(after making the foregoing statement). 1. Did the court err in refusing to instruct the jury to find for the defendant in the court below (plaintiff in error here) ?

The arguments of counsel upon this point cluster around the proposition as to whether or not there is any evidence in the record showing or tending to show any negligence on the part of plaintiff in error; the contention of the defendants in error being that the evidence shows that the cave occurred by reason of the insufficient and negligent timbering of the mine by the plaintiff in error, and its failure to take the necessary precaution to protect the workmen therein, or to take any reasonable steps to secure their safety; the contention on the part of the plaintiff in error being that the mine was properly timbered; that the cave occurred, or might have occurred, by what is called by its witnesses a “side thrust,” without any fault or negligence or want of reasonable care or precaution on its part to secure the safety of its employés. These contentions call for a brief review of the testimony offered by the respective parties upon this point. The defendants in er *4 ror introduced witnesses who testified, among other things, as follows:

Nickerson testified that he worked in stope 4 of the Copper level with Van Burén and others; that he quit working before the accident because he was hit in the head with a rock that came out of the timbers from above; that he heard rocks fall on the lagging; that he could see the roof 25 or 30 feet from the bottom, 12 feet above the height of the timbers; that there was an open space above the timbers of about 12 feet.

Anderson testified that he worked in stope 4, at the point where the cave occurred, a few days before the accident; that “the last morning I worked there I observed rocks dropping from the roof or back of the stope. Some of the rocks struck the timbers and the lagging, and some of them fell out in the ground. The stope was not timbered up to the roof. * * * During the time I worked there, there was a considerable cave from the roof or back of the stope.”

Fayle testified that he worked in the Copper level on February 28th, when Paul Edwards, the shift boss of the plaintiff in error, took the men out to wait until the ground quit settling. “Rocks fell there that night from the place where it had caved the day before where I was working. There must have been fifty or sixty cars in the cave of the day before. The timbermen that day put in a false set there to protect the muckers from the falling rock. * * * The Oats boys timbered in there that night. They were working there at the time of the accident, and were killed. * * * I worked there until about 10 o’clock,

when Paul Edwards, shift boss, called us but. It quit settling then, and Paul Edwards said he thought it was all right, and we all went back to work. I quit there then because I thought the place looked dangerous. I told Paul Edwards I didn’t want any more of that, and he said I could go over and work in line 3. When I left, the Oats boys were starting in to lag up over the sets they had put in.”

Pemberthy testified: That he was familiar with all branches of mining. That he understood timbering, stoping, and blasting; that he was working in the stope on the Copper level “at the time of the cave in which eight men were killed. * * * I was in sight of the men who were working in the stope, and who were afterwards killed. I could see them that night. I was working there at the time of the cave. The material that came down fell where I was working, after I got out.” That he had helped to open all the stopes in question. That he had made an examination of the timbers on the night of the accident, and gave a minute description of how the timbering was done, and said there was lots of open ground above the timbers. That he was 6 feet 1 Yz inches tall, “and could stand on top of those timbers without stooping, and my head did not touch the roof.” That where the cave occurred the ground was broken and settling. That “the timbering that was in there, and on top of which and between which and the roof there was no cribbing, did not serve any purpose at all in holding up the roof. * * * I saw rock falling the night of the accident, before the cave. A piece dropped down as big as my head every once in a while, and once in a while a car load would drop down. It would come down in broken pieces.” During the course of his testimony the following questions and answers appear:

And at another point, with reference to the falling of the cave:

I/Undwick testified that he was timbering at the place where the accident occurred the day before and the night of the accident until a late hour; he was on top of the timbers, and could see it was open above; that the timbers did not reach up so as to support the roof or back of the stope; that many places were not cribbed; that a cave occurred the evening before the accident which broke down the staging upon which they were working putting in timbers; that a man working with him who stood on top of the timbers could not reach the back of the stope without extending the six-foot staff or pole. He gave in detail the manner in which the timbering was done, and upon his cross-examination by Mr. Van Ness:

Prater testified that there was from 10 to 12 feet of open space above the timbers; that the timbers did not support the roof; that he did not think it was a safe place, and his brother-in-law, Paul Edwards, who was the shift boss there, changed him, on account of the dangerous con-, dition, to work in line 3.

Roberts testified that he was in the stope where the accident occurred between the hours of 9 and 10 o’clock on the night of the accident; that he noticed the ground was caving away all of the time and falling; that rock filling from the Peck level came dowm into the Copper level at the time of the cave.

