Suborich

The plaintiff, after alleging that he was an employee as a laborer in the mine of the defendant, charged that, while he was engaged in assisting in the extraction of ore, another employee was engaged in breaking ore in the mine *700 with a large sledge-hammer about 10 feet away from plaintiff ; that the employee struck ore and -rocks with the hammer in a direction towards plaintiff, “and in a direction necessarily driving pieces of said rock or ore against this plaintiff, as said other employee then and there well knew; that nevertheless said employee negligently and wantonly and with utter disregard for the safety of this plaintiff, then and there struck a piece of rock or ore in the direction aforesaid by said sledge-hammer, and thereby and in that manner did drive a piece of said ore or rock onto the face and right eye of plaintiff, and thereby and in that manner inflicted serious wounds upon the face and right eye of plaintiff.” After denying all negligence, the case was tried before a jury.

The only testimony in support of the averments of negligence came from the plaintiff and the shift boss of the mining company. After testifying that he was a miner employed by the…