#### James C. Kennedy, Administrator, Appellee, v. Chicago and Carterville Coal Company, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Williamson county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the March term, 1914.

Reversed with finding of fact.

Opinion filed July 28, 1914.

Statement of the Case.

Action by James C. Kennedy, administrator of the estate of John S. Kennedy, deceased, against the Chicago and Carterville Coal Company to recover damages for the death of plaintiff’s intestate alleged to have resulted from the fall of slate and rock from the roof of the defendant’s mine while deceased was assisting other servants in taking down a certain low portion of the roof. The jury returned a verdict in favor of plaintiff for three thousand dollars. To reverse the "judgment entered on the verdict, defendant appeals.

This case has been tried twice and submitted to two juries upon the same declaration, the jury on each trial returning a verdict in favor of plaintiff for three thousand dollars.

This is the second appeal to the Appellate Court by the appellant. The opinion on the former appeal appears in 180 Ill. App. 42, and the statement of facts as appears in that opinion, and also the opinion is adopted by the Appellate Court on this appeal, the evidence *356contained in the record of both appeals being the same so far as the issues are concerned. As to the points decided in the opinion rendered on the former appeal, see that opinion.

Abstract of the Decision.

1. Mines and minees# § 122 * —when miner assumes risTc of dangerous condition of roof of mine. In an action against a mining company to recover for the death of plaintiffs intestate alleged to have been caused by the fall of slate and rock from defendant’s mine while he was obeying a negligent order of defendant’s foreman to assist in taking down a portion of the roof, held that a verdict for plaintiff was not sustained by the evidence, it appearing that the deceased was an experienced miner competent to perform any kind of dangerous work, that the condition of the roof was as well known to him as the defendant and that the order given was a general order and not a specific order to do the work in any particular manner.

2. Appeal and ebbob, § 1810*—when judgment may he reversed. The Appellate Court will reverse a judgment based on a verdict of a jury, where it appears that the judgment is clearly against the manifest weight of the evidence, that the facts in the case will never appear different and that another trial would serve no good purpose.

Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.

Neely, Gallimore, Cook & Potter, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Harris

delivered the opinion of the court.