plant described in his contract with them, dated 31st March, A. D. 1886, as guarantied therein; and whereas, James P. Witherow is now erecting an additional battery at said furnace plant, of the same pattern, but of size L, and of somewhat different construction: Now, I, the said James P. Witherow, agree to furnish two other additional batteries, similar in size and construction to the additional battery above referred to as now being erected at such furnace plant. It being understood that if both of such two additional batteries, with the rest of the boiler power furnished, are found necessary to supply sufficient steam for the entire plant described in such contract, with one battery left always idle for necessary cleaning and repairs, then I am to pay the entire cost of such additional batteries. If, however, one of the additional batteries herein stipulated for be found sufficient for the purposes above described, then the De Bardeleben Coal and Iron Company is to pay me $8,000 for the second additional batteries. The two additional batteries herein provided to be completed and in position within sixty days from this date, provided the foundations for the same are ready to receive them. In case of disagreement between myself and the said De Bardeleben Coal and Iron Company as to whether the said additional battery is necessary or not, then the matter to be referred to some third party, to be mutually selected, and his decision to be final. If the second of the additional batteries above referred to prove satisfactory to the De Bardeleben Coal and Iron Company, they have the right to cancel this agreement, as to the third additional battery, without cost to them, if they so elect. "[Signed] James P. Witherow."

Each battery named in the contract consisted of two boilers. Witherow delivered the four additional boilers in conformity with this contract, making, in all, twelve boilers that he furnished. This suit is brought to collect pay for the last four boilers. The plaintiff company, which has become the successor of James P. Witherow, and the owner of the claim, contends that it is not necessary to use the four boilers last delivered in order to successfully operate the plant. The plaintiff therefore sues for $16,000, the value of the four boilers. The defendant in error contends that all the boilers furnished were necessary to operate the plant. These contentions make the issue of fact in the case, on which much evidence was offered by each party. Whether or not these four boilers last furnished were necessary to supply sufficient steam to operate the entire plant to its reasonable capacity, leaving two idle for use while cleaning and repairing, was the one question of fact for the jury. The plaintiff insisted that the contract should be so construed that, if the jury answered this question in the negative, it was entitled to receive $16,000; but the trial judge construed the contract to mean that the plaintiff in no event could recover on the contract more than $8,000. The circuit court (Judge Toulmin presiding) instructed the jury on this point as follows:

"Witherow entered into an agreement with the defendant to deliver to it (the defendant) four other and additional boilers, which agreement was in writing, and dated November 2, 1888, and which is in evidence before you. In that agreement Witherow states, in substance, that the boiler power furnished by him had not been found sufficient for the entire plant described in his former contract, as he had guarantied therein; and he agrees to furnish two other additional batteries, which, it has been shown, meant four additional boilers, and stipulates that if both such two additional batteries (in other words, four additional boilers), with the rest of the boiler power furnished, are found necessary to supply sufficient steam for the entire plant described in the original contract, with one battery (that is, two boilers) left always idle for necessary cleaning and repairs, then Witherow would pay the entire cost of such additional boilers, but if one of the additional batteries (that is, two boilers) stipu

lated for be found sufficient for the purpose described (that is, sufficient to supply steam for the entire plant), then the defendant should pay him $8,000 for two boilers. In the recital of this agreement, Witherow speaks of an additional battery (two boilers) that he was then erecting at the furnace plant, and then goes on and agrees to furnish two other additional batteries, or four additional boilers, and, in the winding up of the agreement, says that if the second of the additional batteries above referred to proved satisfactory to the defendant, the defendant had the right to cancel the agreement as to the third additional battery, without cost, if he so elected. My construction of that clause is that Witherow was referring to all three of the additional batteries mentioned in that agreement, and when he says, 'If the second of the additional batteries above referred to proved satisfactory,' etc., he had reference to the first of the two additional batteries which he then and there agreed to furnish, and, if they prove satisfactory to the defendant, the defendant could, at its election, cancel the agreement to pay the $8,000 for the other and last additional battery referred to, and which Witherow had stipulated to furnish. in other words, that the defendant had the right to relieve itself of paying $8.000 for the two boilers which it might have no need for. Now, you will observe that Witherow agreed to furnish four additional boilers, and stipulated that if all of them, with the rest of the boiler power already furnished, were necessary to supply sufficient steam for the plant, with two of the boilers left always idle, then he was to pay the entire cost, and the defendant was to pay nothing. If, however, two of the additional boilers were found sufficient for the purpose, then the defendant was to pay him $8,000, unless the defendant elected to cancel the agreement as to that. Now, the plaintiff avers in its complaint that it was not necessary to use four of the boilers delivered to the defendant, in order successfully to operate the defendant's furnace plant, and it claims pay for four boilers in the sum of $16.000. But I charge you, gentlemen, that, if you find the plaintiff is entitled to recover at all, it can only reCover $8,000 for two boilers, with interest on that amount from the time it was due or ought to have been paid, if you find from the evidence when that was. If you cannot find when that time was, then interest would run from the beginning of the suit."

