On Motion for Rehearing.
There are no just grounds for saying the jury was not warranted in reaching the following conclusions: (1) That the place where Caddell was working at the time of his death was unsafe, and that by reason of that condition he was killed; (2) that this unsafe condition was due to the failure on the part of the appellant to sooner prop the roof and prevent its falling; (3) that the failure of appellant to sooner prop the roof was due to its negligence. It is insisted, however, that Caddell knew of the unsafe condition of the roof, and, whether engaged in the work of making the place safe or not, he assumed the risk of any injury that might result from that condition. We can best answer the contention of counsel by quoting portions of the testimony upon which the jury might have relied in support of its conclusions.
Slayten, a witness for the appellee, in speaking of the débris which had fallen on the track in the eighth entry before the accident, stated: “I would guess that piece of rock or slate which fell to weigh between two and four tons. The employés of the company, not men working by the ton, were the ones that were taking this slate and stuff off of the track at the time of the accident. John Caddell and the man Daniels were both company men. The company men do this cleaning up of falls, and the diggers and drivers don’t have help unless they are just a minded to. * * * Bob Cranford worked with John Caddell when they were not removing this falling stuff. They worked on the track, laying switches, tracks, etc. * * * After Mr. Gray went down in the mine to examine that place at noon, he came hack, and said he thought we could go back to woi'k all right that afternoon. We were supposed to start down in the mine to work at about 15 minutes of 1 o’clock. I do not .know exactly who was present when he told us to go back to work that afternoon. Several of the boys were there. John Caddell was there. * * * John was talking to me-about that place while we were eating dinner, and before Mr. Gray said for all of us to-go back to work. He said he rather thought the place was dangerous. John was helping-remove this slate before dinner. I did not hear any one tell him to do this work. I did-not hear Gray say anything directly to John, when he was talking to us about going back to work. He was talking to all of us. * * * In my opinion, if this place had been propped, the fall would not have occurred. Mr. Cranford was with Mr. Gray when he came out of the mine that first time. He said he thought the place was all right,, -and to go back and finish cleaning it up and get to work.” Ed Duncan, a witness for the-plaintiff, testified: “While we were at the-top eating dinner, John Caddell said that, if he had not been sick and laying off, he would' not go back that afternoon. When Mr. Gray came up out of the mine, ne said that he had examined the place, and thought it was perfectly safe. Told me to get the other driver to also pull in my place until we could get this place cleaned up. This was just before-work time, and after John had said that about being sick. He said this in the presence of John Caddell. John Caddell and I went down to work at the same time. f Bob Cranford was the head trackman. Cad-dell was his helper. Head trackman attends to the main track. It is the duty of the-company man that first finds any slate or-stuff on the track to take it off. * * *■ Caddell was a trackman. It was a part of Caddell’s duty as trackman to help take off' this stuff. There was no timber at this-place where he w-as killed. It was not propped. It was not safe without props there. Its condition was very bad, was arched out 7 or 8 feet high. If it had been properly timbered, it would have prevented this fall. It was liable to fall at any time when there-was no timber there. When Mr. Gray came-back up after his examination, he did, not say how he examined the place, but said it was perfectly safe and for us to go back to-work.”
C. R. Cranford, a witness for the defendant, and Caddell’s immediate superior, testified: “At the place of this fall, shale or slate had fallen on the track. The roof where this stuff had fallen out looked to be-good. The roof was then of rock. The slate-had already fallen. * * * We went down there to sound around, and see if we thought the place was good and all right. When we-went down there, I picked up a few chunks-of dirt or slate, and threw it off the track. Mr. Gray was sounding around. I do not know now what he used to sound the place-with. * * * I have sounded the roof of mines. That roof sounded safe. I could hear-*845the sound it made when Mr. Gray knocked on it. I do not believe he did anything except to sound the mine. I did not do anything. * * * I suppose there was a ton- of this stuff that had fallen on the track, or maybe not so much; maybe only about 1,000 pounds. * * * We all got up to this fall in the eighth entry. Mr. Gray, Warner, Caddell, and myself were all throwing some of this fallen stuff off of the track. This was the fall where I had been with Mr. Gray that morning. Gray was there with us. If he was doing anything besides throwing this stuff oft of the track, I did not notice him. * * * Nobody told me to pick up that slate. I do not know of anybody telling Caddell to pick it up. The reason I was picking this stuff off of the track was that, when I saw any stuff on the track, I went to work at removing it; considered it my place. Caddell and I did not go up there to clean track. We were on our way to get our tools. Nobody told me to stop and clean track before I got my tools. * * * When I got there to where this stuff was on the track, I stopped and started to throwing it off. I was at this place about three-quarters of an hour before this fell on Caddell. I did not notice anything that would indicate that this place would fall in. Did not see any sign, or did not notice any. They had timbered right up to the place of this fall. * * * I do not know how many times he (referring to Gray) knocked. I was watching him. I was picking up coal at the same time. I was within a few feet of him. * * * When he sounded, it sounded to me like it was safe and would not fall. You cannot tell always whether it is dangerous or not. Yes; it was dangerous without props. It did sound good. I cannot say whether I thought the place was dangerous without props at the time Mr. Gray and I were there inspecting it. Yes; I think it ought to have been propped. I expect it was dangerous without it. We were propping it before it fell. When Gray was sounding it there by me, it looked to be good, but I could not tell much about it. * * * When a fall occurs on the track, it is to the interest of the company to get it up off of the track as soon as possible, so as not to stop the operation of the cars. It is my opinion that it was my place to help do this. Yes; I was helping there, because I think it was my duty. Yes; John Caddell was doing that. Yes; I understand it was a part of his duty as well as mine to help pick up that stuff. Yes; he was under my supervision and under Mr. Gray’s at the time he was doing this work. Yes; and where Mr. Gray and myself could both see him. Yes; I considered it my duty to do this work when it was needed. Yes; it was my helper’s duty also. Yes; John Cad-dell was actually engaged in helping clean this track at the time he was killed.”
