This is a writ of error to reverse a judgment for the sum of $3,000, which a jury found as damages for personal injuries sustained by McElligott, the defendant in error, who was plaintiff below, through the alleged negligence of the District of Columbia in its conduct of certain public work on which, at the time of such injuries, he was engaged as a laborer in its employment. It appears that one Smallwood, the supervisor of county roads, undertook the repair of a public highway by the use of material obtained from a gravel bank. McElligott and one Meacham constituted a part of the force of laborers employed for that work. The special duty assigned to Meacham was to 'prepare gravel' to be hauled away, while McElligott was to fill the carts in which the gravel was transported to the place where it was to be used by the supervisor. They reached the bank between 8 and 9 o'clock on the morning of June 12, 1878, observing, upon their arrival, that it had been undermined at one side for two or three feet, and a chamber cut into it,-a condition which, to some extent, increased the chances of the bank falling.
The plaintiff insists that there was evidence tending to show the following facts: That while Meacham and McElligott were at work, Smallwood was giving his attention to the repairing of the public road with the material brought from the gravel bank; that between 9 and 10 o'clock in the morning McElligott sent word to him to provide two additional men for the work at that place, one to watch the bank, and the other to aid in filling the carts; that within a very short time an answer came to the effect that the request would be complied with; the plaintiff stopped work at noon for dinner, but before doing so sent a second message, which Smallwood received, to send more men, one to watch the bank and one to assist in loading the carts; that he resumed work about 1 o'clock, and about half an hour after that time-no men having been sent by Smallwood-the bank fell while he was at work five or six feet from it; that the falling bank caught him, despite his efforts to escape, burying him for a time beneath the gravel, and inflicting upon him injuries of a serious and permanent character; that, to use the language of the witness Meacham, 'it is not safe to stand under a bank that has been undermined;' and, that, although McElligott recognized from the outset that it was dangerous for him to do his work without some one being present whose special duty was to give timely notice of the first indications of the bank's falling, he continued to work in reliance upon Smallwood's promise to send some one to watch the bank. The District claims that there was evidence tending to show that Smallwood did not receive a message from McElligott to send men to watch the bank, or to aid in loading the carts; that the former was not in the habit of providing men to watch a gravel bank, except when it was intended to have a 'fall;' that there was no such intention on the day McElligott was injured; and that neither the latter nor Meacham had any instructions to make a 'fall.'