murrer when the misjoinder appears on the face of the complaint, and gives the defendant the right to raise it by answer only in those cases where the complaint fails to show such misjoinder. As we construe the code, where this pleading shows persons are joined who have no right to maintain a joint action, the defendant must demur, and thus save the question; otherwise he waives it.

The circumstances pertaining to Lamb's death do not show such contributory negligence on his part as to enable us to say, as a matter of law, that his negligence contributed to the injury. He was probably at work, doing what his duties. required, and we are unable to conclude his death resulted from his temporary suspension of work while conversing with Carpita, who was killed at the same time. This question of the negligence of the deceased was submitted to the jury under apt instructions, which correctly stated the law of contributory negligence, so far as it was applicable to the present case, and the finding of the jury concludes this question. There is much more difficulty respecting the instructions covering the question of the duty of the company with respect to the roof. As abstract propositions of law, the court's statements would not be subject to very much criticism, but as applied to the present case, they do not serve to enlighten the jury respecting the duty of the company, and what, as a matter of law, would be negligence on its part in this regard. From the commencement, the case seems to have been tried on an erroneous hypothesis. The complaint, and the evidence offered to support its allegations, confused the general duty of the defendant respecting the care of its mine with its particular duty which it was attempting to discharge when Lamb was killed. The plaintiff was permitted to prove the general condition of the roof antecedent to the accident, and on this evidence the jury were instructed as to the company's duty to keep the mine in a safe condition. for the protection of the workmen. The trouble probably arose from the difficulty of deciding what may be taken as the proximate cause of the injury and those remoter matters

which may not be weighed in that connection. There is not subject more difficult of apprehension, either by the lay or the professional mind, than this one of proximate cause. Many courts, in all manner of cases, have attempted to lay down definitions respecting it since the day when the "squib was thrown into the market place." Lamb was not killed. because the company had failed, if they did fail, to keep the roof of the entry in a safe condition. The first fall of rock did not kill Lamb. His death resulted from a succeeding fall, which might have been avoided had proper means been used for the purpose. In this the witnesses agreed. There is some dispute respecting the situation of the roof, and it is not made clear whether either end of it rested on the rib, but it is tolerably certain two or three additional props would have averted the disaster. This is not an absolute demonstration from the evidence, but the witnesses all concur in the opinion that the roof could have been adequately supported by props until the final sets of timber were completed and put in place. Manifestly, if this be true, the original negligence did not occasion the injury sued for. There was an absence of an unbroken connection between the alleged negligence of the company in the care and maintenance of the roof, and their want of care in propping it up, which brought about the injury. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Lannen v. The Albany Gas-Light Co., 44 N. Y. 459; Rogers v. Inhabitants of Newport, 62 Me. 101.

It would not serve a useful purpose to cite the numerous cases which are illustrative of this general doctrine. They all agree the defendant is responsible only for the natural and probable consequences of a wrongful act. The judicial labor is always spent in the search for what the learned jurists call "the causa causans," rather than the " causa sine qua non." It is especially difficult for the ordinary juryman to disregard what appears to be the causes, however remote, which have some sort of apparent connection with the actual thing which occasioned the injury. When the plaintiff was permitted to prove the antecedent condition of the roof, and

the jury concluded, if they did, the company had been negligent respecting its care and maintenance, they would not be very astute to find in the failure to prop the roof while the repairs were being made the real cause of Lamb's death. This question is fairly saved by the request for instructions, even though prompt and apt objections were not always interposed to the introduction of the testimony. Much of the evidence was admissible in order to show the condition of affairs when the repairs were begun. But the jury should have been directly instructed to disregard the proof respecting the condition of the roof of the entry antecedent to the first fall, in determining the question of negligence and the cause of the injury. The remote and the proximate causes should have been aptly and carefully distinguished, and although, probably, it might have been quite impossible to eliminate the whole difficulty, the law should have been carefully stated to the jury.

Another question fairly presented calls for some additional statement to precede the general discussion of the principle. Robert Allen was the mine boss appointed under the statute. He was a man of many years' experience, and his competency was not attacked by any of the plaintiffs' witnesses. It was he who directed the placing of the prop and cap under the roof to support it while they were removing the first fall, and getting the timber sets ready for a permanent support. Lamb had no connection with Carpita, except as a fellow laborer in the mine, engaged in a different employment. He was a driver occupied in hauling coal to the mouth of the pit. He was engaged in the work of removal when the second fall came and killed him. The exact duties of a mine boss, aside from those described by the coal mining act of 1885, are not disclosed. It was not shown that the boss had any control over the men in the mine, other than what must necessarily come to him from the discharge of his statutory duties. Whether he had power to employ or discharge them is not a matter of evidence, nor is his authority either over the mine or over the men established. It must, however, be coincident

with the authority given him by the statute. Somewhat more than a general reference must be made to the coal mining act of 1885, for much reliance by way of defense is placed on it by the appellant. It contains many provisions obligatory on the mine owner and the miner. Relative rights and obligations are imposed on each. The mine boss is an individual so designated by the statute, who must be employed by the mine owner, and put in charge with reference to its safety and its security. He has entire supervision of the whole system of the ventilation of the mine, likewise of its entries, drifts, and rooms, and all machinery and appliances which are used in its operations. He is bound to make his reports regularly to the mine inspector, and is subject to severe penalties for any violation of the act. Of necessity, this would include any failure on his part in the supervision, inspection and care which the statute requires. Miners are likewise given the right to inspect the mine and machinery, either in person or by committee, conjointly with the owner, or otherwise, as they may choose, and to take such steps as their prudence may dictate to secure their own safety and prevent accidents. In another section a right of action is given to certain designated parties in case they sustain damage by reason of any failure to comply with the provisions of the statute, or because of any violation of its requirements. The act is identical in the particulars involved in this suit with the one in force in Pennsylvania, and regulating the operation of coal mines in that state. Manifestly, this question is new to the jurisprudence of the state. There is prob ably no subject of the law which has been developed with greater learning, illumined by more persuasive arguments, and yet rested on more diversified foundations, than the law of negligence, as applied in actions brought to recover damages for injuries sustained because of the negligence of other persons employed by the common master.

The large and constant increase in the mining, manufacturing and business interests of this and other commercial countries has occasioned a corresponding growth of aggre

gated and corporate interests, which are necessarily intrusted to the various instrumentalities of agency for their management and control. This has brought into peculiar notice, and under a broad and enlarged discussion, the question of who is a fellow servant for whose negligence the master may not be called on to respond. Many of the elements which have sometimes been applied to settle this question are in reality but items of evidence, and furnish no reliable guide by which the main inquiry—“ was the master negligent, and is he responsible?"-can be settled. Where the proof shows the fellow servant to have been in control of the men under him, we cannot logically insist the master shall, under all circumstances, be liable for his negligence, even though it has occasioned the injury. Authority does not dispose of the matter. The inquiry still remains,—was the master negligent?—and the courts must still ascertain whether the fellow servant occupied such a relation to the master and to his colaborer as that his negligence is to be taken as the negli gence of the master. What is known as the Ross Case, in 112 U. S. 377, is one of the most striking illustrations of the cases of this class to be found among the decisions of the best courts of the country. To a good many of the profession it appeared like a departure from the established law, and to amount in fact to a radical modification of the rule respecting fellow servants. Of course, most courts yielded their judgment to that of the very distinguished tribunal which pronounced it, although it became law by the judg ment of a bare majority. When this case was cited with approval by the present learned chief justice of our supreme court, in Denver, S. P. & P. R. Co. v. Driscoll, 12 Colo. 520, he very happily chose, as an illustration of the basis on which the Driscoll Case was put, a quotation which is very abundantly sustained by the principle underlying the law, and expressly approved by the later case, which so largely modifies and interprets the Ross Case. It must always be true that wherever the individual whose negligence occasioned the injury to the servant stands in the place of the master, and is