In Error to the Circuit Court of the United States for the Northern District of California.

This is an action by the plaintiff in error to recover damages for personal injuries occasioned by the alleged negligence of the defendant in error. The court directed the jury to find a verdict for the defendant, and plaintiff assigns this direction as error.

The evidence material to be considered upon this question is substantially as follows: In the fall of 1904 a wooden culvert passing through the embankment of defendant’s railroad near a point designated as the “Nacimiento Switch” in San Luis Obispo county, Cal., was burned out. In the early part of December the company determined to replace the burned out wooden culvert with a concrete arch, and R. M. Drake, assistant resident engineer, was detailed to take charge of the work. The necessary material was sent to the switch for use at the culvert. The work was commenced about the 10th or ,12th of December, under charge of R. P. Edgecombe, the gang foreman in the bridge and building department. The work had been in progress 10 or 12 days when plaintiff, who was residing at San Miguel, and another laborer by the name of Braffat, residing at the same place, were informed that they could get work at the culvert. San Miguel is about six miles from the switch. The plaintiff and Braffat were taken to the culvert by a work train on December 22d, and after their arrival they were set to work by the foreman. At that time there was a cut in the embankment under the' rails from 18 to 20 feet'wide, and from 12 to 15 feet deep. Piles had been driven on each side of the cut to support the rails above. The plaintiff and Braffat were sent to the bottom of the culvert to shovel dirt. There is soine conflict in the evidence as to the work that had been done up to this time to secure the banks of the cut, but it is not very material. There is no conflict in the evidence as to the caving of the bank which resulted in the injury to plaintiff.

When the plaintiff gave his testimony in court in February, 1907, he was 23 years of age. He testified that he hud never before worked in cuts or excavations or in making ditches. lie was not told of any danger to be apprehended when he went to work, and he apprehended no danger. He knew nothing about that kind of work. In his testimony he refers to the piles, lmt he says when he entered 1ho excavation or cut there were no timbers or supports alongside either of the embankments. There was nothing in the cut or excavation other than the piles — nothing against the side of either bank. The plaintiff afterward qualified his testimony on cross-examination by saying substantially that there were no timbers, in the wall to his back.

Braffat in his testimony on behalf of the plaintiff, mentions the piles, but says there was nothing to hold up the banks.

Brunskill, another witness on behalf of the plaintiff, who was employed in the cut on December 23d, 24th, and 2<>th, says that on those days there were no limbers upon either side against the embankments.

The foreman, Edgecombe, testified that if was necossary to drive piling and build a temporary trestle in order to carry the trains over; that the trains were in motion going over the work: that they dug an open trench down from the rails about, lo feet wide. At the time of the accident they were down approximately 12 feet below the base of the rails. Before they got down there they had shored everything — had shored the trestle down at a, point four feet below the stringers; shored the banks outside of the line of idles. He testified further that the cave-in occurred from underneath the bottom end of the planking; it occurred at a point about five or six feet above the bottom of the excavation. When the accident occurred he investigated to see how much dirt had come down from the bank, and found tlwi approximately a lump perhaps two feet in length had come down. It fell out from up inside under the end of the planking. He determined the amount, of the earth that was underneath the planking. He had to look up' underneath the planking to see the hole. The material and the bulkheading were still there; they did not fall. The foreman also testified that Paegies, Stukie, and a helper by the name of Guiles did the shoring.

Paogles testified that he put the shoring in and secured the banks. He did it with the assistance of Stukie. He says the shoring extended down to five feet from the bottom of the excavation where the accident hanpened. The sheathing or planking consisted of boards 2 inches thick by 12 inches wide and 5 feet long. There wore five on the side whore the man was hurt, five straight up and down, and two across, and a telegraph pole from that bank to the other one. The telegraph pole was the shore, and the planks that were put up against the sides of the bank itself were called “lagging.” He says this was done five days before the happening of the accident to the plaintiff; that the earth that struck the plaintiff fell from a. point between five and six feet above the bottom of the cut. It came from the end of the shoring, and about five or six feet from where plaintiff was standing. The earth fell from right underneath the planks. It fell right out of the bottom. It came from underneath the edges right close to the last plank. This witness testified that he and another man put in this lagging; that they were the men under the foreman whose business it was to put in the lagging when necessary. They put in all the lagging that they were directed by the foreman to put in.

Stukie testified that planking had been put up three days before the accident by himself, Beagles, and some helpers. He says he told Edgecombe ho thought it needed it, and Edgecombe said: “Yes, pui it up.” At the time of the accident this piling or lagging came between five and six feet from the bottom of the excavation. The lagging was kept in place against the planking by two high planks crosswise of the perpendicular planking and a shore across to the opposite bank. He commenced timbering when they started to excavate, and they timbered as they went down.

\V. A. ITve testified, on behalf of the defendant, that he was a laborer employed by the defendant company, worked under Edgecombe, had been working as a member of that gang for a little over a year; that whenever they would finish the upper portion of a cut they would put lagging on it, and they kept lagging the finished portions of it until they got down to a. point within about five feet of the bottom. It was not finished, but was lagged within five or six feet of the bottom. It was finished so far as their work was concerned.

The testimony of Edgecombe as to whether the timbering had been finished down to the point between five and six feet from the bottom of the cut was as follows: “Mr. Schlesinger: Q. I understand, Mr. Edgecombe, that this place was shored, according to your testimony, from the point marked ‘rails’ to a point within five feet of the bottom of the excavation? A. Between 5 and 6 feet; yes, sir. Q. That is, whenever you finished a portion of it, that portion which was finished, you, shored up; is that right? A. You are talking now about the trestlework? Q. I am talking now about the embankment; did you shore it up as you finished it? A. The embankment was shored up; yes, sir. Q. As you finished it? A. Yes, sir. Q. You did not shore below the six-foot point, or the five-foot point, because it was not finished? A. Not at the time of the accident. Q. But up to the time of the accident it was finished up to within a point of 5 or 6 feet? A. The shoring was complete within a point of 5 or 6 feet at the bottom of the excavation. Q. That is, that part was finished? A. That was all excavated and dug out; yes, sir. Q. That is,, that part was finished and shored up, was it? A. Shored up; yes sir. Q. And finished. That is all.”

The plaintiff had been at work in the bottom of this cut shoveling dirt about 10 or 15 minutes when the south bank of the cut underneath the bottom end of the planking caved in, and a quantity of earth fell on him throwing him to the ground. A second caving of the earth from the same place immediately followed, which fell upon plaintiff’s right leg and broke it, producing a compound comminuted fracture. On the day following the injury plaintiff was removed to the railroad hospital in San Francisco, and remained there for nearly seven months. The next day after arriving at the hospital he was. opez-ated on for the purpose of removing the broken pieces of bone. He underwent three operations izi all while in the hospital. After recovering sufficiently to use the injured leg, it was found to be about half an inch shorter than the other.

This izijury to the, plaintiff is the cause of action against the defendazit. The testimony, as has been stated, is to the effect that the earth which fell upon the plaintiff and injured him came from underneath the bottom end of the planking at a point about five or six feet above the bottozn of the excavation. Upon this testimony the court instructed the jury to find for the defendant, upon the claim made by the defendant that the evidence showed that sufficient and adequate material was furnished the employes; that the material was to be adjusted and put in place by the employes as the work progressed, and as it should be deemed necessary for their own safety to do so; that the place where this work was being carried on and in which the plaintiff was being employed was not such a one as is contemplated by the law requiring that the master shall furnish a safe place for the servant to work in.