ON REHEARING.
McCLELLAN, J.In deference to the earnest insistence of counsel for the applicant for rehearing, the original decision affirming the judgment below, and the bases for the conclusion thus given effect, have been carefully reconsidered. The application is without merit. It is settled here that an appellant can never have a reversal for special errors committed on the trial from *668the judgment on which he appeals, if in no event he could prevail in the litigation. — Bienville Co. v. City of Mobile, 125 Ala. 178, 27 South 781; Brammer v. Pettyjohn, 154 Ala. 616, 45 South. 646; W. U. Tel. Co. v. Whitson, 145 Ala. 426, 41 South. 405; among others. So, if the conclusion prevailing on the original decision is sound, manifestly the errors (if so) to which reference is had in brief of the applicant for rehearing cannot avail to reverse the judgment; and, if so, the court would be engaged in an wholly vain service to enter upon the consideration and decisions of such questions.
The undisputed facts show that intestate’s superior last visited the mines about 9 a. m. previous to intestate’s fatal injury about 1 p. m. of that day; that when intestate’s superior pronounced the rock safe at 9 a. m., its condition, with respect to support, was entirely different from that condition-just before and'at the time of the injury; that the change in this condition was wrought by intestate’s own labors in removing •the coal, which he was engaged in mining, that underlay the rock; that intestate was fully aware of the effect of the removal of this support from beneath the rock; and that he (intestate) sounded&wkey;tested — the rock with his pick and concluded it was still safe for him to place himself in the sphere of danger if it fell, a conclusion on which he relied and which unfortunately proved to be erroneous. There was no ruling in rejection of evidence that excluded testimony which, if admitted, could have effected to contradict in any degree the conclusions of the fact stated in the original opinion and reiterated on this occasion. No warning or advice could have added to his appreciation of the hazard, created by his labors, to which this record shows he voluntarily, and in the process of mining, subjected himself —Brammer v. Pettyjohn, supra. So, whether he then stood in the re*669lation of servant to defendant as master or in the relation of independent contractor, or the servant of an independent contractor, was and is immaterial.
The application for rehearing is denied.