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secure a proper deed from her and to pay over to her the value of the matured stock. It is sufficient to say that the contract was fully performed by the assignee of the vendee, who has not yet secured a conveyance, and that the money for the matured stock is awaiting, and has since September 17, 1908, awaited, the execution and delivery of the deed. Under the circumstances, which have, perhaps, been set out with unnecessary particularity, we find no reason for refusing to affirm the decree of the court below. It is not claimed that complainants were parties to any false representations concerning the stock. Defendant Spitzer is a nonresident of the State. Equitable considerations do not demand that the bill be dismissed and complainants be remitted to an action at law for their damages for breach of the contract. Indeed, we are not asked to grant such relief. We know of no reasonable theory which will support a decree which, while requiring that a deed shall be executed and delivered, imposes terms upon complainants.

We therefore affirm the decree, with costs to complainants.

BIRD, HOOKER, BLAIR, and STONE, JJ., concurred.



A laborer working in a mine, subject to discharge at any time by the proprietor, receiving payment for removing shale and rock, by the ton, fixing his own hours of labor, and providing certain of the tools and materials for carrying on the work, is a servant, not an independent contractor.1

1 As to who is deemed to be an independent contractor, see note in 65 L. R. A. 447,

2. MINES AND MINING-EVIDENCE-JUDICIAL NOTICE. The court cannot take judicial notice that general inspection of a mine is necessary.

3. SAME-SAFE PLACE-SUPPORTING AND TIMBERING DRIFTS. It was a question for the jury whether defendant used reasonable care in providing its miners with a safe place to work, where it appeared that the operations were carried on in an old coal mine, from which the timbering was removed as operations advanced; that blasting was being done in the part of the mine in which plaintiff worked; that the mining boss knew certain rock and material in the roof were loose and liable to be jarred down, but had taken no precautions to prevent it, and that the materials fell and injured plaintiff while he was working in a part of the mine that was used as a permanent passageway.

4. SAME.

Whether ordinary care required that the rock be removed or supported in its place, whether the alleged negligence was attributable to defendant, and whether plaintiff was negligent, were questions of fact.


While evidence that the agent of defendant advised plaintiff, when he went to work, that the mine was a safe one, and that plaintiff had had no previous experience in a mine, was incompetent to prove the defendant's negligence, its admission did not prejudice defendant, since the only question of want of safety, under pleadings and evidence, related to the overhanging loose rock, and since plaintiff's inexperience was only in question as affecting his contributory negligence.


In the absence of testimony tending to show that the mine boss was accustomed to examine the roof of the drift after each blast, except in the immediate vicinity of the explosion, defendant could not complain of the court's instructions to the jury that if plaintiff followed the mine boss into the drift before the latter had time to make such examination, he was guilty of contributory negligence, the plaintiff receiving his injuries at some distance from the usual point of inspection.


That instructions to the jury on the question of damages were of a general character, does not require the reversal of the case, if they were correct and no requests for more specific instructions were presented.

Error to Shiawassee; Miner, J. Submitted January 5, 1911. (Docket No. 25.) Decided February 1, 1911.

Case by William Lewis against the Detroit Vitrified Brick Company for personal injuries. Judgment for plaintiff; defendant brings error. Affirmed.

Odell Chapman, for appellant.

George E. Pardee and A. L. Chandler, for appellee.

