selves what they wanted to charge, and she says she was willing to pay whatever they asked. "Q. And that was when you first went there? "A. Yes, sir. "Q. This talk about boarding with Mrs. Notter and paying your board was at the time you left Henry's and went to her house; that is when you talked about it? "A. Yes, she said it was talked and understood. "Q. And that was the time that Mrs. Notter told you you could live there as long as you wanted to? "A. As long as I lived. "Q. Now, you hadn't any other talk with Mrs. Notter about living there as long as you lived after that and before you got the money from the bank, had you; you didn't have any talk about that again, did you? "A. She says no, she didn't have any talk; they didn't talk it over again; but she says she didn't want to stay any longer; they were rough to her." Defendant and her son both testified that there was no conversation or contract entered into at the time of, or immediately before, the payment of the money. We think it clear, from a consideration of the plaintiff's testimony above quoted, and after a careful examination of the entire record, that there is no evidence in the record tending to show that at the time the money was paid any contract was entered into between the plaintiff and the defendant to the effect that the plaintiff should have a room with her daughter, the defendant, for the remainder of her life. However, an arrangement was entered into at the time plaintiff took up her residence with defendant. That arrangement was that plaintiff should pay for her board while living with defendant, and this she did from the moment she entered defendant's house until the day she left, and it was at that time doubtless understood and agreed that plaintiff should spend her remaining days with defendant. Taking the testimony as a whole, and the situation of the parties as disclosed by the record, and giving proper weight to the declaration made by plaintiff in her own handwriting and in a language which could not be read by either her grandson or the notary public who took her acknowledgment thereto, we are convinced that the payment of the $900 by the plaintiff to defendant was a gift inter vivos, or an advancement, made by the mother to her daughter exactly in consonance with the terms of a will she had made a year or two before. That this payment was made for the purpose of forestalling possible complications after her death, we have no doubt. After the plaintiff left the residence of her daughter, the defendant, and fell under the influence of one or others of her children, this suit was launched. We are of opinion that the motion for a directed verdict made at the close of the testimony should have been granted. The judgment is reversed, and a new trial ordered. MCALVAY, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred. MESICH v. TAMARACK MINING CO. - TRAMMERS FEL 1. MASTER AND SERVANT MINES AND MINING LOW-SERVANTS-PERSONAL INJURIES. In an action brought by an employee of a mine known as a trammer, whose work was to shovel out ore or dirt as it is mined and to deposit the same upon cars, for injuries which he sustained by the alleged negligence of another employee, described as a block-holer, whose work required him to break up large masses or blocks of ore and roll or force them down the stopes or inclines to the levels of the mine, where they could be moved, plain tiff assumed the risk of the negligence of such co-employees and was not entitled to recover for the failure of one of them to warn him of impending danger from a piece of rock which was rolled down from the stope.1 2. SAME ASSUMPTION OF RISK. The servant assumes all the usual risks of his employment, among which is the risk that a fellow-servant will sometimes be careless and injuries will result. The master is merely required to be reasonably prudent in choosing servants and in retaining them in his service after unfitness or negligence has disclosed itself or been communicated to him. 3. WARNING SERVANT-NONDELEGABLE DUTIES. Negligence of the servant in failing to give signals to his fellow-employee is not negligence which involved defendant as for failure to perform a nondelegable duty; having engaged a competent block-holder to perform the duties connected with that employment the defendant had discharged its complete duty. Error to Houghton; Cooper, J., presiding. Submitted November 16, 1914. (Docket No. 52.) Decided March 17, 1915. Case by Mike Mesich against the Tamarack Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error. Affirmed. Le Gendre & Driscoll, for appellant. Allen F. Rees (D. L. Robinson and Albert E. Petermann, of counsel), for appellee. STEERE, J. On May 23, 1910, while working as a "trammer" on the thirty-third level of defendant's copper mine in Houghton county, plaintiff was struck and injured by a large rock thrown down the incline of a stope at the foot of which he was shoveling by 1 On the question whether servants in mines are fellow-servants, see note in 50 L. R. A. 437, 461. a block-holer named Reily, working about 30 feet above. Plaintiff claimed that the rock was sent down without warning. This Reily denied, claiming that he gave the customary notice before starting it. That issue of fact becomes immaterial here, and it is to be assumed for the purposes of this inquiry that the jury would have decided it in plaintiff's favor, as a verdict was directed for defendant at the conclusion of plaintiff's testimony on the ground that the block-holer was a fellow-servant of the trammer, and defendant could not be held liable for the negligence of a fellowservant in not giving warning, although it might have been the practice amongst the workmen to do so. The controlling question presented, therefore, is the old and oft-repeated one of vice principal and fellowservant. While the common purpose and result of all activities of employees underground in a mine is to break and get to the surface the metal-bearing rock there found, in a large mine of this nature, with many men engaged, their immediate duties are apportioned, and each assigned to a particular kind of work, generally according to experience, skill, and intelligence. Descriptive names, suggested by their special duties, are used in designating them, such as captains, shift bosses, inspectors, timbermen, miners, barmen, blockholers, and trammers. The miners', block-holers', and trammers' duties are closely connected in the particular that they are directly engaged in getting out the desired ore or rock, reducing it to a condition to be handled, and starting it toward the surface for transportation to the stampmill. Their work is most directly involved here. The miners work along the mineral-bearing vein between the foot and hanging walls, drilling, blasting, and breaking out, or down, the rock, ore, or "dirt," as it is often termed, doing, as their name implies, the actual mining. Occasionally pieces of the material as blasted and broken out by the miners from the solid vein are not all reduced sufficiently fine to be readily handled, and some of the blocks or pieces of rock are so large that they block or clog the holes or openings between timbers where this broken material runs down the incline of a stope, or raise, to the level. The block-holers' duties require them to break up and reduce to safe and convenient size, by blasting or otherwise, such large blocks or pieces of rock. During their hours of duty they go from one level of the mine to another in the territory assigned to them, following up the work of the miners, looking for and breaking up such pieces, and in connection with that work starting them, as well as other large pieces which can be moved without breaking, down the inclines to where the trammers can conveniently handle them, and at times when those duties are performed they pass down dirt or work the material towards the place of loading the cars to facilitate the work of the trammers. The trammers are common laborers who, working chiefly with shovels, load the rock into tram cars and push them out from the stope to where they are attached to cables which haul them to the shaft. In loading the cars they also at times, when conditions require, go up or back into the stope and pass dirt towards the cars. The "stope" in a mine is an excavation made in removing the ore which has been opened up, or made accessible by shafts and drifts or levels. In this mine the levels were about 100 feet apart. Plaintiff was working in an old, untimbered stope on the thirtythird level, connected with No. 5 shaft east of the vein. The place in the stope where he was injured was about 300 feet long, and ran diagonally up to the thirty-second level. Between the upper or hanging wall and lower or foot wall was a distance of 23 or 24 feet. There were three or four upright timbers. about 8 feet apart standing some 3 feet back of the tram track in the drift, but nothing else to prevent |