¶1Assuming that Sullivan was a superintendent for whose negligence the defendant was liable, the evidence does not disclose that • he was negligent. It is recognized in the prevailing opinion that “the burden is l,aid upon the plaintiff of pointing out the particular thing so omitted or done.” The men were at work in a place made dangerous by the necessities of the work in which they were engaged, and after the blasts .it was necessary that -some of the *449employees should go into the heading to prepare for the excavation.. The first thing it was necessary to do was to prepare lights to make the necessary examination to protect the men who were to continue the work, and it was this duty in which Sullivan was engaged at the time of the accident. The roof could not be protected until the men went into the heading to do the work necessary for that purpose. Sullivan himself led the men and was engaged in stringing the lights when the rock fell. It is not contended that Sullivan could have done this work alone. He went in with the men who were engaged in stringing the lights which were necessary before any work either of investigation or protection could be doné and it is neither suggested in the prevailing opinion nor by counsel for the plaintiff how the work could have been done in any way except that adopted by Sullivan which would have avoided the accident. Sullivan, the superintendent, led the men engaged in the work into this dangerous place and so far as this recoi’d discloses he acted with the utmost prudence. There was nothing to suggest that his waiting until the smoke was blown away was called for by the situation as it was known to exist, and the presence of the smoke had nothing to do with the accident. He did not order the men to return to work nor did he expressly order this deceased to accompany him. What he did was to order those' engaged in the preliminary work necessary to make the place safe for the prosecution of the work to accompany him into the tunnel to perform that duty and while engaged in the performance of that duty the accident happened that resulted in the death of both Sullivan and the plaintiff’s intestate.
¶2I, therefore, dissent from the affirmance of this judgment.
¶3Judgment affirmed, with costs.