Davis testified that Van Burén declined to go to work in the mine on account of inexperience as a miner; that the shift boss, Woods, told him he would have to go to work in the mine or quit his job; that on the night of the accident the shift boss, Paul Edwards, warned him (Davis) not to go through that stope, because it was not safe; that the timbering did not reach up to the roof; and that the timbers in that place were set on loose muck.

The witnesses on behalf of the plaintiff in error, especially the superintendent, the assistant superintendent, the foreman, assistant forer man, and head timberman, testified in detail as to how the work was *6 done; that the mine was thoroughly, completely, and effectively timbered, and the work done in such a manner as to make it safe for the workmen in the Copper level. These witnesses, or most of them, expressed the opinion that the cave which caused the death of Van Burén and others was not the result of defective timbering, but was in fact a “side thrust” resulting from some independent cause, and that the caves and droppings of rock, as testified to by the witnesses on the part of the defendants in error, were but incidents common to mining, and in no wise from want of proper timbering.

There was some testimony to the effect that lateral caves — “side thrusts” — might occur in properly timbered mines, and the plaintiff in error argues that the cave which occurred was of that character, and that it could not be held responsible therefor. Notwithstanding this testimony, several of the witnesses on behalf of the plaintiff in error testified that, if a mine was properly timbered, there would be no falling of rock through from the roof or sides.

John Minear, who had been a miner for 35 years, and at the time of the accident was timber foreman of the Mountain Copper Company’s mine, upon his cross-examination said:

There was no earthquake on the night in question.

Archer, the superintendent of the plaintiff in error, testified upon cross-examination that:

Charles Knuckey, who had been a miner for 42 years, and was day shift boss, and thoroughly familiar with the method of timbering the mine on the Copper level at that time, upon his cross-examination testified :

We are not called upon to discuss the weight of the evidence. That was passed on by the verdict of the jury. It is enough to say that there was ample testimony on the part of the defendants in error to au *7 thorize the court to submit the question in issue, as to the negligence of the plaintiff in error, to the jury.

2. Did the court err in refusing to give the instructions requested by the plaintiff in error, or in giving certain instructions of its own motion? The rule is well settled that the court is never required to give instructions in the language used by counsel. The duty of the court is always fully discharged if its charge embraces all of the principles of law arising in the case in the court’s own language. This court has in at least two cases expressly so decided. Swensen v. Bender, 114 Fed. 1, 9 , 51 C. C. A. 627 ; Stockslager v. United States, 116 Fed. 590, 599 ; 54 C. C. A. 46 . The courts in other circuits have announced the sanie rule. Union Pacific v. Jarvi, 53 Fed. 65, 71 , 3 C. C. A. 433 ; Alabama Ry. Co. v. O’Brien, 69 Fed. 223 , 16 C. C. A. 216 ; Western Co. v. Ingraham, 70 Fed. 219, 222 , 17 C. C. A. 71 ; Texas Ry. Co. v. Elliott, 71 Fed. 378, 382 , 18 C. C. A. 139 ; Missouri Ry. Co. v. Fuller, 72 Fed. 467, 469 , 18 C. C. A. 641 ; Boston R. Co. v. McDuffey, 79 Fed. 935 , 941, 25 C. C. A. 247 . In so declaring, the Circuit Courts have but followed the decisions of the Supreme Court. Indianapolis R. Co. v. Horst, 93 U. S. 291, 295 , 23 L. Ed. 898 ; Anthony v. Railroad Co., 132 U. S. 172 , 10 Sup. Ct. 53, 33 L. Ed. 301 ; Railroad Co. v. McDade, 135 U. S. 555 , 575, 10 Sup. Ct. 1044, 34 L. Ed. 235 ; Marchand v. Griffon, 140 U. S. 517 , 528, 11 Sup. Ct. 834, 35 L. Ed. 527 ; Railroad Co. v. Winter’s Adm’r, 143 U. S. 61 , 74,12 Sup. Ct. 356, 36 L. Ed. 71 ; Hartford Life Ins. Co. v. Unsell, 144 U. S. 439, 447 , 12 Sup. Ct. 671, 36 L. Ed. 496 .

The practice of taking the instructions as requested by the respective parties, and therefrom formulating a general charge embracing all the matters of law arising upon the pleadings and the evidence, is always to be commended, because in this way the points in issue may be sufficiently declared, and clearly presented to the jury, without unnecessary repetition and verbose language. The court’s duty is to simplify its charge to the jury, and make every effort to render it as free from complexity as possible.

