McRae

Appeal from a judgment for the plaintiff, and from an order denying the defendants’ motion for a new trial The suit is for damages for injuries received by plain tiff while worldng for defendants in the construction of a tunnel for the Southern Pacific Railroad Company on the line between Los Angeles and Ventura counties. The general course of the tunnel is eastward from the portal, or entrance to it. The work had been completed and permanently timbered some distance into the mountain, and for some distance beyond that—variously stated, but which we may call about fifty feet—the tunnel had been completed, with the exception of timbering, down to what may be called the “temporary grade.” Over this there was laid a temporary track, reaching to the end, or “toe,” of what is called by the witnesses the ‘muck pile”—a point distant about eighteen feet from the face of the tunnel—by which is meant the cross-section of the tunnel at the end of the part above described. The precise difference of level between the regular grade and the temporary grade is not stated, but was probably a few inches only; and, in the language of one of the witnesses, this portion of the tunnel had been…