The opinion
Reversed June 29, 1915.
On the Merits.
( 149 Pac. 940 .)
Department 1. Statement by Mr. Chief Justice Moore.
This is an action to recover damages for a personal injury. The complaint charges, in effect, that the defendant is a corporation and engaged in mining coal beneath the earth’s surface at such a depth as to render the work inherently dangerous on account of the liability of noxious and combustible gases to accumulate, which could have been guarded against by the exercise of reasonable care and diligence, and that the defendant failed to install in its mine sufficient ventilating fans and air shafts to dissipate such gases, by reason whereof the plaintiff, one of its employees, on November 17, 1913, on entering a room of the mine as directed, was severely burned and injured as a result of a violent explosion which just then occurred.
The answer denies the negligence alleged, and avers, in substance, that the plaintiff was supplied with a safety lamp which he was instructed to use on enter *280 ing the chambers of the mine, but, disregarding the directions, he entered a coal-room with a lamp having an exposed flame, and by reason thereof a small explosion occurred, and he was slightly injured, which hurt resulted from his own contributory negligence. The reply having denied the allegations of new matter in the answer, the cause was tried, resulting in a verdict and judgment for the defendant, and the plaintiff appeals. Reversed. Rehearing Denied.
For appellant there was a brief over the names of Mr. Isham N. Smith, Mr. William T. Stoll and Messrs. Brenn & Hyde, with an oral argument by Mr. Smith.
For respondents there was a brief over the names of Mr. John D. Goss and Mr. J. C. Kendall, with an oral argument by Mr. Goss.
Opinion by
Mr. Chief Justice Moore.
An exception having been taken by the plaintiff’s counsel, it is contended that an error was committed in charging the jury as follows:
“The law provides that, notwithstanding the negligence or carelessness of the defendant, if the plaintiff himself has been guilty of contributory negligence, such negligence as proximately contributes to the injury, then the plaintiff cannot recover, notwithstanding the negligence of the defendant.”
. It is maintained by the defendant’s counsel that, to entitle an exception to be considered on appeal, it must be separately stated in the bill of exceptions with so much of the evidence as is necessary to explain it (Section 171, L. O. L.); and, since no testimony is thus set forth, the question suggested is not properly before this court.
*281 2. When, an exception is taken to the ruling of a trial court upon the admission or exclusion of evidence, so much of the testimony as will enable the appellate court fully to understand the question involved must be copied in the bill of exceptions.
3. If, however, an exception relates to the giving of an instruction which under the pleadings would have been an improper application of the rules of law to the case, under any view that might be taken, the error will be reviewed on appeal, though no testimony is incorporated in the bill of exceptions: Willis v. Horticultural Fire Relief, 69 Or. 293 ( 137 Pac. 761 , Ann. Cas. 1916A, 449).
4. Section 6 of the Employers ’ Liability Act reads:
“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage ’ ’: Gen. Laws Or. 1911, c. 3.
The decisive question to be considered is whether or not the facts alleged in the complaint bring the cause of action within the provisions of the statute last cited. That enactment declares that all persons having charge of or responsible for any work involving-risk or danger to the employees “shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb”: Id., § 1. It will be remembered the complaint alleges that the work in which the plaintiff, as an employee of the defendant, was engaged when he was injured, was intrinsically dangerous. No evidence is before us from which the degree of danger to which the plaintiff was exposed can readily be determined, but from a mere inspection of the averments of the complaint it is believed the cause of action set forth therein brings it *282 within the provisions of the act mentioned: Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351); Schulte v. Pacific Paper Co., 67 Or. 334 ( 135 Pac. 527 , 136 Pac. 5 ); Dunn v. Orchard Co., 68 Or. 97 ( 136 Pac. 872 ); Wasiljeff v. Hatuley Paper Co., 68 Or. 487 ( 137 Pac. 755 ); Browning v. Smiley-Lampert Lumber Co., 68 Or. 502 ( 137 Pac. 777 .)
An error was committed in giving the instruction complained of.
The judgment is therefore reversed and a new trial ordered. Reversed. Rehearing Denied.
Mr. Justice Burnett, Mr. Justice Eakin and Mr. Justice McBride concur.