156 Mass. 13, Railroad Co. v. Pitly, 67 Mass. 255, and other cases. The facts in each of the cases cited are materially different from those in the case at bar. In Gregan v. Marston, supra, chiefly relied on, the employee was killed by the breaking of a rope and the consequent fall of a coal bucket upon him, while he was employed in unloading coal from the hold of a vessel. The evidence showed that after the use of two or three weeks the ropes used to draw up the buckets would become worn and unsafe, and that this fact was apparent and known to the employees, and that the employer had provided an abundance of new ropes, of the proper size and lengths, with which to re-place the worn and unsafe ones, upon notice by the workmen. The court said: "The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls (ropes) against everything save their own negligence or error of judgment. The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another both new and sufficient, from the supply kept on hand," and it was held that the master was not liable. But in that case the court recognized the rule that it is the duty of the master to furnish safe appliances and to keep them safe for use, and the substance for the holding was only that the master was not liable for an injury to the servant caused by the latter's failure to supplant a defective part of an appliance with a new and safe one provided by the master for the purpose, where it is a part of the work of the servant to make the change. In the case at bar, even if the evidence was uncontroverted-and it was not-that the extra bucket was fitted and intended to take the place of any one of the others which should become unfitted or

unsafe for use, still, under the evidence, the buckets and their repair were committed to the care of the engineer, who, in performing that duty, was the representative of the master and a vice-principal, and not the fellow-servant of those who were required to use the buckets which he furnished and sent down to them. His negligence in that regard was therefore the negligence of the master, and not of a fellow-servant. (Monmouth Mining and Manf. Co. v. Erling, 148 Ill. 521; Leonard v. Kinnare, 174 id. 532; Goldie v. Werner, 151 id. 551; Westville Coal Co. v. Schwartz, 177 id. 272.) That the engineer, as to his separate duties of repairing the buckets, was not a fellow-servant of the plaintiff, and that the plaintiff was not guilty of contributory negligence, were facts finally established by the judgments below. There was no error in refusing the instruction to find for the defendants.

It is next said that the court erred in admitting to the jury testimony for the plaintiff over the defendants' objections. It appeared from the evidence that the defendants continued to pay the wages of the plaintiff fourteen weeks after he was injured, although he rendered no service, and on cross-examination of the plaintiff by defendants' counsel he was asked whether the defendants did not want him to go back to work for them, and he replied that they did. On re-direct, plaintiff's counsel, over defendants' objection, was permitted to ask him what was said to him by the defendants when they asked him to go back to work, and the reply was, in substance, that they said that he would have to sign something to the effect that they were not in fault in the matter of his injury. If it was any advantage to the defendants to prove that they asked the plaintiff to return to their service they cannot complain that the court permitted him to testify to what was said between them at the time on that subject and that the offer was upon the condition that he would sign a release. We are unable to discover any error in the ruling of the court.

Error has also been assigned upon the ruling of the court in allowing certain hypothetical questions to be put to and answered by Dr. Farnum, an expert witness produced by the plaintiff. These questions were intended to elicit the fact that it would be difficult to procure a union of the broken bones in a case (as of the plaintiff's) where there was a compound comminuted fracture of the third metacarpal bone and the wound had become infected, and that, where the bones had failed to unite, an operation long after the injury could not be expected to bring good results. The hypothesis was based upon the evidence then before the jury, and the questions, we think, were proper.

We have given the case a careful examination and find no substantial error in the record. The judgment will therefore be affirmed.

Judgment affirmed.

THE WESTERN ANTHRACITE COAL AND COKE COMPANY

v.

ALICE BEAVER et al.

Opinion filed October 24, 1901.

1. APPEALS AND ERRORS—when judgment of Appellate Court is conclusive. If the record contains evidence tending to sustain the verdict in a suit at law, or the findings of the court, if the case is tried without a jury, the Appellate Court's judgment of affirmance settles all controverted questions of fact and cannot be disturbed by the Supreme Court except for errors of law.

2. MINES-contributory negligence no defense to a willful violation of statute. Negligence of a miner which contributed to his injury is no defense to an action against the mine owner for willful failure to provide props and cap-pieces, as required by section 16 of the act relating to miners, as amended in 1887.

3. SAME―miner is the judge of length of timbers to be furnished him. The miner is the one to determine the length and dimensions of the props and cap-pieces he deems necessary, and if he orders props of a certain length the mine owner does not comply with the statute by sending props which have to be spliced or sawed.

Western Anthracite Coal Co. v. Beaver, 95 Ill. App. 95, affirmed.

APPEAL from the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. WILLIAM HARTZELL, Judge, presiding.

WISE & MCNULTY, (PERCY WERNER, of counsel,) for appellant.

M. W. BORDERS, and J. M. HAMILL, for appellee.

Mr. JUSTICE HAND delivered the opinion of the court:

This is an action for damages, brought in the circuit court of Randolph county under the Miners act, by appellees, as the widow and children of Henry Beaver, deceased, to recover for the death of said Henry Beaver while in the employ of the defendant. A jury having been waived, the court decided the issues in favor of appellees and entered judgment against appellant for $4000, which judgment, on appeal, has been affirmed by the Appellate Court for the Fourth District, and a further appeal has been prosecuted to this court.

The count of the declaration upon which the case was tried alleges that the defendant was in the possession and operation of a certain coal mine located in Randolph county, Illinois; that it was the duty of the defendant to keep a supply of timber constantly on hand, of suffi cient length and dimensions, to be used as props and cap-pieces, and to deliver the same as required, with the miner's empty car, so that the workmen might at all times be able to secure said workings for their own safety; that said Henry Beaver was in defendant's employ as a coal miner; that finding props and cap-pieces were needed in his room to prevent rocks, slate, clods, dirt, etc., from falling, on May 11, and prior thereto, and in accordance with the statute, he requested defendant to furnish and deliver to him props and cap-pieces of sufficient length and dimensions so that he might prop

erly secure said working place for his own safety, and that, contrary to the statute, the defendant willfully failed and omitted to deliver to said Beaver props and cap-pieces as requested, of sufficient length and dimensions, with which to prop said room and make his working place safe from danger of falling rocks, slate, etc.; that on said day, while Beaver was at work, and because of the willful failure and omission on the part of the defendant to so furnish and deliver props and cap-pieces of sufficient length and dimensions, as required by the statute, a rock fell upon said Beaver, which caused his death, etc.

At the close of the plaintiff's evidence, and at the close of all the evidence, the appellant moved the court to give judgment in favor of the defendant on the ground that the plaintiffs had failed to prove a cause of action, which the court declined to do, and the defendant excepted to the action of the court in that behalf.

The statute in force at the time Beaver was killed reads as follows: "The owner, agent or operator of every coal mine shall keep a supply of timber constantly on hand of sufficient length and dimensions to be used as props and cap-pieces, and shall deliver the same as required, with the miner's empty car, so that the workmen may at all times be able to properly secure said workings for their own safety." (2 Starr & Cur. Stat. chap. 93, sec. 16, p. 2730.)

The evidence tends to establish that on May 11, 1899, appellant was operating a coal mine; that between ten and eleven o'clock on that day Henry Beaver, while in the employ of the appellant as a coal miner, was killed in said coal mine by a rock falling upon him; that the rock which fell on him was what is called "bastard" rock, being full of "niggerheads," and projected from the corner of the room on the left side, where the "working face," or coal, and the "rib," or side of the room, joined; that it weighed about fifteen hundred pounds, was about seven