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

Action by Stephen Bassett against the Rocky Mountain Bell Telephone Company. Judgment for plaintiff, and defendant brings error.

The plaintiff in error was engaged in digging ditches.in the streets of Butte wherein to place conduits for its telephone wires. The ditches were dug to the depth of about 5 or 5½ feet. The defendant in error was an employe of the plaintiff in error. He bad been working in the ditch on Broadway. The foreman of the plaintiff in error directed him to go down to Silver street, four blocks away, together with another employs, who was a second foreman, and to receive directions from the second foreman as to what he was to do. Prior to this time the plaintiff in error had dug a ditc-h in Silver street, and (he earth taken therefrom had been thrown to the side nearest the sidewalk. After digging to a depth variously estimated at from 3 to 4½ feet, that ditch was abandoned on account of a pipe which was found in the way, and a new ditch was dug, parallel with the first and distant therefrom about 3 feet. The dirt from the second ditch was used to fill up the first ditch, and it not only filled it completely, but it left a bank of earth about 1½ feet above the level of the street. When the defendant in error arrived upon the ground, he found the second ditch had been dug to a depth of about 4½ feet, and near it was the bank of earth which covered the first ditch, and a little further away, in the same direction, was the bank of earth which had been taken from the first ditch. There was nothing visible to indicate to bim that the first ditch had been dug. unless it was tbe fact that two parallel banks of earth were distinctly visible on the ground. He testified that he did not know that the first ditch had been dug, and that, if he had known it, he would not have gone to work in the second, that he would have known it was dangerous, and that he would have told the foreman to place props in the ditch before going to work in it. He had been at work in the second ditch about half an hour, when a large mass of the earth between the two ditches caved in upon him. inflicting upon him serious personal injuries. The earth was decomposed granite. and the cause of its caving in was the weight of the earth which had been throwu into the first ditch and piled above it, producing a downward and lateral pressure. To the complaint of the defendant in error, which alleged negligence on the part of the plaintiff in error in not properly cribbing and propping the ditch with timber, in compliance with its duty to exercise reasonable care and diligence in making reasonably safe the place in which the defendant in error was ordered to work, the plaintiff in error denied its negligence. alleged that the defendant in error could have known the character and condition of the ground by the exercise of reasonable care and prudence, and that he assumed the risk, and was also guilty of contributory negligence.