therein from crumbling, caving and falling down on the plaintiff and the servants of defendant, and to duly and properly inspect said mine whereby it might be kept safe; and to furnish plaintiff with a suitable and reasonably safe place in which to perform his work as aforesaid, and not to put him in a place unsafe or surrounded with dangers and perils not fully known and understood and not assumed by the plaintiff. Yet the defendant disregarding its duty as aforesaid, to wit, July 14, 1908, and while plaintiff was so engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extrahazardous danger surrounding him, the said defendant wrongfully and negligently neglected and refused to duly and properly inspect said mine, whereby it might be kept reasonably safe for plaintiff to work, and neglected and refused to provide a reasonably safe place in which plaintiff was required to perform his work as aforesaid, by then and there neglecting and refusing to place 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 rock and clay therein from crumbling, caving and falling down on the plaintiff and injuring him, said plaintiff, and did consign plaintiff to a place not reasonably safe, and which was surrounded with dangers and perils not fully known and understood by plaintiff, and therefore not assumed by plaintiff; and that, therefore, the requiring plaintiff to perform as aforesaid was actionable and tortious wrong and negligence of said defendant toward said plaintiff."

In the second count the employment of the plaintiff is alleged; his inexperience in mining; the fact that he did not understand the situation; that he had no adequate knowledge or conception of the dangers of mining; that defendant informed him that the place was safe; and that there was no danger to the plaintiff. The duty alleged and the breaches are:

"Whereby it became and was the duty of said defendant to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and also inasmuch as plaintiff was inexperienced in such work and did not know of or comprehend the dangers and

perils surrounding him in said work and the said dangers. not being obvious to him and not assumed by him, and furthermore inasmuch as the defendant informed plaintiff that there was no danger and that the place was a safe place to work-to fully and sufficiently warn and inform plaintiff of the surrounding dangers, viz., that said walls, drifts, etc., not being braced, supported or propped, that the overhanging walls and other walls were liable to cave, crumble and fall upon and against the plaintiff, injuring him, and that defendant knew or should have known of such dangers and surroundings. Yet said defendant disregarding its duty, as aforesaid, on, to wit, July 14, 1908, neglected to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and while plaintiff was engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extrahazardous danger surrounding him, the said defendant wrongfully and negligently refused and neglected to warn and inform plaintiff that the place he was consigned to work was not a reasonably safe place for want of braces, props and supports in the drifts, stopes, chambers, walls, etc., of said mine, but that said defendant on, to wit, a week before wrongfully and tortiously informed plaintiff that the said place was safe and all right in which to perform his said work, and that, therefore, the requiring of plaintiff to perform under the circumstances aforesaid was actionable wrong and negligence of said defendant toward said plaintiff."

As the case for the plaintiff was developed, three principal propositions, based upon the testimony for the plaintiff, were, and are now, asserted by defendant as established and as preventing a recovery by the plaintiff. They are, first, that the plaintiff was an independent contractor; second, that the point in the mine at which plaintiff received his injury was within the area disturbed by the mining operations as they were carried on there, and constantly changing or liable to change; third, that Peake was a fellow-servant of plaintiff.

The testimony relied upon to support the first proposition may be said to be undisputed, the effect of it, as defendant contends, being that plaintiff and the men with whom he was working were not under the control of

defendant or its agents with respect either to the manner of doing the work or the results to be obtained. The question was left to the jury, but we are of opinion that the court might properly have instructed the jury that plaintiff was not an independent contractor. It is true the men were to be paid 30 cents a ton for the shale mined by them, to be divided between them, excluding Peake. Their hours for labor were fixed by themselves, unlessand upon this subject we find no testimony-power controlled by defendant was used to hoist loaded cars, in which case it would seem they would be required to adapt their hours of labor to the hours of hoisting. They furnished lights and explosives, or the cost of them, and were generally masters of their time and of the efforts they should make. But as against these facts are those now to be stated: The mine belonged to defendant, which furnished cars, track, and the place to work. An agent of defendant handled and exploded the dynamite. Control of the interior of the mine was with defendant, which could at any time discharge plaintiff and those working with him. Plaintiff was no more an independent contractor than a mason would be who, subject to discharge at any time, lays bricks in a building at an agreed price for a thousand bricks, the bricks, mortar and an assistant being furnished to him, although he may work or not work, or work fast or slow, as he pleases.

As to the second proposition, involving as it does the question of the duty of defendant to furnish a safe place to work, and as to the third proposition, if in view of the plaintiff's position they are material, they (as we shall later on attempt to show) presented questions of fact for the jury. Independently of these propositions and certain objections to testimony which we think present no ground for a reversal of the judgment, it does not appear to be claimed that the case for plaintiff should not have been submitted to the jury. It is not now contended that the case submitted to the jury was not the case made by the plaintiff. There was no motion for a new trial. There

were requests, couched in the general form, that the evidence did not justify a verdict for the plaintiff, but the points made in argument are those which are considered above.

The declaration alleges, in a very general way, that what defendant omitted to do was to inspect and to timber the mine, or to prop and support the roof and walls thereof. These are the essential averments of negligence. We do not find in the record any testimony tending to prove that the mine required timbering or the walls or roof thereof support, or that either precaution was practicable. Besides, plaintiff knew that the mine was not timbered; at least, such knowledge might have been inferred by the jury. What the testimony does tend to prove is that the particular rock or stone which fell was loose, was liable to be jarred or thrown down, and that the mine boss knew it was loose, had been propped or supported in the coal mine, and the prop or props removed in making the shale mine. It does not appear that in any other place the roof or walls required support or that in any other respect the mine was unsafe except as all underground workings may be said to be unsafe. The drift had been opened beyond the point where the rock overhung it before plaintiff began work. It is to be inferred from the testimony that this rock could have been, and should have been, broken down and removed. There is no testimony tending to prove, and the court cannot take judicial notice of the fact, that general inspection of the mine was necessary.

It is therefore evident that the material questions for the jury were (1) whether the particular condition created by the loose rock and the successive explosions rendered the place unsafe, and whether ordinary care demanded that the rock be removed or be supported in place; (2) whether, if it was negligent to leave the rock in place unsupported, it was the negligence of defendant; (3) whether plaintiff was negligent. The testimony which

164 MICH.-82.

was produced made a case very different from the one considered in Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), or the one considered in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266). The drift, at the point where plaintiff was injured, was a permanent passageway, in which plaintiff found rails laid to a point many feet beyond the point where he was injured. So far as appears, it was a safe one except for the loose overhanging rock. Indeed, the work of plaintiff and his fellows did not create the roof of the drift.

as

We are of opinion that the testimony tending to prove, a part of the contract of hiring, the assurance that the mine was a safe place, testimony which was afterwards stricken out, and that tending to prove that plaintiff had no experience in mining, was inadmissible, under the declaration, to show the negligence of defendant, but we hold that its admission did not prejudice defendant. It did not prejudice defendant because, as has been stated, there was no question of the safety of the mine except as connected with the hanging rock, and none of the experience of plaintiff except as affecting his duty to discover the only danger which existed.

Plaintiff introduced some testimony tending to prove that it was a custom, not always observed, for Peake, after an explosion, to go into the drift ahead of the others and look the walls and roof over, and then call the others, and that upon the particular occasion he went into the drift and was followed by plaintiff and the others before they were called. Upon this testimony, and it was not all one way, nor was it very certain, defendant based, in part, the theory of plaintiff's contributory negligence and submitted a request. Upon this subject the court gave the following instruction, which, while not very specific, we regard as favorable to defendant.

"This is the defendant's seventh request: