from the switch east No. 1 tie. That is the first tie from the long tie where the bar is, counting toward the block. The first tie, No. 1, stuck out 15 inches from the rail; No. 2, 16 inches; No. 3, 134 inches; No. 4, 15 inches; No. 5, 15 inches; No. 6, 14 inches; No. 7, 14 inches. That is as far as I counted them. That brought you to the block. Distance from the bottom of the rail to the ground, measuring on the north side of the rail between the ties, between No. 1 and No. 2, 6 inches; between No. 2 and No. 3, 5 inches; between No. 3 and No. 4, 4 inches; between Nos. 4 and 5, 44 inches; between Nos. 5 and 6, 24 inches; between Nos. 6 and 7 it was level. This level part was opposite the block. I don't remember measuring how much the blocking was below the lower ball of the rail. I put my foot on or in there. I have done it on quite a good many occasions. I did on the first day I was there and on the second, and the conditions were the same each time. I placed myself in a position facing the east and stepped as though I was stepping hastily and aimed my foot at the same time to go in that place and springing forward, and my foot would catch each time between the blocking and the rail."

*

*

According to the testimony of Mr. Betterly and his location of the place where Gibbs stood by the red cross marked by him on plaintiff's Exhibit 1, he stood about opposite the fifth tie from the switch bar. The train was backing past him, and, naturally, he would step in moving with the train. When he stepped in he caught hold of the brake hanger beam, and at once his body straightened out as though his foot was held. Betterly illustrated to the jury the position Gibbs' body assumed, as nearly as he could.

The coroner testified:

"The left shoe was about opposite that block and be tween the rails. No part of his body or clothing was between this blocking and the switch stand. The nearest object to the blocking was his left shoe. The shoe was between the rails of the main line and about opposite of the block. The heel of the left shoe was bruised. The left shoe had been torn off the foot. The foot was bruised from being twisted outward from the external malleolus to the little toe, blueish color. *

* * **

*

*

"Q. And you notice the shoe lace there is almost en"A. That appeared to be cut.

"Q. What is that?

"A. They were all severed.

"Q. At that time?

"A. At that time.

"Q. Well, will you say there was just about as much shoe string left when you saw it as appears here?

*

"A. It looks like that. The legs were about 36 feet from the switch-I mean the crossbar connecting the rails. The body was about 30 feet from the switch, and the shoe about 14 feet. The block was 14 feet and the shoe was right opposite the block. The shoe lay about opposite the block between the rails of the main line and the switch. ✶✶✶ When I speak of the shoe being torn off, I mean it was off, and the shoe was bruised, and that is why the entry was made. The laces appeared just as they are in that shoe now. They appeared to be either torn or cut."

The only reasonable inference from Betterly's testimony is that decedent's foot was caught and held between the north side track rail and the north throw rail. At least, the jury were warranted in drawing such an inference from his testimony. The important question then presented was: Where was the foot caught? The defendant's witness Randall, the engineer of the train in question, testified:

"The danger of getting the feet caught is where the guard rails are or cross-rails. Where a person has to step over the rail running in there to step on a car, if you have to step over a switch rail, there is a chance there of obstruction. There isn't very much danger of getting caught between the ties, although there is a chance for a person to stumble there. * * * If a man went in between those cars to get on the leaders between those Russell cars, he would choose a clear place-a clear footing-because he would have to make a few steps in order to get on."

Betterly's testimony eliminates stumbling from the case, and Randall's testimony would warrant the jury in finding that it was not probable that his foot was caught between the ties. In fact, the whole case indicates that his

foot was caught between the fixed and the movable rail. Gibbs stood some four or five feet west of the west end of the block; his shoe lay about opposite the east end of the block, which was three feet long. Somewhere within this seven or eight feet the foot was caught. Unless it was caught within the four or five feet west of the west end of the block, then it was caught over the block, where Van Auken's experiments clearly demonstrated it would be likely to be caught if Gibbs stepped there. In stepping in he would step with the moving train. According to Randall, a man would take two or three steps. The train was moving four or five miles an hour, and a step or two would take Gibbs to the block. The shoe was a conclusive witness that he had not passed the block before he was caught. The shoe and the foot were potent witnesses that the foot was caught; that Gibbs tore his foot loose from the shoe, bursting the strings, before the following wheel caught his foot; and that the shoe was then forced in about two feet towards the center of the track. The train was moving east. The flanges of the wheels on the north side were against the inside of the north fixed rail. The blocking extended to the south some three inches. The drag of the train, the efforts of Gibbs to release his foot, the flange of the wheel crowding his foot to the south, when the foot came loose, threw his feet to the south, and the flange pushed the shoe in the same direction. The trap was set to catch a man's foot. Van Auken demonstrated that the trap was in good working order. The man's foot had the appearance of having been caught in the trap. His shoe bore plain marks of having been caught in the trap, and, furthermore, the shoe lay beside the trap. It appears to me to be a very reasonable inference from the facts that the foot was caught in the trap. As said at the beginning, this is not a matter of guesswork or speculation at all, but merely the ordinary case upon circumstantial evidence of drawing reasonable inferences from proven facts.

In my opinion, the inference which the jury drew is by

far the most reasonable and probable inference which the facts will admit of, and the jury deal with probabilities and not with certainties.

The evidence was in conflict as to whether the deceased was negligent in trying to mount the car at the particular place chosen by him, and the evidence warrants the conclusion that except for the negligence of the defendant he would have safely boarded the train. I think, therefore, that the court did not err in refusing to instruct a verdict on the ground of contributory negligence.

The other questions raised do not seem to me to present prejudicial error, and in my opinion the judgment should be affirmed.

MOORE C. J.. and BIRD, J., concurred with BLAIR, J.

MINKKINEN v. QUINCY MINING CO.

1. NEW TRIAL-APPEAL AND ERROR-MOTION.

After settling a bill of exceptions, and after issuance of a writ of error from the Supreme Court, the circuit court has no jurisdiction to grant a new trial.

2. APPEAL AND Error-Saving QUESTIONS For Review.

The point that there was a variance between declaration and proofs will not be determined on appeal if it was not presented to the trial court.

3. MASTER AND SERVANT MINES AND MINING

RISK-CONTRIBUTORY NEGLIGENCE.

ASSUMPTION OF

Evidence examined and held, to present questions of fact whether plaintiff assumed the risk of rock falling from a hanging wall under which he was working, or whether he was guilty of negligence barring his recovery.

Error to Houghton; Streeter, J. Submitted December 14, 1911. (Docket No. 80.) Decided March 29, 1912. Rehearing denied June 1, 1912.

Case by Nick Minkkinen against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.

Hanchette & Lawton, for appellant.
O'Brien & Le Gendre, for appellee.

MOORE, C. J. This is a personal injury case. The plaintiff was a trammer, working for defendant company, and was injured by some rock falling upon him while he was scratching down ore upon a soller at the foot of the stope, in order to fill his car. At the close of the testimony on the part of the plaintiff, and again at the close of all the testimony, the defendant moved for a directed verdict. These motions were overruled, and the case was submitted to the jury, which returned a verdict in favor of the plaintiff. Judgment was entered in favor of the plaintiff. The case is brought here by writ of error. The accompanying cut will help to understand the situation.

The first sketch shows the stope with its hanging wall, its foot wall, the stulls in place to receive the ore as it is broken down, the platform called a soller, upon which the ore rests when it is let through the opening, shown in the second sketch, from which platform it is loaded upon the car standing upon the rails, shown in the first sketch and opposite the soller or platform. The stulls, the opening between them, and the platform shown in the second sketch are what the witnesses call a "mill."

The record is to the effect that the vein is taken out between the foot wall and the hanging wall and the hanging wall which is left is a permanent roof, which is supposed to be and is usually kept reasonably safe by barring down any loose pieces of rock which may be loosened by blasting or otherwise. The hanging wall is not blasted.