt Jarvi? Answer. Yes, sir; it came from the point of this pillar. Q. Did it come from the roof? A. It came from the top of the coal. The road was going down that way to the dip slope, and it fell from the top of the coal. It did not come from the roof.” There was no testimony in contradiction of this, but some witnesses, who did not witness the infliction of the injury, and supposing that it occurred by the falling of stone from the roof, spoke of the supposed place as one believed by them to be a dangerous place. In view of the fact that the injury did not occur by any falling of stone from the roof of the main slope, of what relevancy is that portion of the prevailing opinion which assigns as a ground for reversal the fact “that the main slope is known by all miners to be dangerous, and that a manway is provided for that reason, in order that miners may not be compelled to go upon the main slope; that it was not necessary for the defendant in error to go there?” Suppose it was not necessary for him to go there, what avails such a declaration, if he was not injured there?
Fourth. 1 dissent further from the opinion of the court in the interpretation given of section 2553, Rev. St. By the fifth subdivision of that section each party is, at the close of the evidence, given the privilege of moving for special instructions before the court formally instructs the jury. In this case counsel for the plaintiff in error asked many instructions, intended, presumably, to cover their theory of the case. Not one of these so offered had any application to the doctrine of contributory neglect, except as it might have been inferred from the alleged violation of the rule prohibiting the miners from going into the main slope. The nearest approach to it, if it can be called an approach at all, is found in the refused instruction quoted in the opinion of Justice Corn. That instruction is so palpably erroneous that it needs only to be read to discern the error. It states to the jury some general propositions, a part of which is not the law of this case. By it the court is asked to say to the *385jury that the same degree of care is required of Jarvi that is required of the company. This is wholly misleading. It is true that Jarvi should, in his particular sphere, have exercised a reasonable care for his own safety, and the company should have in its particular department exercised a reasonable care to provide for the safety of the miners. But the two spheres or departments are entirely distinct, and the institution of a comparison between the diligence or care which should characterize the one with that which should characterize the other would be misleading and confusing to the jury. It is as faulty as an attempted parallelism between two individuals of different orders and genera, — as between a fowl and a quadruped. By the residue of the instruction, the court is asked to tell the jury that if plaintiff failed to exercise ordinary care, and that such failure contributed to the injury, they should find for the defendant. Ordinary care in respect to what? Under the generous scope of this instruction, the jury might have con-eluded that Jarvi failed to exercise ordinary eare in respect to any of his duties as a miner, no matter how little in law such neglect affected his right of recovery, and found against him. The instruction was too vague and general, even if it had embraced a correct principle, to be of any proper service to a jury. This instruction the court was bound to refuse. The question then remains, could it have been modified? If we are to stick to the letter of the statute, as Judge Coen’s opinion would seem to indicate, the court’s whole duty would have been at an end, if the court could neither grant it nor modify it. If by “modification” is meant refusing it outright, and writing another, which bore no resemblance to it either in phraseology or in law, then it might have been susceptible of modification; but such is not my understanding of the word. Briefly stated, my view is that when a party rests his ease upon a particular line of prosecution or defense, and only requests that instructions be given in harmony with that line, and fails to invite the attention of the court to any other view or theory of the case which the testimony might possibly establish, the failure of the court to give, of its own motion, an instruction predicated on this unmentioned view, is a case of non-direction, which is not reversible error. I hold that the case of plaintiff in error falls within this principle. I do not see how the trial judge, after the defendant had planted itself upon the proposition that the place was not extraordinarily dangerous, — nay, not even ordinarily so, — could have conceived that this generalization of the law on care and diligence was intended to refer to the supposed neglect of Jarvi in going into a dangerous place, unless the judge had just simply guessed it. As this record fairly shows, it was beyond the range of reasonable conjecture.