A. L. Daniels, a witness for the appellant, testified: “After we got down in the mine, Mr. Gray or Mr. Warner, one, I could not say which, told us to get this place cleaned up so we could go to hauling coal, and, while we were at work, there one of them hollered, ‘Look out, this place is dangerous!’ And I did not know anything else. I do not know that Caddell said anything down there. I did not see Caddell that morning. * * * This happened so quick that I knew nothing about it until it was on me. It happened m a second or two after somebody hollered ‘Look out!’ [This witness was injured at the same time and by the same fall that caused the death of Caddell.] When I got back from dinner and had gotten to the scales, Bob Cranford was there, and said that Mr. Gray was back there, and to come on back and go to work. I do not remember whether he said Mr. Gray said it was safe or not. My best recollection is that he said that Mr. Warner and Gray said that it was all right, and for us to come back and go to work. Cannot say whether Mr. Gray said it or not. * * * He said the place was all right. * * * John Caddell was there at the time he told us this.”
J. A. Gray, the appellant’s mine boss, testified: “It is hardly ever the case that a whole mine is timbered. Sometimes we find a rotten or faulty roof, and then we timber it. When it commences to slough off, then it should be timbered. When a roof sounds drummy and begins to slough off, then they go to timbering it.” In speaking of the roof at the place where the fall occurred, Gray testified: “It sounded solid, but would keep on flecking off. Was the most peculiar place I ever saw. When a place sounds solid, it does not fleck off, but this place sounded solid and flecked off at the same time. That flecking is usually accompanied by a drum-my sound. I did not know what to think. We then went back out of the mine for dinner.” Again he says: “And there were places in the mine that seemed to need tim-bering worse than that place did. I went to timbering there as soon as Warner reported. When I was tapping and examining this roof, I did not expect it would fall until after I discovered the crack. When I saw the crack and thought the place was going to fall, I hollered for the men to look out, and for everybody to get back. * * * I suppose it had been flecking at the place of the accident some three * or four days. I do not know that I thought about timbering the whole place when I saw this flecking. * * * I did not decide it all needed timbering until the day before the accident. * * * The reason I did not keep on timbering right on up to the accident is because the roof was too low, and we had to wait for it to slough off. That is the only reason. * * * This place was in uncertainty; yes. Was in uncertainty probably three days prior to the accident; noticed it had been falling more than it was in the habit of. I did not get anxious, but got interested, and wanted to see what *846was the matter. Yes; I decided that place needed timbering that day before the accident. Yes; I decided it was dangerous. * * * I did not know at the time whether the place was safe or unsafe. I had not formed a definite -opinion at that time. I knew it was uncertain. I did not warn a man then. I did not know any were there. I told Warner at the top that I was going down ahead of them, and see if the place was sound and all right; that I had examined it that morning and it sounded solid, but was the most peculiar place I had ever seen; and that I was going to make a thorough examination before the men got back to work. I did not 'direct them not to go back to work. * * * I do not know that I told Charley Davis, at the new mine, that, if Watelsky had let me done as I wished, the mine would have been fixed up in better shape, and that Caddell would have been alive to-day. * * * I remember being asked some question like that in Como. Some one in the crowd answered that, if I had had my way, I wouid have had the mine fixed up, and that if Wa-telsky had let me do as I wanted to that ■John Caddell would have been alive to-day, and then turned to me and asked me if that was not true. I said it might be possible. Did not say I had been to Watelsky several times for hands and timber to fix up this mine, or this place. * * * A man who haa only worked in the mines could not tell from looking at a roof that had begun to fleck whether or not it was dangerous. That is sometimes a difficult matter for an experienced man. Must be a man of some experience to know this; must have some knowledge of the formation of the earth, and know how to make the test. * * * Right at this particular place where Caddell was killed it had been flecking, I suppose, about three' or four days. Flecked something like a half a ton I suppose. That was that draw slate I was speaking of. It was an ordinary occurrence for this draw slate to fleck off. Yes; sometimes after this flecks off the blue shale above will stand all right without any props. Yes; we haa stopped timbering close to the place of the accident about a week before the accident. Started up again the afternoon before the accident. * * * We had stopped at this place because it had not fallen out high enough tQ be timbered, and also it did not seem to need it.”
Walter Slusher testified for the appellees: “I remember Mr. Gray coming out of the mine just as I finished dinner. I had already finished eating. I was sitting around the shaft. I remember him saying he had been down and found it all right, he thought. John Caddell was sitting right past me at the time. He was talking to all of us there, I suppose.”
The foregoing testimony establishes the following facts: That at the time Caddell was killed he was at work in the performance of his duty, and at a place where he was expected and known to be; that he had been previously assured by his superior, who was an expert in such business, that the mine roof was safe and that he might proceed with his work, and was directed to do so; that danger of the roof’s falling was not so imminent and threatening -as to justify the conclusion that he was guilty of contributory negligence as a matter of law in exposing himself in the manner hie did.
If these conclusions be correct, then we can see no reason for changing the disposition previously made of the case, and the motion for rehearing is overruled.