Cunningham

The defendant in error, who will herein be designated the plaintiff, ip his complaint alleged that he was injured while working as a mucker in the mine of the defendant, that the defendant carelessly drove a stope upwards from a tunnel situated in its mine, and failed and neglected to use ordinary and reasonable care in inspecting the roof or top of said stope, and failed and' neglected to pick or bar down from said roof loose rock and ore therein, and caused the plaintiff to work in said tunnel at the bottom of said stope while the stope was in a dangerous condition, owing to the negligence of the defendant in not properly timbering the same, and in not properly inspecting and examining the same, and in not properly picking or barring down the loose rock at the roof of said stope, by reason whereof an amount of ore and rock fell, causing serious injury to the plaintiff.

It is contended that the court below erred in denying the defendant’s motion, at the close of the testimony for an instructed verdict in its favor, and it is said that the evidence conclusively shows that it. was the duty of the plaintiff, before working in the place where he was injured, to examine the roof of…