*42Extended Opinion on Rehearing, by
Judge O’Rear,May, 1909.
In the transcript of the evidence in this case it appears that a contract between appellee and the local organization of the United! Mine Workers of America at the place where appellee’s mine is located was admitted to the jury in evidence.- But the transcript does not contain this contract. In that way, the import of that agreement escaped attracting the notice that its importance as bearing on the case might justify. It is said that the contract was to this effect: The miners in appellee’s service, all of whom were members of the local organization or lodge, were to employ a man to “shoot the mines;” that no one was to be allowed to “shoot out of turn;” that, in short, the control of that part of the operations in the mine relative to the time and manner of shooting down the coal was to be exclusively within the hands of the miners themselves. Conceded that the contract was of such import, we think it materially affects the law of the case-. Obviously there is not a liability on the mine owner as to negligence in failing to control the time and manner of shooting in the mines when, by an agreement between the mine owner on the one side and all the miners on the other, the former had not the duty or right to control the matter at all, but it was controlled by the men themselves. The duty of the mine owner, independent of statutory regulation, and that primary- duty to furnish a reasonably safe place in which to work, and tools with which to work, may vary according to the contract between him and his laborers. If the latter do not choose to rely upon the former’s judgment and skill in certain features of *43the work, but prefer to rely upon the prudence of their own members, who are presumably skilled in such work, and whose presence they also in a manner control by requiring that they should be admitted from their union, we perceive no reason why they may not. When the master divides his men into grades, putting one over another, or one not connected with another in the same service, he takes away from the men something of that personal supervision of one over another in a common employment which constitutes them fellow servants. On the other hand, if the employer and laborers all agree that the latter are to be of the same or a common grade, and shall have control themselves of certain features in the work, designed for their better protection, we are unable to see wherein the arrangement is illegal, so long as the public policy and the statutes are not violated. If then Edwards was in truth a member of that organization: if the contract between appellee and the miners left it to the latter to do their own shooting, or to employ another to do it for them, then all miners who were parties to the agreement, or who entered under it, were fellow servants, each looking to the common interest shared by them all rather than to the master for protection against carelessness on the part of his fellows, though they were in different rooms or passages and not directly associated in their work. This, however, could not affect the master’s duty to provide the ventilation and other safeguards prescribed by the statute set out in the original opinion in this case. In the event there was such a contract as suggested, the negligence of the shot firer, or of the men themselves in firing the shots, is that of a fellow servant, for which the law does not allow a recovery against the master. It was appellee’s theory that such was the cause of the *44fatal explosion. As there was evidence to support its contention, it ought to have been submitted to the jury under appropriate instruction, as was done under No. 2, as given by the trial court, except that the court should have left it to the jury to find whether the men were working under that contract and rules promulgated in accord with it. Instruction 2, as directed in the original opinion, should also be given; but, in view of this contract, it should be predicated upon the jury’s finding that the miners were not working under the union contract or agreement.
Appellant ?s theory of the cause of the explosion was that foul air or gas was allowed to accumulate in the rooms and passages of the mine for want of proper ventilation, which ignited when the shots were fired off. Appellee’s contention is that’the shots were fired in such rapid succession that the system of ventilation could not, and indeed no system could, have carried off the gases generated and released and dust and heat created by the shots; that these accumulating in the passages, being forced almost simultaneously from the various rooms by the shots fired therein, overtaxed the ventilating system, and caused what is termed a “powder explosion.” There was evidence to support each theory, and each should have been submitted to the jury. The statute regulating ventilation of mines does not contemplate a system of ventilation .that will keep the mines free from negligent explosions of powder by the men working in an unskillful manner, but that, under the normal conditions in the mine, the draft must be such as will afford the minimum of pure air stated in the statute. If the miners violate the rules of proper mining so that the means provided under the statute for sufficient ventilation in proper mining are ineffectual, it certainly *45was, not the purpose of the Legislature to make the mine owner criminally and civilly liable for that fact. The day after the explosion the State mine inspector visited and inspected the mine, using an anemometer to test the velocity of the current of air circulating in the mine. The original opinion comments upon the effect of the explosion and other changing conditions, upon the state of the air on the following morning, whether it would likely be foul, or charged with 'lingering gases. It seems to us that what was. there said was apposite. But counsel for appellee fear the expression used might be construed to exclude evidence of the test by the mine inspector made the day after the explosion. To the extent that the inspector might testify as to the purity of the air when he tested it we think such testimony for the reasons advanced in the former opinion would be irrelevant. However, if the defendant showed that substantially the same conditions' prevailed, affecting the ventilation of the mine, when the inspector tested it, as did when or just before the explosion occurred, it would be competent for the inspector to' say what the reading of his instrument was.’ as indicating the velocity or volume of the current of air passing through the mine, and whether that volume and draft were sufficient to provide the mine with the quantity of pure air required by the statute when the mine was being operated prudently and was- in a normal condition. If the current of air was such on the morning after the explosion as to afford the requisite volume of pure air called for by the statute, and if the conditions affecting the ventilation were not materially changed since the explosion, then it is evidence that the explosion was not caused by a violation of the statute in failing to provide sufficient ventilation.
May 18, 1909.Subject to this extension of the opinion in this case, appellee’s petition for rehearing is overruled.