Plaintiff brought suit against defendant company to recover damages for personal injuries received by him on account of the negligence of the officers and agents of defendant. From a judgment entered for defendant upon an instructed verdict, plaintiff, upon writ of error, brings the case to this court for review.
Plaintiff was employed on March 2, 1906, and for some months prior thereto worked, as a pump man in the coal mine of defendant at St; Charles, Michigan. At 9:30 p. m. of that day plaintiff was required by his duties to go down into the mine. In company with his helper named McDonald plaintiff entered the cage at the top of the shaft, and both men gave the proper signals to the man operating the levers in the engine room to be lowered down into the mine. This operator, instead of manipulating the machinery so as to lower the cage into the mine, did exactly the opposite, and pulled his levers so as to cause the *270cage suddenly and violently to be elevated, jerking it some 30 feet up the shaft and over the automatic tipple, a device for dumping coal, and throwing these men violently out of the cage into the coal hoppers, causing plaintiff serious and permanent injuries. The man operating the levers which controlled the cage and hoisting device in this coal, mine on this occasion was named Saunders and was employed as fireman. The defendant placed its regular engineer at this work during the daytime, and this fireman during the nighttime.
The negligence relied upon and charged against defendant was that the fireman, Saunders, was a common laborer incompetent and lacking skill to take charge of the cages and hoisting devices used in this mine, and was a, man addicted to the excessive use of intoxicating liquors, and was known to defendant’s officers and agents to be reckless, unreliable, drunken, and incompetent to perform said work. The declaration also charged that defendant was negligent in disregarding a statutory duty imposed upon it by section 3 of Act No. 100 of the Public Acts of 1905, entitled:
“An act to provide for the protection of the health, lives and interests of the coal miners of Michigan, and to provide for the inspection of all coal mines in this State.”
Section 3 provides:
“ That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines of this State.”
The plea of the defendant was the general issue. Such errors assigned as are material to the determination of the case will be considered.
In directing the verdict for defendant, the court, in his charge, among other things, said:
“Now, then, in this case counsel endeavored to distinguish this case from the common-law rule which I have stated to you by referring to certain authority in this State and out tif it. * * * And they cite to sus-
*271tain that position the law of this State which was passed in 1905, known as Act No. 100, in which one section says:
“‘Seo. 3. That only a competent and trustworthy engineer shall he permitted to operate the cages and hoisting devices in all coal mines of this State.’
“And they plant their right to recover upon that provision of the statute. Now the cases where the court has said in this State that the plaintiff might recover and that there was no assumption of risk where the statute provided that the duty that the employer should perform toward the employe for his protection was the case where the statute contained a penalty for the violation of it. * * * There is no penalty in this statute for the failure to perform.”
The court then quoted the last section of the act making it a misdemeanor to refuse to comply with a certain notice, and proceeded:
c ‘ So the employer is not guilty of a misdemeanor until the State mine inspector has notified him and that he haa failed to comply with the notice to do, within a reasonable time.”
■ The case cited and quoted from in his charge and upon which- the court relied, Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 83), was decided before any statute was enacted imposing a duty upon the employer as to operating cages and hoisting devices in coal mines, so no question was in that case as to the neglect of duty and the case is not in point.
The construction of the court was that the statute invoked by plaintiff contained no penalty and therefore the neglect of the duty imposed did not bring the case within the cases relied upon by plaintiff. In Swick v. Cement Co., 147 Mich., at page 457 et seq., where a similar contention is discussed under a similar statute, the conclusion of the Justices concurring in the opinion is that the statute imposed the duty without reference to the action of the factory inspector, and in case of neglect of that duty the doctrine of assumed risk could not be asserted as a defense. In this conclusion we concur. This statute does *272not make the performance of the duty depend upon the action of the mine inspector. It is imposed by the third section of the act without condition, and without reference to the steps necessary to be taken in order to penalize parties for their neglect. This section of this statute imposed the duty upon defendant to employ an engineer, competent and trustworthy, and to permit only such an one to operate the cages and hoisting devices in its mine. The legislative intent in providing for the protection of the lives of miners is clearly expressed in this section. The intention is not to allow the employment of any man, and put him at this work to learn his trade as an engineer, but that the man put at this work must be then a competent and trustworthy engineer. Plaintiff had a right to rely upon the performance of this duty by his employer.
It is not a question of the care used by the defendant in its selection, if the person selected was not “a competent and trustworthy engineer,” for the reason that, under the statute, such is the only selection provided for. This is not an insurance that accidents will not occur, but an insurance that the employé selected is within the class designated by the statute. It follows that if the statute has not been complied with, the defense of assumption of risk, or negligence of a fellow-servant, cannot be asserted. The court was in error in directing a verdict for defendant. The case should have been submitted to the jury with instructions conforming with the views'above expressed.
The court was also in error in excluding evidence of the habits of Saunders as to the excessive use of intoxicants, if within the knowledge of defendant’s officers or agents, or of so notorious a character that they should have known of such habits. It was material as bearing upon his competency and trustworthiness. The testimony of the machinist and blacksmith should have been admitted for the same reason. It was not error to exclude the testimony of plaintiff’s witness to show statements of defendant’s mine boss, Jenkins, made on the night after *273the accident, relative to the competency and trustworthiness of Saunders. In view of the foregoing statements in this opinion, the other errors assigned need not be discussed.
The judgment is reversed and a new trial ordered.
Blair, Ostrander, Moore, and Carpenter, JJ., concurred with McAlvay, J.