MADISON COAL CORPORATION v. STULLKEN, 228 F. 307

KOHLSAAT, Circuit Judge (after stating the facts as above). The jury having found the defendant guilty of negligence as charged in both of the counts of the declaration, it remains only for-the court to determine from the record whether there was evidence produced sufficient to sustain the verdict. It is not our duty to weigh the evidence. That is for the jury. Express Co. v. Ware, 20 Wall. 545, 22 L. Ed. 422; N. Y. L. E. & W. R. R. Co. v. Estill Leonard, 147 U. S. 617, 13 Sup. Ct. 444, 37 L. Ed. 292; Dower v. Richards, 151 U. S. 658-663, 14 Sup. Ct. 452, 38 L. Ed. 305.

It is clear from the evidence that the room 5 was inspected by Inspector Murray on the night preceding the accident and marked as aforesaid. There is no evidence to the contrary, while the evidence that such inspection was had is clear and convincing. There was no attempt to examine the roof or walls between the shots, nor. any evidence as to the effect thereon of the first shot. Indeed, the room seems to have been too full of smoke to have made possible any inspection by decedent or his son. The statute only required the owner to have the mine inspected on the preceding evening.

There is nothing to show what changes took place between the time of inspection and the time of the accident. The first shot may have loosened the mass. There was no visible sign of the dangerous condition. In Wilkins v. Madison Coal Corporation, abstracted in 188 Ill. App. 416, decided July 28, 1914, by the Appellate Court of the Fourth District of Illinois, it is said: “It is contended by counsel for appellee that d. dangerous condition did in fact exist, and the mere fact that the examiner did not ascertain it would not excuse appellant from liability.

This is probably true as a legal proposition, if such physical facts were disclosed as ought to have caused the mine examiner to see the danger, and that in passing upon the dangerous condition his judgment was at fault and failed to appreciate the danger that the physical facts indicated.

We do not understand that, if there are no physical facts indicating a dangerous or unsafe condition, the appellant could be ma!de liable simply because it afterwards turned out that a latent danger, not discoverable, really existed and an injury resulted therefrom.” In the present case, the inspection having been made in accordance with the statute, the burden was on plaintiff to show that in fact the roof in question was defective and that such defect was discoverable to one using due care and diligence.

Practically the only question presented is: Was the roof of the mine in a safe condition when the examiner had finished testing the same, or, if not, was the defect such, at the place where the mass fell, that it could, by the use of due care and diligence on the part of the examiner, have been detected? Certainly the facts of the fall of the slate and the consequent death of decedent do not make out a case of negligence.

Granting that the evidence is sufficient to show that on the next morning, and approximately 12 hours after the inspection, the roof at the place where the slate, etc., fell down, “sounded a little loose” to Albert, the time intervening the inspection and the testing by.decedent is not accounted for either by any fact evidence or by testimony of experts (see Walsh v. W. P. Rend Collieries Co., infra, at this terrni) to the effect that the conditions existing on the morning of the accident would or would not indicate that there was a patent defect -when the examiner made his examination the previous evening.

And the jury cannot substitute for evidence a conjecture or a “retrospective presumption.” Keller v. United States, 213 U. S. 138, 29 Sup. Ct. 470, 53 L. Ed. 737, 16 Ann. Cas. 1066. If the roof had become dangerous after inspection, as may have been the case, so far as the evidence discloses, then it became the duty of decedent to have discovered the danger and to have protected himself from accident thereby. He was a miner of 32 years’ standing, and must be presumed to have appreciated the danger of a place in the roof which sounded loose.

We can conceive of no reasonable method defendant could have adopted to secure the decedent against accident better calculated to attain that end than that which was provided in the present case. Nor are we able to discover from the record any negligence on its

part in the premises. Therefore we are constrained to hold that both the general and the special verdicts are unsupported by the evidence. The judgment of the District Court is reversed, with direction to grant a new trial.