In Error to tlie Circuit Court of the United States for the Southern Division of the District of Washington.

The plaintiff in error was a workman in the employment of the defendant in error, a corporation, which was operating a line of railway in the state of Oregon. The railroad ran through a certain cut bounded upon either side by steep and nearly perpendicular embankments. The plaintiff in error was brought into the cut with some 20 or 30 other men, under the direction of Peter Grant, a foreman, who had the ordinary authority of a section foreman, and was put to work digging out the ditches along the sides of the track and beneath the overhanging banks. While so employed, a rock became dislodged from the side of the cut above him, and fell, striking him on the head, causing a permanent injury, for which he sought damages in the present action. It appeared from the evidence that in the spring, when the ground began to thaw, the ditches of the railroad as It passed through the Blue Mountains became filled with earth and rocks which were dislodged and fell from the sides of the banks. The plaintiff and the gang of men with whom he was working had been for some time engaged in cleaning out ditches and taking rock and dirt therefrom, so that water could run out. It was usual, before beginning work in a cut, to have the banks above scraped so as to dislodge the loose material. On the morning on which the accident occurred such precaution had been taken in the first cut in which the gang had worked. .Tust before noon they moved to a second cut, and were directed by the foreman to go to work cleaning out the ditches, hut no one was first sent up the banks to scrape down the loose rock. The plaintiff himself had been engaged in scrap ing the hanks in the first cut, and he admitted in his testimony that he knew that no such precaution had been taken in the second cut. His explanation of this omission to scrape the banks of the second cut is that the dinner hour was approaching, and they were in a hurry. It appeared further in the evidence that rocks frequently fell from such embankments while the men were at work cleaning out the ditches, and there was testimony that one of the workmen had upon the day prior to the accident quit work on account of the risk of being injured by the falling rocks. Upon the close of the testimony the court, upon the motion of the defendant in error, directed the jury to return a verdict for the defendant, upon the ground that the company was not responsible for the negligence of the foreman of the gang of workmen, and that the plaintiff assumed the risks connected with his employment, and was guilty of contributory negligence.