In Error to the District Court of the United States for the Northern Division of the Western District of Washington; George Don-worth, Judge.

Action by John P. Johnson against the Katalla Company. Judgment for plaintiff, and defendant brings error.

This is an action for damages for personal injuries received by the plaintiff while employed as a laborer on the construction work of the Copper River & Northwestern Railroad, near Copper river, Alaska, in which the defendant company was engaged. Plaintiff’s injuries were caused by the premature explosion of dynamite furnished by the defendant.

It is alleged in the complaint that, the defendant negligently and carelessly furnished the men working with the plaintiff and in his immediate neighborhood dapgerous and unsafe, defective, and extrahazardous dynamite for use by them in blasting the rock in a tunnel in which they were working; that the dynamite furnished was more than two years old, and by reason thereof unsafe to use and liable to explode prematurely, though' handled carefully; that the dynamite furnished by the defendant had further been exposed to the air, wind, rain, snow, heat, and cold before it was given to the men for use, thereby rendering it extrahazardous, unsafe to úse, and liable to explode, though handled carefully; that the age of said dynamite and its exposure to the elements and its extrahazardous condition by reason thereof were well known to the defendant and unknown to the plaintiff and the men using the dynamite, and to whom it was furnished by the defendant; that the defendant negligently and carelessly failed to inform plaintiff and the men using said dynamite of the extradangerous condition of the same; that while the men working with the plaintiff were loading a hole in the rock with the dynamite so furnished by the defendant, in a proper and careful manner, the dynamite exploded prematurely by reason of its extradangerous, unsafe condition, and -without warning and near the place where the plaintiff was working, causing the injuries received by the plaintiff ; that the force of the explosion caused a large rock to fall on the plaintiff, by which he was injured, cutting his head, fracturing several ribs, and crushing his right foot; that by reason of these injuries plaintiff had been unable to earn any money or do any work, and, it is alleged, would remain a cripple and unable to do any -work the remainder of his life. The defendant’s answer put in issue the material allegations of the complaint.

The evidence on behalf of the plaintiff tended to establish the allegations of the complaint, and at the conclusion of the trial defendant moved the court to direct a verdict of the jury in favor of the defendant, upon the ground that the testimony was insufficient to entitle plaintiff to recover. This motion was denied. The jury returned a verdict in favor of the plaintiff for $7,500; but on motion of the defendant for a new trial the court held that the evidence did not sustain a verdict for $7,500, giving the plaintiff the option of reducing the verdict to $5,700 or accepting a new trial. Plaintiff thereupon filed his consent that the verdict be reduced to $5,700, -and a judgment was accordingly entered for that amount.