Judgement reversed.
The declaration alleged in substance: Smith, being in the employment of defendant as an ordinary section hand, was engaged with others in loading a construction-car of the company with dirt from a grade, for a side-track for the company on its line of railway, under *765th e orders and direction of one Robinson, who was superintending the work fort-lie company, and who had charge and control of Smith and the other hands engaged with him. In loading the construction car Smith was required to be on the grade excavated for the sidetrack and near a high' embankment and facing the embankment; and the embankment, through the carelessness and negligence of the company and its employees, had been excavated, dug under or undermined to a depth of three or four feet, and left exposed to the weather in that condition, so that-, becoming cracked on the upper surface, insecure and unsafe, it broke oft’ and fell upon Smith, knocking him backwards and covering his entire body with dirt weighing several thousand pounds. The declaration then set forth the nature of the injuries inflicted, Smith’s previous earniugs, etc.
The amendment proposed was: Defendant-was guilty of gross negligence in excavating and digging under the embankment, in this; it was undermined fortuity thirty feet and no supports of any kind were placed under it to prevent it from falling ; it was undermined by the directions of Robinson, who was the agent of defendant; it was not excavated in chambers or galleries, the usual, proper and safe method of doing such work, but was undermined for the distance of thirty feet- and left in that condition over night, exposed to-the weather and the jarring of trains which were continually passing within a few feet of it; and although defendant knew and was hound to know the unsound condition of the embankment and the improper and unskillful manner in which it had been excavated, Smith was ordered by Robinson to work near and under it on the morning of the day following the day when it had been so undermined, when it fell and injured Smith. These acts were acts of gross negligence on the part of defendant, audit was through'and owing to this negli*766gen ce, and Avholly without any fault or negligence on bis part-, that Smith was injured. lie knew (?) of the condition of the embankment, or that it was improperly excavated or undermined, or that it was unsound or unsafe. He was young and inexperienced about such work and know nothing of the manner in which it should be done. He was guilty of no fault or negligence that contributed to the injury, Avas simply obeying the orders of bis superior as ho AA’as bound to do, and it Avas not possible for him to escape or avoid the injury. Robinson, who Avas a skilled officer of defendant, Avhose dntj it Avas to he present, examine the condition of the Avork and superintend it, Avas absent and not attending to his duties.
Calvin George and G. W. Gleaton, for plaintiff.
J. B. Cumming, A. C. McCalla and Bryan Gumming, for defendant.
The defendant demurred generally, and the demurrer Avas sustained. The amendment Avas not allowed because, no cause of action having been set forth in the declaration, there Avas nothing to amend by.