Plaintiff was not entitled to recover under the second count. Under any rational construction of the contract between defendant and the state defendants' mining engineer was not charged with any duty of inspecting the mines during the progress of mining operations for the purpose of preventing or remedying dangerous conditions of entries and roofs arising from time to time from the operations of the miners in removing the coal. Plaintiff's injury was unquestionably due to the failure of the state's servants expressly charged with that duty to discover the dangerous condition of the overhanging rock, resulting from the removal by mining of the supporting coal, and to suitably prop it as the work progressed. Ephemeral conditions thus resulting were, of course and of necessity, left to the foreman and bosses provided by the state, both for detection and correction, and with them the engineer had nothing whatever to do. Nor does it in any wise appear that the engineer was guilty of any want of skill or care in the plans, specifications, or directions furnished by him to the state's bosses who were in charge of the mining, by reason of which the mine was made unsafe for plaintiff to work in.
Under the fourth count plaintiff could recover, if at all, only upon proof that it was the duty of defendants' fire boss, Davis, to examine the entries for loose or dangerous rock, and to warn plaintiff of its presence. The undisputed evidence is that the only duty of the fire boss was to inspect for the presence of explosive gas, and post or make verbal warnings of its presence, and to look out for proper ventilation. He had no duty to perform with respect to loose rock, or other conditions of the mine. It is true that plaintiff stated that on one occasion Davis wrote on a rock a warning to Russell, the state's mine foreman, to keep his men out of a room because it was falling in. But this gratuitous act has no tendency to contradict the other evidence, nor to show that Davis, with the knowledge of defendant, had undertaken to discharge that duty, and that the miners relied on him to do so. What Davis in fact regularly did is described by plaintiff, viz.:
"If it was not all right, he would say, 'Keep out,' or 'Brush out,' if there was a little gas."
And plaintiff expressly states that the pit bosses employed by the state inspected the roof for loose rock, and looked after and directed the setting of timbers for support.
Under the evidence before the court, the trial judge could not do otherwise than give the general affirmative charge for defendant as requested.
No other error being assigned for reversal, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.