#### Western Coal & Mining Company v. Nichols.

Opinion delivered March 23, 1925.

MASTER AND SERVANT-SAFE PLACE TO WORK — EVIDENCE.—In cLTl action by a miner for injuries from falling rock where the complaint had been amended by striking out the allegation that the master had negligently failed to inake the miner’s place of work safe, it,was not error to exclude testimony that .it was the miner’s duty to make his place of work safe.

Master and servant — duty of servant to make place of WORK ‘ sáfe. — Where the conditions under which a servant is working are constantly changing, so that the peril 'of the work depends on the manner in which the work is done, it is the servant’s duty to make the working place safe, and no duty in that regard rests on the master.

Master and servant — safe place to work — jury question.— In an action by a miner for injuries .caused from falling rock, evidence that the miner, after blasting had brought down a large quantity of rock, asked for another room in which to *347work but was assured by the mine foreman that, the room was safe, held to make it a question for the jury whether it ,was. the miner’s duty tp make the place safe while he was removing ■ the rock or Whether he had a right tó rely on thie foreman’s" judgment. ’

4. Appeal and error — instructions not" complained of. — Where -the instructions given by the court are not complained of, it will be conclusively presumed that the issues were submitted under - j instructions which correctly declared the law.

B... Master and servant — safe place to work — evidence.—In an •action by a miner for injuries from falling rock where the complaint had been amended by striking out the allegation as to the master’s negligence in failing to furnish a safe place to works, and sought a recovery solely ón the ground that the forerpan assured plaintiff that the room in which plaintiff was injured was safe, it .was not error tp .exclude testimony that, plaintiff Was not careful in using sufficient props 'to" make the room safe.

6". Appeal «and error — harmless error — discretion of court.— As the order of admission of testimony is largely "within the trial' court’s discretiop, permitting a witness to be called after the" instructions have been read to the jury, was not prejudicial where no abuse of discretion is shown.. ;

Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;

affirmed.

Thomas B. Pryor and Vincent M. Miles, for appellant. ^

Evans é Evans, for appellee.

Smith, J.

Appellee alleged, for his .cause of action, that on the ,18th day of January, -1921, .he was in the" employ of , appellant in Mine No. 6, near Denning,: Arkansas, and that ,he was injured 'by a fall of rock. In the original complaint a recovery was asked on two grounds; (1), negligence on the part of the defendant in failing to furnish appellee with a safe place in which to work; (2), that, after an inspection of appellee’s place of work by appellant’s, mine foreman, appellee was assured that" thp. place was safe, and, relying upon this. assurance, appellee,'continued to work, when the place was:not safe, and;' while; so working under this assurance, a rockfell on' appellee and injured him.

*348Appellee was severely injured, and there is no complaint, that the verdict in his favor was for an excessive amount. It is insisted, however, for the reversal of the judgment, that, under the undisputed testimony, appellant was not liable for the injury to appellee, and that the court erred- in. admitting and in excluding certain testimony.

During the progress of the- trial appellee asked and was perfnittéd to strike from his complaint the allegation in: regard ;‘td the negligence of appellant in failing to furnish appellee a- safe place in which to work, and. he therefore, predicated liability solely on the remaining allegation of'- the complaint, that appellee had been assured that the place was -safe, when such'was not the fact.'

Appellee was an experienced miner, and admitted that^ while engaged in. mining coal, it was hyj duty to make his own place safe. Appellant offered the testimony of other experienced miners ■ to the effect that no one'would know better than the miner engaged in mining coal whether the place had become unsafe, and that it was; the .miner’s duty to make it safe. This testimony was excluded, and this action of the court is assigned as error.

n iWe think there was no error in this action of the court, for the reason that, at the time this testimony was offered, the complaint had been amended by striking out the-allegation that appellant had negligently failed to make appellee’s place safe, and appellee had admitted that "this was the- duty of the miner. The excluded testimony related to a cause of action which had been stricken from the complaint, and would have tended to prove a fact about which'no question was presented.

; Appellee' had placed the shots of dynamite in the room- in which he had been working, and he only had worked in this room after it had been turned off the entry." "The last shot' fired by appellee had brought down- a quantity-of -rock, after which appellee asked that he be given- another room in which to-work. Thereafter, according to the testimony of appellee and his son, Bob- - *349bitty. who.¡ was the-minefoxeman, went into the. room and; assured . appellee that; it was .sale.'. Bobbitt denied that: he’had made , ahy inspection, of: the room .or had given any assurance of its safety, but, on the contrary, testified, that, .when he saw, its; condition, he directed appellee to-, place three props under the roof of the room,, and further directed where the props should be placed, and he ordered onaof theprops to be placed at the part of the roof from which the rock fell which injured appellee. ;

