Opinion of the Court by.
Judge O’Rear
Affirming.
Appellee, a coal miner was injured! by falling slate while working in appellant’s miile in West Virginia. It is conceded that appellant’s liability is to be tested [535]*535by the laws of that state then in' force. It is charged' in the petition in this case that appellant had negligently employed and retained in its service, for some days before and at the time of appellee’s injury, an incompetent mine boss, who negligently failed to inspect the' roof of the mine from which the slate fell that injured appellee, and who failed to furnish appellee sufficient or suitable props to support the roof, as a result-of which the injury occurred. It is conceded that in West Virginia the mine boss and the miners are fellow servants. Still the law there is, as it is elsewhere, that one servant does not assume the risk arising from the negligence of a fellow servant if the master was negligent in the selection and employment of a laborer who was incompetent to do the work which he was put to do. As to the qualifications of a mine boss a statute of West Virginia thus provides (section 410, W. Va. Code Supp. 1907): “Sec. 15. In order to better secure the proper ventilation of every coal mine and promote the health and safety of the persons employed therein, the operator or agent shall employ a competent or practical inside overseer, to be called mine foreman, who shall be a citizen of this state and an experienced coal miner, or any person having five years’ experience in a coal mine, who shall keep a careful watch over the ventilating apparatus and the airways, traveling-ways, pumps, and drainage, and shall see that as the miners advance their excavations, proper breakthroughs are made, to properly ventilate the mine, and that all loose coal, slate and rock overhead in the working places and along the haulways be removed or 'secured so as to prevent danger to persons employed- in such mines; and that sufficient props, caps [536]*536and, timbers as nearly as possible of suitable dimensions, are furnished for the places where they are to he used, and such props, caps and timbers shall be delivered and placed at such points as the rules for the government of each respective mine provides for them to be delivered; and every workman in want of props, caps pieces and timber shall notify the mine foreman, or such other person who may be designated-for that purpose, at least one day in advance giving the length and number of props or timbers and cap pieces he requires; but in case of an emergency the timbers may be ordered immediately upon the discovery of any danger; and it shall be the duty of each miner to properly prop and secure his place in order to make the same secure for him to work therein. The said mine foreman shall have all water drained and hauled out of the working places where the same is practicable, before the miners enter and said working places kept dry as far as practicable while the miners are at work; it shall be the duty of the mine foreman to see that the cross-cuts are made as required by law and that ventilation shall be conducted through said cross-cuts into the rooms by means of check doors placed on the entries or other suitable places, and he shall not permit any room to be opened in advance of the ventilation current. Should the mine inspector discover any room, entry, airway or other working places being driven in advance of the air current contrary to the requirements of this act he shall order the workmen working such places to cease work at once until the law is complied with. And the mine foreman shall measure the air current at least twice each month at the inlet and outlet and at or near the faces of the advanced head[537]*537ings and shall keep a record of such measurements in a book having a form prescribed by the chief of the department of mines. An anemometer shall be provided for this purpose by the operator of the mine.”
The regular mine foreman, who is sometimes called the mine boss, became- sick some days before appellee’s injury. He.turned over the superintendency of the mine to the track repairer, the next in rank. Appellant’s general superintendent came along in a day or so, and learned that the mine had been placed under this track layer. He went to see the regular mine foreman about it, who told him that this man was careless and otherwise incompetent, and advised him to employ another man who was recommended as having more experience. But the superintendent says that he knew there was not a good feeling between the old foreman and the track layer, and exercised his own judgment in the matter, after looking into his work. The new foreman had been employed at this mine but a short time, probably a month or so, and was but a mere youth, about 20 years old. The evidence leaves no doubt that he was not sufficiently experienced to be a competent mine foreman. He did'not inspect the miners’ rooms to see as to their condition; he did not sound the roofs and walls, and did not see to other matters which were necessary in insuring the safety of the men; he did not promptly furnish, or require to.be furnished, to the miners the props called for by them, and which were necessary in shoring up the roof where they were working; he did not know the name or use of some of the instruments required by the law for testing the air in the mines. There was evidence that this young man had been working in and about coal mines for 8 or 10 [538]*538years — since he was a child. Probably be bad mined coal for as long as 5 years. Tbe West Virginia stat.ute quoted we think contemplated tbe employment of .competent, practical mine foremen. It was not so material whether they bad spent many years in mines if they were competent to be foremen. But we are not told that tbe state required an examination by a board of miner’s, or by tbe chief of tbe State Department of Mines, as to their efficiency. Competency .was tbe point aimed at, however. Tbe statute as- . sumes that one who has- bad 5 years ’ experience in a coal mine is presumably competent to be a mine foreman. But we cannot think tbe Legislature of West Virginia, evincing such care as was done in tbe elaborate system of mine inspection and regulation in .the statute before us, from which tbe foregoing quotation is made, intended to allow mine operators to knowingly employ incompetent foremen merely because tbe latter may have bad' 5 years’ experience in coal mines. On -the contrary, we think it was intended that only competent, practical mine foremen should be employed: If tbe foremen were known to be competent, they might be employed under this statute without reference to. their experience; but, if they were not known.' to be competent, the employer might assume, from their having bad 5 years’ experience in coal mines, that they were competent until tbe contrary was brought to bis knowledge. But if they were known to be incompetent, their employment was negligence, no matter what experience they may have bad, In tbe petition in this case it was not charged in terms that tbe young man, employed by appellant as foreman at tbe time of appellee’s injury, bad not bad 5 years’ experience in coal mines, al[539]*539though it was charged that he was incompetent, and was known by appellant to be so. It is claimed that the omission to charge that the foreman had not had 5 years’ experience made the petition deficient. But, construing the statute as we have above, we hold that the allegation was sufficient.
