.(dissenting). I am unable to agree with the majority opinion. I do- not believe the evidence received upon *541the trial was sufficient to show that defendant did’ the amount of work that the law required. Upon the application for a new trial, which application was based1 upon newly discovered evidence, not only did appellant show that the shaft sunk was materially smaller in every dimension than as testified to by respondent’s witnesses upon the trial; but that fact was admitted in the answering affidavits submitted by respondent thus disclosing, as an absolute verity,' that respondent failed to comply with the law. Respondent cannot he heard to say that appellant should have anticipated that its witnesses might commit perjury and testify falsely in relation to such dimensions — a fact of absolute mathematical certainty— and that therefore appellant should have measured such shaft prior toi the trial. Appellant 'had a right to rely upon the presumption that respondent’s witnesses would testify truthfully in relation to the size of the shaft — a fact not open to honest dispute, and of which it had within its sole control the means of absolutely correct knowledge. The' rules oif law guiding courts are not based upon a presumption that witnesses will perjure themselves, but rather upon the presumption that they will swear to what they 'honestly believe to' 'be the truth. Moreover, it is not true that appellant had free access to the shaft prior to the trial. Such shaft was in the possession of respondent, and could only be reached by way of a building controlled by respondent.