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

Tliis is an action at law to recover damages for personal injuries received by McLaughlin, the defendant in error, .while in the employ of the railway conrpany, plaintiff in error. The action was commenced in the state court, and thereafter removed, on motion of the railway company, to the United States circuit court. The complaint alleges, in substance, that McLaughlin, 0⅞ the 5th of November, 1892, was in the employ of the railway company, engaged in loading steel rails in the material yard of the company near Spoicane; that ho and his colaborers were working under the direct charge, supervision, and .control of the superintendent of the yard in putting iron and steel rails upon the flat cars of the railway company; that while he and his colaborers were pushing a steel rail upon two steel or iron skids one of the skids slipped, and fell down, causing the rail to fall back upon him, striking him upon the thighs near the abdomen, and throwing him backward across a pile of angle bars and over and upon a pile of steel rails, bruising and wounding his abdomen and thighs; that the steel rail rebounded, and'struck him upon the left leg, immediately above the ankle, lacerating and wounding his leg and injuring the bone; that in falling back he was thrown with great force, coming in contact with the steel rails, so as to injure and bruise his right hip and kidney, 'and for a long time paralyzed his legs and hips; that all of said injuries caused him great bodily pain; that said injuries were caused by the gross negligence and carelessness of the railway company, its agents and servants, and without fault on his part; that the injuries were caused by the use of improper skids for the purpose of loading steel rail's upon the cars, and the improper and negligent placing of the same by the railway company, its agents and servants; that he was totally ignorant of the danger in which he was placed, and of the imperfect skids used for loading the rails, and of the negligent and careless way in which the skids were placed. The injuries which McLaughlin received, and the expenses incurred by reason thereof, are particularly stated. After the removal of the cause to the circuit court, the railway company filed a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. On the same day, without any action being asked for or taken upon the demurrer, the railway company filed its answer, admitting the employment of McLaughlin, and that he was injured while in such employ; but. denied that he was under the direct charge, supervision, or control of any superior officer of the company, and, for affirmative defense, alleged that it furnished due and proper means and appliances for the loading of its cars; that the injuries which McLaughlin received were caused by his own unskillfulness and negligence and that of his colaborers, who were fellow servants, in using the means and appliances furnished by the conrpany; and that he was not injured by any of its fault or negligence. Upon the issues thus made the cause was tried before a jury, and a verdict rendered in favor of McLaughlin for $5,000. The railway company moved the court for a new trial, which was denied.

-The testimony at the close of the trial tended to show that a Mr. Tubby was the general superintendent and storekeeper of the yards for the railway company; that one Johnson was the general foreman of the yard; that he hired and discharged the workmen and directed and controlled their movements, and had supervision of the loading and unloading of the iron'and steel rails in the yard; that on the morning of the injury to McLaughlin there were three or four gangs of men engaged in loading cars at the same time, each gang consisting of from eight to twelve men, and each having a boss or head workman; that there were eight or ten pairs of skids lying along the track and scattered about in the yard, of different lengths, which had been used off and on for about two years; that some were shorter than others; that they were ordinary steel rails, some of them having fishplates or angle bars fastened on one end and bolted, and when used one end of the skid was placed on the side of the flat car and the other end rested on the pile of steel or iron to be loaded; that the workmen generally selected the skids for use and put them in place; that the iron pile grows lower as the rails are loa.ded, and the load on the car grows higher, and the angle of the skids steeper; the rails are slid up the skids by sticks used by the workmen; that McLaughlin had been employed in tlie business of loading the cars in this manner for about two weeks, and had, at different times, assisted in putting up tlie skids; that on the morning of the injury Johnson directed him to go to Collins’ gang, and help them load tlie car; that he went there, and some one said, “The oil can is dry;” that he took the can, and went away, tilled the can with oil, and upon his return a. fellow workman oiled the skids: that he went to work, with others, shoving up the rails on the skids; that when tlie third or fourth rail was partially moved about six. or seven feet upon the skids, the one furthest from him fell, the rails dropped, and he received the injuries set forth in Hie complaint; that while McLaughlin was absent Johnson picked out the skids to be used on this car, and directed the workmen present to put them up; that when the skids were brought to the car the workmen hesitated, and objected to putting them up, on tlie ground that one skid was shorter than tlie others, and told Johnson they were not safe; that Johnson (lien examined tlie skids, and saw (hey were of different lengths, and thereupon lie said to (he men that ilie skids were all right, and ordered them to go ahead, and put them up, and go to work loading the car, as ho was in a hurry to have it loaded; that (he cause of tlie injury was occasioned by the defect in the skid that, fell being too short, and a little crooked; neither of the skids had fish plates attached thereto; that McLaughlin had no knowledge or information of the defect in the skids, did not know their lengths, or (.he manner in which they were put up, or whether they were tit for the purpose for which they were used; that he did not examine them, and had no reasonable opportunity to do so, and lie testified that he would not have engaged in the work of loading the car liad he known that either of the skids was imperfect; that it was the shortest skid that fell, it being seven or eight inches shorter than the others, and unfit to use for that purpose; that Collins was in charge of the gang when the rail fell, Johnson having gone away.

There was more or litss conflict in the evidence as to whether the injury was caused by the defective skid, or by the negligence of tlie workmen in irregularly pushing up tlie rails on the skids. There was also some conflict as to Johnson’s authority to hire and discharge men, and as to whether he was a vice principal of the railway company or a fellow servant with McLaughlin.