This is an action brought by the ap-pellee, Joe Garrett, against the appellant to recover damages for personal injuries received by appellee while working as a convict, under appellant’s control, in appellant’s coal mine. No questions are raised on the pleadings; the refusal of the court to give certain charges requested by the defendant, the appellant here, and denying the motion for a new trial, constitute the only assignments of error. The complaint contained two counts. In the first count, after stating the place, and the way in which plaintiff was hurt, which was by “a rock or a part of the roof of said mine” falling upon him, the negligence of the defendant is averred as follows : “Plaintiff alleges that 'said rock or a part of the roof of said mine fell upon him, and he suffered said injuries and damage by reason and as a promixate consequence of the negligence of the defendant in or about causing or allowing said rock or the part of said roof of said mine to fall upon plaintiff as aforesaid.” The second count, adopting the narative facts of the first, averred the negligence to consist in that the “defendant negligently caused plaintiff to be engaged in or about its business under or nearly under said rock, or the part of said roof which fell as aforesaid, while same was in danger of falling upon plaintiff as aforesaid.”
The general issue was pleaded, and the questions presented are to be considered solely with reference to this plea.
*566There was evidence that tended to show that the plaintiff while working as a convict for the defendant in one of its coal mines in Jefferson county, had his hand crushed by a falling- rock from the roof of the mine; that just before the accident, one Hilliard Harris, who was at the time acting as the foreman of the “gang,” made a blast with dynamite and powder in the rock in the roof, for the purpose of tearing down the same in-order to give more distance overhead; that the shot or blast blew down the rock or slate of the roof all the way across the slope, which was about fifteen feet wide; that after the shot was made, Harris called the plaintiff back “to go to pitching the rock up out in the ‘gob,’ ‘walling up the slope’,” and while the plaintiff was so engaged in . picking up the rock which had been knocked down, the said Harris was “pulling down” rock. This was in the' “entry” which had been made, and from which coal had been taken on one side of the slope, and where the rock which had been knocked down was being thrown to malee a wall on the side of the slope. From this tendency of the evidence it was open to the jury to infer that as a result of the shot or blast in the roof which shattered the rock all the way across the slope, all of the rock so shat-' tered, had not been knocked down from the roof, when the plaintiff was put to work to pick up the loose rock which had fallen, and that this was known to the sub-boss Harris, who was engaged in “pulling down” loose rock, when he put the plaintiff to work in picking up the rock which had been shot down. If such were the facts, and it was open to the jury.to so fin'd from the tenden-' cies of the evidence, there was a lack of that care on the part of the defendant, or its agents, in its conduct towards the plaintiff, which amounted to negligence. We, therefore, think, the court committed no error in refusing the affirmative charge, which was' asked by the' defendant as to both counts, and properly submitted the question to the jury. While there was evidence tending to show that the plaintiff was hurt by a: rock falling from the roof of the mine, and which in: ’connection with other evidence in the case was sufficient to authorize the presumption of negligence on the part of *567tbe defendant, there was no testimony of any effort having been made by the defendant or its servants to ascertain the condition of the roof after the shot was made, and before calling and putting the plaintiff to work under it; therefore, there was no testimony from which the jury could determine that the danger of falling rock could not have been detected by the exercise of reasonable care by the defendant. For this reason, if no other, charge No. 6, requested by the defendant, was properly refused. What we have already said above is sufficient to show that the charge No. 9, requested by the defendant, was also properly refused.
Written charge No. 8 refused to the defendant is a substantial duplicate of the second charge copied in the record among the charges given at the request of the defendant, and, therefore, the court committed no reversible error in refusing this charge. We have carefully examined the evidence and we cannot say that the court erred in overruling the motion for a new trial.
The judgment appealed from will be affirmed.