#### Gerret Wilkins, Appellee, v. Madison Coal Corporation, Appellant.

(STot to Tbe reported in full.)

Appeal from the Circuit Court of Madison county; the Hon. G-eobse A. Cbow, Judge, presiding. Heard in this court at the March term, 1914.

Reversed and remanded.

Opinion filed July 28, 1914.

Statement of the Case.

Action by Gierret Wilkins against Madison Coal Corporation to recover for personal injuries received by plaintiff on account of a fall of coal from the roof *417of a crosscut in which plaintiff and his buddy were engaged in running a machine used in undercutting coal in defendant’s mine. The declaration charged that the defendant wilfully failed to inspect the roof and to observe its dangerous condition and that the mine examiner within twelve hours previously inspected the place and observed the dangerous roof at said point, and wilfully failed to place a conspicuous mark or sign thereat, and wilfully failed to make a daily record of the conditions as required by statute. A jury was waived and trial had before the judge which resulted in a finding and judgment in favor of plaintiff for $2,999. To reverse the judgment, defendant appeals.

Abstract of the Decision.

1. Mines and minerals, § 176 * —when evidence insufficient to show wilful failure to marie dangerous condition of roof of mine. In an action by a miner to recover for personal injuries received by a fall of coal from the roof of a crosscut in defendant’s mine, where the injury was alleged to have been caused by the wilful failure of the mine examiner to observe the dangerous condition of the roof and place a conspicuous mark thereat, held that a judgment in favor of plaintiff was not sustained by the evidence, it appearing that the mine examiner had sounded the roof and found no loose condition existing in the roof and that thereafter other employees had sounded the roof and found it solid, and there was no evidence to show that the dangerous condition existed at the time the mine examiner inspected it.

2. Mines and minerals, § 86*—liability for dangerous condition of roof of mine where examiner failed to discover defect. A mining *418company is not liable for injuries resulting from the dangerous condition of the roof of its mine merely because the defect existed at the time the mine examiner inspected and he failed to discover it, where there were no physical facts that were visible or that could be ascertained by the means required by statute and there was nothing to indicate a' dangerous condition. ■ ”

*417C. H. Burton, for appellant; John G. Drennan, of counsel.

Webb & Webb, for appellee.

*

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

Mr. Justice McBride

delivered the opinion of the court.