1. Witnesses — Conversation with Deceased Person — Party in Interest.

Rev. St. TJ. S. § 858, provides that the law of the state in which the court is held shall determine the competency of witnesses in the courts of the United States. 2 Hill’s Code Wash. § 1646, provides that, where a party sues or defends as a personal representative of a deceased person, then a party in interest or a party to the record shall not be admitted to testify in his own behalf as to any statement made to him by such deceased person. The evidence in an action against a railroad company to recover for the death of plaintiffs husband, who was killed by a landslide, showed that he was a section man on defendant’s railroad, and that, with another section man, he was engaged in removing earth which had been deposited on the track, blocking the passage of a train, by a landslide from the bluff overhanging the track; that while so engaged, in answer to interrogatories of the conductor of the delayed train, he stated that there was danger of another landslide occurring at any time, that he had worked there before, and that they could expect another at any time. Held, that the conductor may testify to such statements, as he is not a party to the record or interested in the case.

2. Conversation with Deceased Person — Res Oesms.

Such conversation constituted a part of the res gestae, and was relevant, as tending to show that decedent was informed of the danger to which he was exposing himself.

8. Master and Servant — Raiikoads—Rules—Duty of Conductor.

In an action against, a railroad company to recover for the death of plaintiff’s husband, caused by his being swept off defendant’s tracks into a river by a landslide, the evidence disclosed that he was one of defendant’s section men; that, with another, he had been sent out to look for dangerous places in the track, liable to have been caused by the heavy rains which had fallen; that the landslide which swept him into the river occurred while he, under the direction of the conductor of a delayed irain. and pursuant to a rule of the company requiring him to act under such conductor’s direction, was removing a previous slide from the track. Plaintiff claimed that there was a hidden danger in the bank. Held, it was no part of the conductor's business to warn plaintiff of the hidden danger, merely because a rule of the company provided that section men should, in case of accident or delay to a train, obey the orders of the conductor, especially where it was no part of the conductor’s duty to know about the condition of the bluff, but the care thereof was in part intrusted to decedent.

4. Same — Negligence—Conductor—Section Man — Fellow Servant.

A section man working under the direction of a conductor of a delayed train in removing an obstruction from the track is a fellow servant with the conductor, and the company is not liable for injuries to one occasioned by the negligence of the other, though a rule of the company provides that section men shall always assist the passage of trains, and, in case of accident or delay, obey the orders of the conductor.

5. Same.

The wife of a section man cannot recover from a railroad company for the death of her husband, who was swept from defendant’s tracks into a river by a landslide, where the slide was caused by the failure of the crew, of which her husband was a member, to properly drain a bluff overhanging the track, where such duty was imposed on them by the rules of ' the company, as such failure is the negligence of fellow servants.

6. Same — Assumption op Risk.

Where section men on a railroad know that they constitute the usual force detailed for the performance of a particular duty, and during its performance they voluntarily expose themselves to a danger of which they should have known as much as any one, they are deemed to have assumed the risks incident to their situation, and cannot afterwards complain that there was not a sufficient force of men to do the work safely.