I concur in the opinion of Mr. Justice Clarke, but I.also think that there was no cause of action proved and that the court should have dismissed the complaint. The deceased was engaged in excavating a trench in which during the course of the excavation it appeared • that a stone protruded from a wall of the trench about eighteen inches or two feet. It was determined to build this stone into the retaining wall on the side of the trench and not to attempt to take it out, and tíie deceased with the other workmen engaged in the excavation continued their work. There was nothing in this situation that appeared dangerous to the workmen if they exercised ordinary care in working around this exposed stone and the men seem to have been cautioned in relation to it. The situation was as ' apparent to any of the men in the trench as it was to the defendant *139or Ms agents, and there is nothing to show that the defendant should have anticipated such an accident or was negligent in not providing against it.
) J udgment and order reversed, new trial ordered, costs to appellant to abide event.