delivered the opinion of the court:
Harry Kilduff, defendant in error, recovered a judgment in the circuit court of Macoupin county for $1500 for personal injuries sustained by him while working as a miner in one of the rooms of the Consolidated Coal Company’s mine. The declaration charges a violation of the statutory duty to inspect the working places of the mine and place a conspicuous mark at all dangerous places. At the close of all the evidence the defendant company made a motion to direct a verdict in its favor and offered an instruction for that purpose, which was refused. A judgment based upon the verdict of the jury has been affirmed by the Appellate Court for the Third District, and the case is brought to this court for further review upon certiorari.
The only error assigned in this court is the ruling of the circuit court in refusing to direct a verdict for plaintiff in error. To decide the question presented by this assignment of error it is necessary to examine the evidence to determine whether there is any evidence fairly tending to support the verdict.
The evidence is not in serious conflict. It shows that plaintiff in error’s mine had not been operated for several weeks prior to June 1, 1908, on account of a strike. Operations were resumed June 1. On June 2 the mine inspector examined room No.- 31, in which the defendant in error worked, and discovered an unsafe condition in the roof, which he marked by placing a cross thereon with chalk, which indicated to the miner that a prop should be placed under the unsafe roof. Defendant in error placed a prop at the place indicated on June 2 and continued his work in the room with safety. On the afternoon of June 2 shots were fired at the face of the coal, which knocked the prop down that had been placed there earlier in the day. Before defendant in error entered the mine to commence work on June 3 the mine inspector again entered the mine and discovered that the prop had been knocked down by the shots fired the evening before. Observing that the chalk marks placed upon .the roof at the point of danger the day before were still plainly visible he did not re-trace them but marked on the face of the coal the figures “6/3,” with chalk, which indicated that the mine had been inspected on the morning of June 3. Defendant in error entered the mine and saw the danger mark on the roof and also the figures indicating the inspection on the morning of June 3. He commenced shoveling to clear the gob away so that he could re-set the prop, and while so engaged a fall of slate from the roof injured him.
The foregoing facts are not controverted. The only complaint that can be based upon these facts is the failure of the mine inspector to go through the useless operation of re-marking or re-tracing his old marking of the dangerous place in the roof.- Under the evidence we are constrained to hold that the statute has not been violated by plaintiff in error. The danger mark made June 2 was still plainly visible upon the roof, and when the inspector visited the mine on June 3 and registered the date of his examination, it was, in effect, a continuance of the danger mark that was then upon the roof. Had he re-traced the mark on the morning of the 3d the result would not have been any different. The defendant in error recognized the dangerous condition in the roof and at the time of his injury was preparing to re-set the prop. He had all of the information and protection that he would have had had the mark been re-traced on June 3.
The evidence fails to prove the violation of the statute upon which the recovery is predicated. It was therefore the duty of the court below to direct a verdict for plaintiff in error.
The judgments of the circuit and Appellate Courts are reversed and the cause remanded.
Reversed and remanded.