OSTRANDER, C. J. No testimony was introduced on the part of defendant. It is certified that the record contains the substance of all the testimony given upon the trial. In neither brief is there a statement of what the testimony for the plaintiff tends to prove. From such statements as the briefs contain, and from the record, we learn that the testimony for the plaintiff tends to prove that a part of the business of defendant is the mining of shale, or clay. The property in which the deposit of shale is found was formerly operated as a coal mine. The deposit of shale is upon a lower level than the deposit of coal. The shaft of the mine is some 50 feet in depth, ending in an entry or gallery some hundred feet or more in length, which runs north and south. On the west side of this gallery, drifts have been run into the shale, which is removed by first drilling into the face of the deposit, exploding dynamite, and, as the shale is torn down by the force of the explosion, and by picks and shovels, it is loaded in cars running upon tracks, pushed out to the main gallery, and hoisted to the surface. The drift in which plaintiff received his injury is about 12 feet wide, the deposit of shale about 17 feet in depth, and directly over the drift is a tunnel made in earlier days in pursuing a seam of coal, so that the roof of the drift is 21 or 22 feet above the bottom of the drift, and is in fact the roof of the tunnel made when the coal was taken out. In the operations in this drift, the shale was removed at the rate of about a foot a day. In the mining of coal, the roof of the

mine or tunnel had been to some extent braced or propped. In drifting into the shale, when these props were reached, they were taken out and either thrown to one side or used to make ties upon which to lay the rails for the tram cars. The shale mine itself was an untimbered mine.

The plaintiff, a man about 38 years of age, who had no experience in mining, applied at Flint to a Mr. Cook to obtain employment in the mine. Later, plaintiff was taken by Cook, or went with Cook, to the mine, and was there introduced to Mr. Peake, the mine boss, with the statement that he (Cook) had charge of things above ground and Peake had charge of things below ground. In the conversation it was stated there was employment for plaintiff at $2.50 a day or 30 cents a ton, and Peake, with the plaintiff and another, went down into the mine. The mine was wet, and wholly unlighted except by the oil lamps which the miners carried on their caps. Just what plaintiff was able to see upon this visit, or what investigation, if any, he made, is not very clear. Later, he went to work, at first at shoveling under the direction of the mine boss, and was afterwards given a place in the drift which has been described, and where he understood that he was working by the ton and not by the day. There were two other men at work in this drift, one of whom drilled, and the others, including plaintiff, loaded the shale and pushed the car out and in. The explosive was handled by Peake and each shot was fired by him. Plaintiff knew the character of dynamite and the effect produced by exploding it. When a shot was ready to be fired, the men left the mine, descending again after the explosion, when it was the practice for Peake to go ahead into the drift and make some examination of the condition of the walls and roof to see whether they were safe. Plaintiff had worked one day in this drift and had begun work the second day, which was July 14, 1908. He had gone to the surface with the others, a shot had been exploded, and he, with Peake and his companions, had again gone down into the mine. Peake was up on the breast of the drift making

some examination. Plaintiff and one other were some 20 or 30 feet back from the end of the drift, loading a car, when a rock weighing a ton or more fell from the roof of the old mine, smashing the car, pinned plaintiff to the bottom of the drift, and badly injured him. His companion was also struck, but managed to avoid being crushed. Plaintiff also introduced testimony tending to show that he was assured by Peake before beginning work that the mine was a safe mine; that the rock which fell upon him was loose and was known to be loose by Peake and by others; that the attention of Peake had been directed to it by some of the men who had worked in the drift before plaintiff worked there; that in the coal mine this rock had been supported by props which had been removed; that when plaintiff began work in this drift it had been carried to a point considerably beyond that in which the rock overhung the drift; that he had no notice or knowledge of the condition of the roof, and that with the lights that were carried and with his experience it is improbable that he would have discovered or could have understood there was danger to be apprehended from the falling of this rock. The testimony with respect to the assurance that the mine was a safe mine was later stricken out.

The declaration of the plaintiff contains two counts. In the first count is alleged by way of inducement the ownership and operation of the mine; that explosives were used; that plaintiff was at work under the direction and charge of defendant through its boss or foreman; that the walls of the mine were not timbered, braced up, or supported in any way. The duty of defendant and the breaches thereof which are alleged are:

"Whereby it became and was the duty of said defendant to put in braces, timbers and supports in said roof, drifts, stopes, crosscuts and chambers of said mine, and to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, good and proper means to prevent the walls and the clay and rock

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