#### Patrick Roach, Appellee, v. Willis Coal and Mining Company, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.

Affirmed.

Opinion filed October 9, 1913.

Statement of the Case.

Action by Patrick Roach against the Willis Coal and Mining Company, a corporation, to recover damages *578for injuries sustained by a fall of rock and other substances from the roof of a mine while in the employ of defendant. From a judgment in favor of plaintiff, defendant appeals.

Abstract of the Decision.

1. Mines and minerals, § 182 * —when evidence supports recovery.It appeared from evidence in an action by a mine employe to recover for injuries from a fall of rock and other substances from the roof of his working room that two days prior to the fall a piece of white top was discovered; that it was a treacherous substance and was liable to fall without warning; that it appeared to be solid; that it had been examined and the room marked with date of visit but no danger mark made, and that demand had been made for cross-bars. The defense contradicted this evidence in its material aspects. Held, a verdict for plaintiff would be sustained.

2. Instructions, § 23 * —when proper in not requiring all counts to be proved. An instruction in a personal injury case that the plaintiff is not required by law to prove all the counts of his declaration, but it is sufficient if he proved one or more of the same as alleged therein by a preponderance of evidence, is not subject to an interpretation as permitting recovery if plaintiff proved one or two things in one or more of the various counts.

3. Mines and minerals, § 191 * —when instruction on contributory negligence is proper. Where in an action under the Mining Act of 1911, J. & A. j]i 7475 et seq., there is evidence upon the question of contributory negligence, an instruction that contributory negligence is not a legal defense against a wilful violation of the statute is properly given.

4. Mines and minerals, § 136 * —when right of action not affected by repeal of statute. . Where the Mining Act was repealed and a new act (J. & A., HIT 7475 et seq.) in relation to the same subject enacted after a miner was injured but prior to the trial of his case, his right to maintain his action under the law in existence at the time he was injured is fully preserved by R. S. c. 131, § 4, J. & A. 1 11105.

C. E. Pope, for appellant.

Webb & Webb, for appellee.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Higbee

delivered the opinion of the court.