Conceding, for the purpose of this discussion, that the instructions asked by plaintiff in error were correct, still, if the principles embodied therein were correctly given by the court in its charge, no error occurred. The record shows that at the close of the charge, when counsel were called upon to announce whether they desired to reserve any exceptions, the following colloquy occurred:

The trial court was too liberal in permitting counsel to have formal exceptions noted, without requiring them then and there to designate the points of their exceptions, before giving further time to formulate them. The court overlooked the object of the rule in this respect, and ignored the repeated and uniform decisions of the Supreme Court and the several Circuit Courts of Appeals upon this subject, to the effect that exceptions to the charge of the court are of no avail unless the record shows that they were taken or reserved while the jury were at the bar. As was said by the court in Harvey v. Tyler, 2 Wall. 328, 339 , 17 L. Ed. 871 :

The attention of the trial courts, as well as of counsel, is here called ,to the necessity of enforcing this rule in the method herein indicated; otherwise the appellate courts are not bound to consider them.

After an examination of the instructions asked for by the plaintiff in error, and of the charge of the court upon the points presented by the requested instructions, our conclusion is that the points involved were .fully covered by the charge of the court. In fact, the contention of the plaintiff in error is not that the charge of the court is erroneous, but that it “was so worded as to take the minds of the jurors from the proposition to which counsel for plaintiff in error desired to attract their attention.” It is the duty of the trial'court to enunciate the principles applicable to every material point in as clear and direct language as possible, without attracting the attention of the jury in favor of or against either party. There being two theories as to the cause of the 'cave in the mine, one of which, if believed to be true by the jury, would exempt the plaintiff in error from all liability, and the other hold it responsible for the injuries resulting from it, and there being evidence to support both theories, it was the duty of the court to impartially submit both theories to the jury by appropriate instructions. We deem it unnecessary to incumber the record with a copy of all the requested instructions, or the instructions given by the court in lieu thereof.

It is claimed, among other things, that the instructions asked by the plaintiff in error expressed the law of this case as given in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 663 , 21 Sup. Ct. 275, 45 L. Ed. 361 , and as laid down upon a former appeal herein (Mountain Copper Co. v. Van Buren, 123 Fed. 61 , 59 C. C. A. 279 ), and should have been given; and it is suggested, in this connection, that the court, in its charge, departed from this rule. It is therefore proper to notice some portions of the charge upon this point, to show that the court did not depart from the rule as announced in the cases referred to.

The court charged the jury:

With reference to another point involved in the instructions which are complained of, the court, in its charge, said:

It is claimed that the court erred in instructing the jury as follows:

. The claims of error are based upon the italicized portions of the instructions. In the consideration of these questions, it must be borne in mind that the entire charge must be taken as a whole. It is always easy to criticise certain sentences, which, taken disconnectedly from what áppears before or after, may appear to be erroneous or to convey a wrong impression; but, when construed in the light of all that is said in the charge, it becomes manifest that the jury could not possibly have been misled.by the isolated sentence complained of.

These remarks are specially applicable to instruction 22, under review. It is claimed that the italicized portion conveyed the idea to the jurors that it was their duty to determine the fact “through their own good sense,” independent of the evidence. The jury was previously charged generally that it was its duty to determine all questions of fact from the evidence. The instruction in question, after the inadvertent expression referred to, explained that both classes of timbering are approved of, when properly done; and in other parts of the charge, not objected to, the court instructed the jury that it was its duty to determine from the evidence whether the work was properly done.

One of the objects of the rule requiring counsel to note their exceptions to the charge before the jury retires is to enable the court to correct omissions or mistakes, if any are inadvertently made. If the attention of the court had been called, as it ought to have been, to the fact that, instead of the jury determining the point “through their own good sense,” it should be determined “from the evidence,” it would undoubtedly have been corrected.

It is questionable whether this court ought to consider the objections made by counsel to instruction 22.

*11 In Western Coal M. Co. v. Ingraham, supra, the assignment of error was based upon the omission of the word “reasonably” in the phrase “safe place to work.” The court said:

The same court, in Western C. & M. Co. v. Berberich, supra, said:

We are of opinion that the principle of law announced in instruction 23 is correct. We also think it was applicable to the facts of this case. Van Burén was wholly inexperienced in mining. By going to work as a “mucker,” he only assumed the ordinary risks and dangers incident to such employment. He had nothing to do with the timbering of the mine. He had the right to assume (not having any knowledge on the subject) that the timbering would be done by his employer in a proper manner. Union Pac. Ry. Co. v. Jarvi, 53 Fed. 65, 69 , 3 C. C. A. 433 , and authorities there cited; Western Coal & M. Co. v. Ingraham, 70 Fed. 219, 224 , 17 C. C. A. 71 ; Swensen v. Bender, 114 Fed. 1, 7 , 51 C. C. A. 627 , and authorities there cited; Bunker Hill & S. M. & C. Co. v. Jones (C. C. A.) 130 Fed. 813, 818 .

The vital point relied on by the defendants in error was that the plaintiff in error was careless and negligent in the timbering of the mine, and that the cave was occasioned by such neglect. Touching this theory of the case, the court was authorized to give this instruction.

In Mather v. Rillston, 156 U. S. 391, 399 , 15 Sup. Ct. 464, 39 L. Ed. 464 , where the plaintiff in the court below claimed that the injuries he received were caused through the carelessness and negligence of the defendant “in storing the powder and caps in the house without informing him of the increased risk and danger of his remaining in employment therein,” Mr. Justice Field, in delivering the opinion of the court, called attention to the fact that where occupations which are attended with danger can be prosecuted, by proper precautions, without fatal results, such precautions must be taken, and in this connection, among other things, said:

It may be said that that was an extreme case. But if the testimony'' of defendants in error is worthy of belief — and the jury have so found —then the method of timbering in the mine in question left as great a hazard of danger as if powder or other explosives had been stored away in the upper levels. The principles announced by Mr. Justice *12 Field have been frequently followed in mining, railroad, and other cases. Burke v. Anderson, 69 Fed. 814, 817 , 16 C. C. A. 442 ; Western Coal & M. Co. v. Ingraham, 70 Fed. 219, 221 , 17 C. C. A. 71 ; Western C. & M. Co. v. Berberich, 94 Fed. 329, 333 , 36 C. C. A. 364 ; Cincinnati Ry. Co. v. Gray, 101 Fed. 623, 628 , 41 C. C. A. 535 , 50 L. R. A. 47; Kelley v. Fourth of July M. Co., 16 Mont. 484, 497 , 41 Pac. 273 , et seq.

With reference to instruction 25, it is not claimed that Van Burén had anything to do with the timbering of the mine, or that it was any part of his duty to inspect or repair the same.

In Western Coal & M. Co. v. Ingraham, supra, the court said:

3. This brings us to the exceptions taken to the rulings of the court in sustaining the objections to certain questions asked witnesses by the plaintiff in error. Of the eight assignments on this point, only two are discussed by counsel. These we will notice:

(1) The record shows that the witness Jones testified on behalf of the plaintiff in error that caves occasionally happen without premonitory symptoms of their coming. Fie was then asked:

We think the ruling of the court was correct. The witness had already testified to the fact which counsel wished to impress upon the jury — that caves might occur in properly timbered mines — and it was then sought to obtain the witness’ idea as to what might cause such caves, without reference to any conditions existing at the mine in question. It may be that a hidden cavern filled with flowing water might seep through the upper levels and cause a cave, wdiich human foresight could not guard against. But there is no pretense that anything of that kind existed at the time of the cave in question. It may be that a *13 volcanic eruption might cause a cave in a mine that was properly timbered, but nothing of that kind is shown to have occurred. The same as to an earthquake, and numerous other imaginary things. The court was right in restricting the testimony to conditions existing at the time, and refusing to enter into the wide field of speculation and conjecture as to what might cause a cave in a well-timbered mine. The question for the jury to determine was whether the cave was caused by the defective timbering of the mine, or by a “side thrust.”

(2) The next exception has less merit. Upon cross-examination the witness Pemberthy was asked:

How could the defendants in error be in any manner bound by any omission upon the part of Pemberthy to suggest to the foreman or shift boss or head timberman of the corporation that there was danger in working in the mine on account of the defective timbering? The fact, if it be a fact, that Pemberthy did not report the danger, did not tend to impeach him, and did not tend to contradict his testimony as to the condition of the timbering. The most that could possibly be said is that, if the conditions were such as testified to by him, it would be natural for him to have spoken about it. It would, at best, only show that he was careless, and perhaps negligent, in not reporting the danger.

We have examined the entire record with a view of ascertaining whether or not any prejudicial error occurred at the trial. Our conclusion is that the trial was in all respects fair and impartial, and free from such error.

The judgment of the circuit court is affirmed, with costs.