>, Appellee testified.that he called Bobbitt’s attention to the quantity- of rock which had fallen and the time which would be., required to. remove it, and it was then that he was assured that thé place was safe, and appellee was. directed do remove the . rock, and was promised pay - of $7 per day while so engaged. While mining coal-appellee was not paid by the day. His pay depended; on the quantify of coal-mined by him. Appellee-admitted that. Bobbitt told-him to place props .under the roof, but:he testified that this could not be done until the rock had .beeá; removed.. Appellee, was engaged in bursting, the rock which had fallen on the floor with a hammer^ and. he'testified that it was necessary to do this in Order that he might handle the rock, and that it was necessary to remove these broken, pieces of rock to prepare the floor , for placing the props, and that he was preparing to place ¡the- props, as he had been directed to do, as soon as the rock could be removed, and, after 'being so engaged-for about twenty minutes to half an hour, the rock fell from the. roof of the ¡room and injured him.

The;,instructions:are not set out, and no complaint is made that they did not correctly declare the law. The complaint is that there was no question for the jury to pass upon. ; - • ' ‘

- vW© are,,unwilling to say, as a matter of law, that there"was no.question for the jury. Appellee was not-engaged in .pulling dawn eoal at the time of his injury/. The'Work he was. doing > was that of -.removing .fallen rock.- - This was not. Work, according to the testimony in: appellee ?S" behalf, -Which ,-changed the character of the1 *350place as the work progressed and thereby delegated to appellee the duty of making his place safe as the work progressed. Appellee was put-to a work for which he was to he paid by the day, and this work did not involve changes in the conditions under which he was to work. There was no hanging rock or coal to be inspected or' removed, but appellee’s labor was to be performed in the removal of rock which had already fallen, and he was so employed when he was injured.

' -This court has many times recognized and given effect to the rule that, when the' conditions under which the servant is put to work are constantly changing, so that the peril of the work depends on the manner in which the work is done, it is the servant’s duty to make-the working place safe, and no duty in that regard rests upon’ the master. -

.But, as we have said, the actual work of mining the coal-had ceased, and we cannot Say, as a matter of law, that appellee was engaged'in a work in which he did not have the right, in a measure at least, to rely on the judgment of the foreman as to its safety.

There was a question for the jury whether the hazard. of the work so changed as it progressed that it was appel-lee’s duty to make the place safe, and, as the instructions are not complained of, it will be conclusively presumed that this question was submitted under instructions which correctly declared the law.

' ' If' it be said that the undisputed' testimony shows that Bobbitt had ordered appellee to place props under the roof, it may be answered that appellee testified that he-was preparing to do this, but it was first necessary to remove the fallen rock, and that he was injured before he could obey this order in the usual and ordinary way, and.'we must assume that this question-of fact was properly submitted to the jury. It-may also be said that appellee testified that the order to put up the props was not -given to support the roof 'but to keep the gob back; and that-this work wtas called “gobbing,” which meant to' throw the rock- undér the timbers off the' right-of-way *351so the 'cars loaded with coal could páss, and 'that,' before appellee had cleaned up the' fallen róok, so that' he 'Could put in. the three props to keep the gob back, the-’roOf fell in and injured him;

Error is assigned in the refusal of the court to permit appellant to prove by miners who worked in the mine where appellee was injured that appellee.was-not careful in using sufficient props to make’ the room in which he worked safe; But, at the time this testimony was offered, the complaint had been amended so;. that appellee was seeking to recover on the.ground.only,that Bobbitt had inspected- the'place-and examinedi.the-roof ■ and had assured appellee'that the room5 was. safe; for the purpose' of doing the work Which appellee hád been ordered to do, so we think there was no error in excluding, this testimony. ; ' -

In his direct examination'as a witness' in behalf of appellant, Bobbitt was asked if he had told-appellee this room was safe, and he answered tb’at he had never told appellee or any other miner any such thing '; After ¡both sides had rested and. the court had.instructed the. jury, appellee asked tp be allowed to, .call Simon Phillips,to the stand. Appellant objected to this being done, and saved an exception to the action of the court in ■ permitting Phillips to he called'as a witness.' Phillips was asked if he had ever heard Bobbitt say to Other men that their,places Were safe, and he answered that he had — that Bobfbjti had made that statement to him on one.occasion..

There appears to have been no objection to the testimony itself, blit the objection related to the time of its admission. The objection was1 made when- permission was given tp call the witness, and it is this, action of the court which we review. • ...

This court has many times decided that' the trial court has a wide discretion in the control of the Order of the admission of testimony,, and. that á reyersái would be ordered only .where’ an abuse of this, discretion was shown, and no showing i&’made here that there was any *352.abuse of this discretion jn permitting the witness Phillips to be called after, the instructions had been read to:-th.e jury.. ' ■ ■.- v; • iL • :iw

No prejudicial error appears,- so the -■ judgment^ js affirmed.