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Opinion of the Court by.
Judge O’Rear
Affirming.
Appellee, a coal miner was injured! by falling slate while working in appellant’s miile in West Virginia. It is conceded that appellant’s liability is to be tested [535]*535by the laws of that state then in' force. It is charged' in the petition in this case that appellant had negligently employed and retained in its service, for some days before and at the time of appellee’s injury, an incompetent mine boss, who negligently failed to inspect the' roof of the mine from which the slate fell that injured appellee, and who failed to furnish appellee sufficient or suitable props to support the roof, as a result-of which the injury occurred. It is conceded that in West Virginia the mine boss and the miners are fellow servants. Still the law there is, as it is elsewhere, that one servant does not assume the risk arising from the negligence of a fellow servant if the master was negligent in the selection and employment of a laborer who was incompetent to do the work which he was put to do. As to the qualifications of a mine boss a statute of West Virginia thus provides (section 410, W. Va. Code Supp. 1907): “Sec. 15. In order to better secure the proper ventilation of every coal mine and promote the health and safety of the persons employed therein, the operator or agent shall employ a competent or practical inside overseer, to be called mine foreman, who shall be a citizen of this state and an experienced coal miner, or any person having five years’ experience in a coal mine, who shall keep a careful watch over the ventilating apparatus and the airways, traveling-ways, pumps, and drainage, and shall see that as the miners advance their excavations, proper breakthroughs are made, to properly ventilate the mine, and that all loose coal, slate and rock overhead in the working places and along the haulways be removed or 'secured so as to prevent danger to persons employed- in such mines; and that sufficient props, caps [536]*536and, timbers as nearly as possible of suitable dimensions, are furnished for the places where they are to he used, and such props, caps and timbers shall be delivered and placed at such points as the rules for the government of each respective mine provides for them to be delivered; and every workman in want of props, caps pieces and timber shall notify the mine foreman, or such other person who may be designated-for that purpose, at least one day in advance giving the length and number of props or timbers and cap pieces he requires; but in case of an emergency the timbers may be ordered immediately upon the discovery of any danger; and it shall be the duty of each miner to properly prop and secure his place in order to make the same secure for him to work therein. The said mine foreman shall have all water drained and hauled out of the working places where the same is practicable, before the miners enter and said working places kept dry as far as practicable while the miners are at work; it shall be the duty of the mine foreman to see that the cross-cuts are made as required by law and that ventilation shall be conducted through said cross-cuts into the rooms by means of check doors placed on the entries or other suitable places, and he shall not permit any room to be opened in advance of the ventilation current. Should the mine inspector discover any room, entry, airway or other working places being driven in advance of the air current contrary to the requirements of this act he shall order the workmen working such places to cease work at once until the law is complied with. And the mine foreman shall measure the air current at least twice each month at the inlet and outlet and at or near the faces of the advanced head[537]*537ings and shall keep a record of such measurements in a book having a form prescribed by the chief of the department of mines. An anemometer shall be provided for this purpose by the operator of the mine.”
The regular mine foreman, who is sometimes called the mine boss, became- sick some days before appellee’s injury. He.turned over the superintendency of the mine to the track repairer, the next in rank. Appellant’s general superintendent came along in a day or so, and learned that the mine had been placed under this track layer. He went to see the regular mine foreman about it, who told him that this man was careless and otherwise incompetent, and advised him to employ another man who was recommended as having more experience. But the superintendent says that he knew there was not a good feeling between the old foreman and the track layer, and exercised his own judgment in the matter, after looking into his work. The new foreman had been employed at this mine but a short time, probably a month or so, and was but a mere youth, about 20 years old. The evidence leaves no doubt that he was not sufficiently experienced to be a competent mine foreman. He did'not inspect the miners’ rooms to see as to their condition; he did not sound the roofs and walls, and did not see to other matters which were necessary in insuring the safety of the men; he did not promptly furnish, or require to.be furnished, to the miners the props called for by them, and which were necessary in shoring up the roof where they were working; he did not know the name or use of some of the instruments required by the law for testing the air in the mines. There was evidence that this young man had been working in and about coal mines for 8 or 10 [538]*538years — since he was a child. Probably be bad mined coal for as long as 5 years. Tbe West Virginia stat.ute quoted we think contemplated tbe employment of .competent, practical mine foremen. It was not so material whether they bad spent many years in mines if they were competent to be foremen. But we are not told that tbe state required an examination by a board of miner’s, or by tbe chief of tbe State Department of Mines, as to their efficiency. Competency .was tbe point aimed at, however. Tbe statute as- . sumes that one who has- bad 5 years ’ experience in a coal mine is presumably competent to be a mine foreman. But we cannot think tbe Legislature of West Virginia, evincing such care as was done in tbe elaborate system of mine inspection and regulation in .the statute before us, from which tbe foregoing quotation is made, intended to allow mine operators to knowingly employ incompetent foremen merely because tbe latter may have bad' 5 years’ experience in coal mines. On -the contrary, we think it was intended that only competent, practical mine foremen should be employed: If tbe foremen were known to be competent, they might be employed under this statute without reference to. their experience; but, if they were not known.' to be competent, the employer might assume, from their having bad 5 years’ experience in coal mines, that they were competent until tbe contrary was brought to bis knowledge. But if they were known to be incompetent, their employment was negligence, no matter what experience they may have bad, In tbe petition in this case it was not charged in terms that tbe young man, employed by appellant as foreman at tbe time of appellee’s injury, bad not bad 5 years’ experience in coal mines, al[539]*539though it was charged that he was incompetent, and was known by appellant to be so. It is claimed that the omission to charge that the foreman had not had 5 years’ experience made the petition deficient. But, construing the statute as we have above, we hold that the allegation was sufficient. Besidés, an issue was joined on the allegation as made, the proof covered both phases of the statute, as did the instructions of the court, and the verdict for appellee necessarily cured the error in the pleading, if there had been the error now claimed by appellant. Hill v. Ragland, 114 Ky. 209, 70 S. W. 634.
Appellant contends that the proximate cause of appellee’s injury was his failure to prop his roof, or to inspect it after he had shot the blast of coal from the face of the room near where the roof fell. As to the first proposition appellee testified, as did his brother who was working with him, that he had for .several days been requesting the mine foreman to send them props, but he had failed to do so. The foreman admits the request, but not as frequently as appellee claims it was, and excused his failure by saying he had directed another employe to bring in the posts; also that there were some posts lying near, about 50 or 60 feet away, which appellee might have used. Appellee says that the last-named posts were too long. The danger from the lack of suitable posts was actual, but not so apparent or imminent as to make it rash for one to work as appellee was doing without them. He was tempted to and did use his posts sparingly, as he had to lose his own- time in pulling them from an abandoned part of the mine. It was just such temptation and hazard that miners will let themselves be subjected to that the statute [540]*540was evidently aimed to prevent. The miner does not assume the risk, unless obviously perilous, arising from the failure of the mine foreman to furnish the posts and perform the other duties imposed by the statute for the safety of the miners, and particularly is this true when such failure is due to the incompetency of the mine foreman.
Appellee did not himself examine the roof of the mine upon returning to the room after firing the last shot. But his brother, who was his “huddle,” and was with him at the time, did examine it by sounding it with his pick, and it gave them no warning of its dangerous condition. This did not amount to contributory negligence. But whether it was or not, the question was one for the jury, and was submitted to them in the instructions given by the court.
Upon the whole case we fail to see any error in the record prejudicial to appellant.
The judgment is affirmed, with damages'.