or if the master has refused to remedy the defect, the servant cannot rely upon his expectation of a remedy as an excuse for remaining, whatever rights he may have upon other grounds; and in many cases it has been held that he 'assumed the risk.'" Shear. & R. Neg. § 215. Substantially the same rule was declared in Hough v. Railway Co., 100 U. S. 225. In Smith, Neg. (Whittaker's Ed.) p. 136, what may be regarded as the English rule is thus declared:

"If the master has expressly or impliedly promised to repair a defect, then, if an accident happens while such promise is running, the servant can recover; or, if the servant continues in the service in the reasonable expectation that the repairs will be effected, he can recover. If the promise is not performed in a reasonable time, and the servant continues in the employment, an inference arises of new terms having been agreed upon, and the servant cannot recover. The reason of this is said to be (Clarke v. Holmes, 7 Hurl. & N. 937) that there is contributory negligence on the part of the servant; but it is suggested in Shear. & R. Neg. § 97. that the true ground is that the servant has waived the objection, and induced the master to suppose that it is waived, or, as we are inclined to say, the servant has renewed the service, accepting the risk."

In Whart. Neg. § 220, the doctrine upon the subject is thus laid down:

"It has been further argued that a servant does not, by remaining in his master's employ with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them, in such a way as to induce a confidence that they will be remedied; such confidence being based on the master's engagements, either express or implied. The only ground on which the exception before us can be justified is that in the ordinary course of events the employé, supposing the employer has righted matters, goes on with his work without noticing the continuance of the defect. But this reasoning does not apply, as we have seen, to cases where the employé sees that the defect has not been remedied, and yet intelligently and deliberately continues to expose himself to it. In such case, on the principles heretofore announced, the employer's liability in this form of action ceases. He may be liable for breach of promise, but the casual connection between his negligence and the injury is broken by the intermediate voluntary assumption of the risk by the employé."

In Gowen v. Harley, 12 U. S. App. 574, 6 C. C. A. 190, and 56 Fed. 973, the circuit court of appeals for the Eighth circuit, through Sanborn, Circuit Judge, declared the general rule and the exception in language as follows:

"A person who is of age, and of ordinary capacity, assumes the usual risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to a reasonably prudent person, under like circumstances, by the exercise of ordinary care and foresight. One of the usual risks he thus assumes is the danger from the negligence of a fellow servant who is engaged with him in a common employment in the service of the same master. Railroad Co. v. Baugh, 13 Sup. Ct. 914. To the last rule there is this exception: If a servant, who is aware of a defect in the instruments with which he is furnished, notifies the master of such defect, and is induced, by the promise of the latter to remedy it, to remain in the service, he does not thereafter assume the risk from such defect, until after the master has had a reasonable time to repair it, unless the defect renders the service so imminently dangerous that no prudent person would continue in it. Hough v. Railway Co., 100 U. S. 213, 225; Railroad Co. v. Young, 1 C. C. A. 428, 49 Fed. 723; Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378; Railway Co. v. Watson, 114 Ind. 20, 27, 14 N. E. 721, and 15 N. E. 824."

See, also, District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884; Parody v. Railway Co., 15 Fed. 205; 14 Am. & Eng. Enc. Law, 815, and cases there cited.

Among recent cases in accord with those already cited, as to the effect of a promise to repair, and the exception created during the running of such a promise, we may mention the following: Oil Co. v. Helmick, 148 Ind. 459, 47 N. E. 14; Carriage Co. v. Potter (Ind. Sup.) 52 N. E. 209; Trotter v. Furniture Co., 47 S. W. 425, 101 Tenn. 380; Donley v. Dougherty, 174 Ill. 582, 51 N. E. 714; Steel Co. v. Mann, 170 Ill. 200, 48 N. E. 417.

