The trammers do not attempt to tram it out. It is the custom for men, known as barmen, or for miners, to take down whatever is loose in the hanging wall. The work of stoping out a piece of ground may last for months.

Miners must go up and down under the hanging wall from underneath which the copper rock has been blasted. Trammers must go up in the stope for the purpose of scraping down the rock to the soller or level to be shoveled

into the tram car. The trammers are not given tools to keep this hanging wall safe. They may be required to work under it for months. The evidence shows, also, as will appear more in detail later, that the shift boss also goes around and looks over the hanging to see that it is safe.

Counsel for defendant discuss the assignments of error under the heads of assumption of risk; contributory neg. ligence of plaintiff as a matter of law; variance between the pleadings and proofs; error in denying a motion for new trial because of excessive verdict; errors in the translation of testimony, and other reasons not necessary to further state.

We will take up the last of these groups first. The bill of exceptions was signed November 9, 1910, and a writ of error taken out. The motion for a new trial was made February 1, 1911. This being the situation of the case, the judge very properly held the case was out of his court, and that he had no jurisdiction to dispose of the motion. We, of course, cannot review his action in that regard.

As to the variance between pleadings and proofs, we have searched the record in vain for anything to indi cate that this question was presented to and passed upon by the trial judge. For that reason we decline to consider it.

It is claimed the plaintiff assumed the risk of the conditions as he found them, which resulted in his injury. It is also claimed that he learned what the conditions were, and that, knowing these conditions, his continuing to work was negligence which contributed to his injury, and that for each of these reasons the court should have directed a verdict in favor of defendant, counsel citing, in support of their contention, 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); Ritzema v. Brick Co., 152 Mich. 75 (115 N. W. 705); Lukovski v. Railroad Co., 164 Mich. 361 (129 N. W. 707), and many other cases. It becomes important to consider that part of the testimony

most favorable to plaintiff to decide whether there was a case to be submitted to the jury.

One of the witnesses testified:

"On the day of the injuries to Nick, Nick and I were working together. We were tramming rock on the fiftyfourth level, tramming it out to No. 7 shaft. We had trammed out 15 cars during the day. We got those 15 cars from the drift and cutting out and from the stope also. Two cars I think we took from that stope. I am speaking now of the stope where Nick was afterwards hurt. We got two cars from that stope.

"Q. When did you get those cars?

The

"A. I recollect it being in the forenoon, somewhere around 9 o'clock in the morning. Up to the time we got those cars, the shift boss had not come around and seen us that I know. While we were getting those cars from the stope, we heard rock fall from the hanging wall. We believed it came from the hanging in the stope. We were then shoveling dirt from the soller into the car. soller is the place where the dirt is run down, and from there shoveled to the car. When we got through hauling those fifteen cars of rock out to the shaft, it was 4 o'clock. Then we put on our coats and we sat down, near the shaft. Captain Maunders came there then. I refer to the same shift boss I have spoken of before. I had a talk with Captain Maunders. The captain asked 'How many cars have you filled ?' I told him 15 cars. was too little. We told him that there was no more dirt, He says that and that was a poor place. I might in some way give the conversation in English that I had with the captain. (Witness speaks English.) Captain say, 'How many car you fill? I say, 'Fifteen cars.' Captain say. "That's small number.' He say, 'Go fill one more car.' I say, No more dirt, that place no good." He say, "That place all right. I see today. up.' I told the captain about I see rock fall there. (WitGo fill one more car or else go ness speaks English.) I see that place no good. I see small rock down on hanging.

"Q. Then what did the captain say?

"A. He say, "That place bully good. I see today.' "Q. And he told you to go ahead and go to work there or go up, did he?

A. Yes.

"Q. After that, what did you men do then? "A. Then we went in.

"Q. Well, what stope did you go into?

"A. The inside stope.

"Q. Was that the one the captain referred to?

"A. Yes; all of the rock then had been taken away from the soller already. We went then in the stope to get rock. Nick Minkkinen went with me. We went up from the soller approximately between 15 and 20 feet. I went on the south side of the mill, and Nick went on the north side. I might have been 10 feet or so away from Nick. We were working up there less than half an hour before Nick got hurt, not a full half hour. During that half hour, Nick and I shoveled dirt down into the soller. While we were working there the rock fell down from the hanging, and injured Nick. I saw it just then when it fell down. It was lots of it, and I can't just state how many, but it was a big pile. I don't know that our work in shoveling down there, my work or Nick's work in shoveling the rock into the mill, loosened the rock in any way, but it should not loosen any way because we shoveled from the foot wall. We were shoveling the loose rock that had been blasted down by the miners before. The rock that we were shoveling was copper rock, and this rock that fell was from the hanging wall.

"When Nick was struck with the rock, he fell on the foot. I went to see him, what happened to him. I found him. There wasn't much dirt on him. There were two rocks on him, the hanging rock. Not at first I didn't examine Nick to see how he was hurt. I didn't have time. I was just trying to move him away from that place. I moved him towards the place where I was at that time. Then two miners came over there, and together with them we carried him down, put him on the motor, and carried him out to the shaft. I can't state positively how big a stope that was, how long it was along the level. It might have been 50 feet or more. It might have been more or less. There were miners working up to the top of the stope from the place where Nick and I were working at the time he was hurt. The miners were working 60 or 70 feet. That part of the stope was worked out, and the miners had carried this stope up 60 or 70 feet above that place. The rock that the miners blasted fell down the same level that is now in question; that is, it would run down the foot wall.

"Q. And you men had shoveled out all that ran down there naturally?

"A. Yes; we were put there for the purpose of shoveling down enough to fill this car. The vein there between the foot and the hanging wall, at the place where Nick and I were shoveling down this rock, might have been eight or nine feet, and it might have been a little over. This rock that is blasted by the miners, the copper rock, might fill a portion of the space between the foot and hanging near the stulls, but not very extensively anyhow; so that, if I were standing on the foot there or on the rock that was lying on the foot, this hanging would be eight or nine feet above my head; right straight up it was very much higher, the stope running up, but, if you reached directly across to the hanging wall, it would be just about so you could reach it. I think it might have been eight or nine feet. The miners had not blasted that day in that stope before Nick got hurt. They usually blast once a day, in the evening. That's just before quitting. Quitting time is about 5 o'clock.

"I have had quite a little experience as a trammer. I don't recollect at once how long I was tramming before this injury occurred. I had trammed over a year then. During that time I had worked in the Quincy Mine altogether. In the Quincy mine as tramming is carried on there and was carried on before this injury, it didn't belong to the trammers to look after the safety of the hanging wall. I think it's the captain's work to look after the hanging wall in regard to loose rock, so that rock would not fall. I refer to the shift captain. That would be Captain Maunders.

Q. And do you know what men are employed under him to remove the loose rock from the hanging wall and inspect the wall?

"A. There were such as barmen pinching it down. "Q. Now, did Captain Maunders use to hire and discharge men?

"Q. (Last question read to witness.)

"A. Yes; I know that positively because he is the one took me to work, and I saw him discharging the men." This witness explained that, when the captain said “go ahead and go to work there or go up," he understood it meant to go to work or be discharged.

On the cross-examination he said in part: