inspects the place and says it's safe, and is a fellowservant, surely the miners under him were fellowservants, and it is so held in the rehearing of the case on page 469 [of 106 Mich., on page 335 of 64 N. W.]:

""That the failure of the miners or boss to notify the timbermen that the place was in readiness was the negligence of fellow-servants of the plaintiff.'

"I should have read a little further:

"We are satisfied with the proposition enunciated that the failure of the miners or boss to notify the timbermen that the place was in readiness was the negligence of fellow-servants of the plaintiff.'

"Now, right to the very last the court says:

""The following cases confirm us in our opinion that, as an incident or means of excavating the ore, the master has only the duty of furnishing competent men, and furnishing suitable materials for the use of those engaged in the common employment.'

"Now it very plainly appears that the miners were the ones in the opinion the miners were the ones to notify these timbermen when it was time to put in another set of timbers. The miners were negligent and failed to notify the timbermen after there was room. The court expressly says that the miners, in looking after the safety of the trammers in that respect, were fellow-servants.

"Now it has been argued a good deal that this Petaja Case has been modified by other decisions, Hosking against the Cleveland Cliffs, and Danula against the Quincy, and Scendar against the Winona, but in all of those cases distinctions are drawn and there isn't a word that it was the intention of the Supreme Court to modify this Petaja Case and this Petaja Case had been a leading case known to the mining district a number of years. If the Supreme Court intended to modify it, it would have said so, after citing it as the law of Michigan for so many years. I feel very sure there was no intention to modify the law as laid down in that case and in all the cases which were claimed to be under the Petaja Case by which they found there was a question of fact to submit to the jury in the cases I have men

tioned and some others. The Supreme Court saw a distinction between those cases and the Petaja Case, and it was the distinction which permitted the case to go to the jury.

"We have here in this case, the decedent was a trammer. In carrying on this regular work, the miners were mining and he was tramming by loading the rock into the car. He saw, with his fellow workmen, a place that he thought looked dangerous, a large rock which he thought might fall and he went-he didn't go to the shift boss as in the Petaja Case, but went to the miners and complained to them, and the miners gave them assurance of safety, said the rock wouldn't fall. It seems to me if ever two cases were exactly alike in principle, it's this case and the Petaja Case, and believing as I do that the Petaja Case is the law in Michigan now as much as it ever was, I believe it is the duty of the court to direct a verdict in favor of this defendant. I believe this case also comes within the case of Livingstone v. Plate Glass Co. [146 Mich. 236, 109 N. W. 431], but I feel very sure it is covered in its entirety by the Petaja Case. The cases are very similar all the way through, and I do not see any distinguishing features at all, and therefore, gentlemen of the jury, the court will assume the burden of deciding this case and will decide it upon the law as laid down by the Supreme Court of Michigan.

"The court has decided that there is no question of fact to submit to you, but that the defendant_cannot be held liable under the law of this State, and you will therefore return a verdict in favor of the defendant under the law as directed by the court."

Error is also assigned that the verdict and judgment are contrary to and not supported by the evidence, and are contrary to the law. There is, as stated by appellant, but one main question involved, viz.: Did the court err in directing a verdict for the reasons stated in the charge?

It is claimed by appellant that neither the boss nor the miners were intestate's fellow-servants under the evidence in the case. It is urged that under the evi

dence the defendant undertook to protect the trammers against injury from any large rock (too large for the trammers to load in their cars) becoming lodged on the foot wall and afterwards rolling down the stope. While there are some expressions in the testimony that might, upon a casual reading, justify this claim, an examination of the entire testimony of each witness will disclose that no such claim is justified by the evidence. The most that can be said of the duty of the miners, with reference to the large rocks, is that they were to blast such rocks when requested to do so by the trammers. Such request had been made, and the miners had said they would attend to that duty in 15 minutes. The rock was then where it had been for four days. Before the 15 minutes had elapsed, the rock, by some unknown cause, rolled down and did the injury complained of. Under the evidence the blasting of these large rocks was done by the miners for the safety of the trammers, because the latter were not possessed of sufficient ability or training to use explosives.

Counsel for appellant seek to distinguish the case from the Petaja and Livingstone Cases cited by the trial judge in the charge, and urge that the case is ruled by Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951), and kindred cases.

In the Scendar Case loose rock fell from the overhanging wall, and Justice BIRD said:

"The difference between the Petaja Case and the one under consideration lies in the proofs which tend to show that, as regards loose overhanging rock, the defendant relieved the trammers of the necessity of looking out for themselves and took upon itself the duty of making the place safe for them."

We find no such evidence in the instant case, which we think is readily distinguished.

Counsel also cite: Minkkinen v. Mining Co., 169 Mich. 279 (135 N. W. 449). This was also a case of

rock falling from a hanging wall, and under the evidence differs from the instant case, as does also Danula v. Mining Co., 166 Mich. 350 (130 N. W. 604).

After again examining the authorities cited by counsel upon both sides, we are of the opinion that the trial court was justified in directing a verdict for the defendant for the reasons stated. The danger of working below this large rock was apparent, and readily comprehended by the trammers. As Kosovac testified:

"But nobody could see any more than I saw, who went up and looked at it. Miners couldn't see any more than I could see."

Being told by the miners that they would blast at midnight, the trammers continued their work, and the rock fell in 5 minutes after the conversation. The neglect of the miners, if it can be called neglect, not to blast instantly, when requested by the trammers to do so, cannot be charged to the defendant, nor can it be said to have been the proximate cause of the injury. Manifestly, the miners were the fellowservants of the trammers.

In our opinion the case is ruled by the following cases in this court: 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); Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431); Amoe v. Engineering Works, 151 Mich. 212 (114 N. W. 1010); Ritzema v. Brick Co., 152 Mich. 75 (115 N. W. 705); Bauer v. Car & Foundry Co., 132 Mich. 537 (94 N. W. 9); Kaaro v. Mining Co., 178 Mich. 661 (146 N. W. 149); Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699); Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Cribb v. Engineering Works, 167 Mich. 328 (132 N. W. 1020).

Particular attention upon the subject of fellowservant is called to the recent case of Mesich v. Min

ing Co., 184 Mich. 363 (151 N. W. 564). That any assurance by the miners of safe condition, or promise to blast, was not binding on defendant, see Guest v. Illuminating Co., 150 Mich. 438 (114 N. W. 226); Maxwell v. Cement & Lime Co., 157 Mich. 631 (122 N. W. 225).

In Koskell v. Mining Co., supra, the assurance from Johnson (one of the miners) that the place was safe, presented a stronger case for the plaintiff than do the facts in the instant case. Looking after the hanging wall, in that case, was something the trammers could not do. Looking after and handling the broken rocks in the stope, was the trammers' work in the instant case. Furthermore, the conditions of danger surrounding this rock were open and apparent to everyone, especially to the trammers.

The rule of law applicable to this class of cases is that a statement or assurance of safety is not deemed to be given in a representative capacity, unless the person giving it is a vice principal. It cannot, we think, be seriously urged that these miners were vice principals. Many more cases might be cited from this and other jurisdictions, but we deem it unnecessary.

We find no error in the charge of the trial court, and are of the opinion that it was warranted both by the evidence and the law.

The judgment of the circuit court is affirmed.

BROOKE, C. J., and MCALVAY, KUHN, BIRD, MOORE, and STEERE, JJ., concurred. OSTRANDER, J., did not sit.