In view of the undisputed facts of this case, and the established rules applicable to such facts, the proper disposition of this question would seem to require no elaborate discussion. There is obviously no special ground in this case on which to base or claim an exception to the general rule under which the risk of a patent defect is assumed. The interval of time between the date when the servant claims assurance was given that the projecting bolts would be removed and date of the accident was such that there could clearly be no claim to an exception on that ground. Indeed, plaintiff's counsel do not insist that there is. On the contrary, it is conceded, or, if not conceded, it is too evident to be denied, that the case is not within the exception created by a promise to repair. The contention by which it is sought to sustain the judgment of the court below is that the servant "did not anticipate being hurt in the way he was." It is said that the danger of this character of accident was not anticipated, and the risk of it not, therefore, assumed. It is not insisted that the servant could recover for injury received by his clothes being caught by the bolts. on the revolving wheel; being aware of that danger, and having complained of it to the master. But, the position of the waterline pipe and the revolving wheel being visible and patent, such danger as existed on account of this situation was just as obvious to, and as easily comprehended by, the servant as the master. The duties of the servant brought him in daily contact with the machinery, and furnished him a constant opportunity to inspect the same. His means of knowledge were evidently superior to those of the master. Notwithstanding that the defect was open. patent, and constant, and the servant's means of knowledge not only equal, but superior, to those of the master, defendant in error is forced into the dilemma of maintaining that the danger of such a defect was one which the master was bound to anticipate, while the servant was not. This contention is evidently unsound, as will be recognized upon its simple statement, without more. The servant was a mature man, and a skilled engineer, whose duty brought the patent conditions and dangers constantly under his notice, and during a long service. Under such circumstances, if the servant is not bound to anticipate and appreciate the danger, no grounds can be suggested on which the master is required to do so. If the knowledge and means of knowledge of the servant in respect to a patent defect are equal or superior to those of the master, there can be no recovery,-certainly so in the ordinary

case. Railroad Co. v. Handman, 13 Lea, 430; Ogden v. Rummens, 3 Fost. & F. 751; Dynen v. Leach, 26 Law J. Exch. 221; Railway Co. v. Gann, 47 S. W. 493, 101 Tenn. 257. In Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, although the case turned on another point, the court apparently recognized this general rule. And see, to same effect, Southern Pac. Co. v. Seley, 152 U. S. 152, 14 Sup. Ct. 530, approving Sweeney v. Engraving Co., 101 N. Y. 520, 524, 5 N. E. 358, in which it was said of the servant, "He knew as much about it, and the risk attending its use, as the master." See, also, Steel Co. v. Mann, 170 Ill. 200, 48 N. E. 417, and Railroad Co. v. McDade, 135 U. S. 570, 10 Sup. Ct. 1044. It will be observed that the rule, as thus stated and applied, proceeds upon the ground that the defect is open, and the danger one reasonably to be apprehended, and the means of knowledge equal; and it is not necessary, for the purpose of this case, to make any broader statement of the rule, for the conditions here met with give rise to no intricate question of mechanics, any imperfect intelligence on the part of the servant, or other ground for exception. With the rule in a case of latent defects, we here have no concern. It must not be forgotten that when the defect is patent, and the danger apparent, and such as the servant, in the exercise of reasonable prudence, ought to comprehend, with a constant opportunity for inspection, he is bound to know of the danger. He has, in such a case, constructive notice. Southern Pac. Co. v. Seley, 152 U. S. 152, 14 Sup. Ct. 530; Railroad Co. v. McDade, 135 U. S. 570, 10 Sup. Ct. 1044. When the defect is known, and the danger apparent, it is immaterial that the servant does not anticipate the precise extent or character of the injury which may result. None of the authorities upon the subject put the rule of assumption of risks upon the narrow distinction that the servant may know of the danger, but not fully realize the extent or character of the injury which may be sustained. The attempt to introduce such a test or condition would render the rule of the assumption of risks by the servant practically nugatory. That there is no such impracticable element in the rule must be regarded as settled. Railroad Co. v. Kemper, 47 N. E. 214, 147 Ind. 561; Feely v. Cordage Co., 161 Mass. 426, 37 N. E. 368. If the water-pipe line was constructed too close to the fly wheel, with the bolts attached, the danger that the bolts on the fly wheel would come in contact with the water-line pipe in the operation of the machinery, and thereby cause an accident, was fully as apparent to the servant as the master; and if it might have been anticipated that fragments of the broken bolts on the fly wheel, or of the broken water-line pipe, hurled in different directions, might cause injury, the anticipation of such a result was as much within the power of the servant as the master. In Kohn V. McNulta, 147 U. S. 241, 13 Sup. Ct. 298, the defect complained of by the servant was a lack of deadwoods or bumpers on the freight cars. The court, disposing of this contention, said:

"The intervener was twenty-six years of age. He had been working as a blacksmith for about six years before entering into the employ of the defendant. He had been engaged in this work of coupling cars in the company's

yard for over two months before the accident, and was therefore familiar with the tracks and condition of the yard, and not inexperienced in the business. He claims that the Wabash freight cars, which constituted by far the larger number of cars which passed through that yard, had none of those deadwoods or bumpers; but inasmuch as he had in fact seen and coupled cars like the ones that caused the accident, and that more than once, and as the deadwoods were obvious to any one attempting to make the coupling, and the danger from them apparent, it must be held that it was one of the risks which he assumed in entering upon the service.”

The principle thus declared is fully applicable to the case in hand. This case, in its facts, is quite different from Norman v. Railroad Co., 22 U. S. App. 505, 10 C. C. A. 617, and 62 Fed. 727, and James B. Clow & Sons v. Boltz (decided at the present term of this court) 92 Fed. 572.1 In the former case the testimony in behalf of the injured employé went to show that the injury was without fault on his part, but was due to a defective condition of the floor of the shed where he was working, and that he had worked at the place where he was injured only at rare intervals, and that he was ignorant of the condition of the floor of the shed at that place; the servant expressly denying knowledge of the defects in the floor. The foreman of the master, on the contrary, testifies that the servant had been in that part of the shed several hundred times. It was adjudged that the conflict of testimony between the servant and the foreman as to the servant's knowledge, and his opportunity to know, of the defects, should have been submitted to the jury. In the latter case certain wedges had been introduced in the framework of the truck or car eight days before the accident, in order to meet a demand made by heavy orders, whereby the danger was increased. This change was made with the knowledge and by the direction of the superintendent and managers of the master's works, and against the express protest of the expert core maker in charge of the labor gang, who stated that the use of such wedges was not safe. The injured employé was a common laborer, without mechanical skill, and the car had been operated before the change for a period of six months without injury. At the joint of the two rails on one side of the car track there was a depression in the ground, causing one rail to rest higher than the other, and giving a jolt to the passing car. This defect was known to the serv ant, but an attempt had been made to remedy it. Under such circumstances as these, the court held that it could not be ruled, as a matter of law, that the question of the servant's knowledge of the danger incident to the use of the machinery as changed was not one for the jury.

The conclusion of the whole matter, shortly put, is that the defects and conditions complained of as causing the accident were obvious. and known to the servant when he entered into the service, and constantly brought under his notice, in the discharge of his regular duties, during the time of his service. He was a skilled, experienced engineer, with opportunities to observe and understand the danger superior to those of the master. In such a state of the evidence as this, the question was one of law for the court, and not of fact for the jury.

134 C. C. A. 550.

The evidence was so conclusive that it would have been the clear duty of the court below, on motion, to set aside the verdict returned in plaintiff's favor; and in such a case it was the court's duty, on motion, to withdraw the case from the consideration of the jury. On substantially such facts as this record discloses, the rule has been thus announced:

"Where, however, an experienced operator, cognizant of the defects of machinery, puts himself within its range, and is injured, he is thereby, in law, supposing the fact to be established, precluded from recovering from the employer." Whart. Neg. § 218.

In Elliott v. Railway Co., 150 U. S. 246, 14 Sup. Ct. 85, Mr. Justice Brewer, speaking for the court, enunciated the rule as follows:

"It is true that questions of negligence and contributory negligence are ordinarily questions of fact to be passed upon by a jury; yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury, and direct a verdict. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railroad Co., 114 U. S. 615, 5 Sup. Ct. 1125; Railroad Co. v. Converse. 139 U. S. 469, 11 Sup. Ct. 569: Aerkfetz v. Humphreys, 145 C. S. 418, 12 Sup. Ct. 835."

And in the later case of Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U. S. 674, 15 Sup. Ct. 718, the supreme court stated the same rule thus:

"But it is well settled that where the trial judge is satisfied, upon the evidence, that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant."

Well-considered cases in this court speak the same language. Blount's Adm'x v. Railway Co., 22 U. S. App. 129, 9 C. C. A. 526, and 61 Fed. 375; Railway Co. v. Lowry, 43 U. S. App. 408, 20 C. C. A. 596, and 74 Fed. 463; Railroad Co. v. Cook, 31 U. S. App. 277, 13 C. C. A. 95, and 66 Fed. 115.

Concluding, as we do, that the defendant was entitled to a peremptory instruction in its favor, and this view being decisive of the case as presented in this record, it is not material to decide other questions made and discussed. Reversed and remanded, with a direction to set aside the verdict and grant a new trial.

(94 Fed. 83.)

SANDHAM v. GROUNDS.

(Circuit Court of Appeals, Third Circuit. May 9, 1899.)

No. 31, March Term.

1. DAMAGES-BREACH OF CONTRACT FOR ADOPTION.

The measure of damages for breach of a contract by one person to adopt another and make the latter an heir, under the law of Pennsylvania, is not the value of the share of the promisor's estate at his death which would have been inherited by the promisee, but the value of the services rendered or outlay incurred by the promisee on the faith of the promise, with interest.