This charge, we think, properly construes the contract. It leaves but little to add on the subject. By the original contract to erect the furnace, Witherow was to furnish five water-tube boilers, "guarantied sufficient for the entire plant." It is conceded that the five boilers were insufficient, He furnished another, which was still not enough, and while erecting two more (the seventh and eighth) the contract sued on was made. The De Bardeleben Coal & Iron Company had Witherow's guaranty to furnish sufficient boilers at his own expense, and it is not probable that it would agree to pay for boilers that were needed to run the plant. Witherow, on the other hand, would not probably agree to furnish, without additional pay, more boilers than were sufficient. The parties being so placed by the original contract, the one sued on was made. Witherow evidently conceded that two more boilers (the ninth and tenth) would be needed. ben Coal & Iron Company thought four more (the ninth, tenth, eleventh, and twelfth) would be needed. The contract provides that two batteries, of two boilers each, shall be furnished; but it provides, in terms, for the payment of $8,000 for one of the batteries if it was retained by the De Bardeleben Coal & Iron Company, and was unnecessary to run the plant. If one additional battery (the ninth and tenth boilers), with those already furnished, was all that was needed. Witherow was to be paid $8,000 for the other battery (the eleventh and twelfth boilers). In no event, by the contract, was he to be paid $16,000 for the two batteries. The last sentence of the agree

The De Bardele

ment confers the right on the De Bardeleben Coal & Iron Company, if, in its opinion, the eleventh and twelfth boilers were not needed, to decline to retain them, and so avoid paying the $8,000 for them. But the defendant accepted and retained both of the batteries, claiming that both were needed to fulfill the guaranty of Witherow. On this construction of the contract, if the last battery was required to run the plant, leaving one battery always idle for necessary cleaning and repairs, the plaintiff was entitled to nothing; if the last battery was not required, the plaintiff was entitled to recover $8,000 and interest. This question was fairly submitted to the jury, and they found by a verdict for the defendant that all the boilers furnished (twelve in number) were required to run the plant, leaving two idle ones for cleaning and repairs.

It is assigned as error that the court below refused to grant a new trial in the case. In the United States courts it has been uniformly held that the granting or refusal of a motion for a new trial is within the discretion of the court, and cannot be reviewed by an appellate court. It is contended by counsel for the plaintiff in error that the act of the legislature of Alabama of February 16, 1891 (Acts 1890-91, p. 779, No. 363; Code Ala. 1896, § 434), which provides for appeals from decisions on motions for new trials, should be followed in practice in the federal courts. It is true that the Revised Statutes of the United States (section 914) provide that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding. This statute, we think, does not have any application to the review of decisions refusing or granting new trials. In Newcomb v. Wood, 97 U. S. 581, 583, 24 L. Ed. 1085, the court said:

"It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed. and that the result cannot be made the subject of review upon a writ of error. We cannot think that congress intended by the act of June 1, 1872 (17 Stat. 197, § 5), to abrogate this salutary rule."

The object of section 914 of the Revised Statutes was to assimilate the form and manner in which the parties should present their claims and defenses in preparation for the trial of suits in the federal courts, to those prevailing in the courts of the states. This does not include proceedings in the appellate courts. It has no application to proceedings by writs of error or by appeal. In re Chateaugay Iron Co., 128 U. S. 544, 553, 9 Sup. Ct. 150, 32 L. Ed. 508. The case of Cowley v. Railroad Co., 159 U. S. 569, 16 Sup. Ct. 127, 40 L. Ed. 263, cited in the brief for plaintiff in error, has, we think, no application to this question. It merely states the familiar rule that the federal courts may enforce in equity new rights or privileges conferred by state statutes, as they may enforce on their common-law side new rights of action given by statutes. The Alabama statute cited does not confer on

parties litigating in the federal courts the right to review by writ of error the decision of the circuit court refusing to grant a new trial. Fishburn v. Railway Co., 137 U. S. 60, 11 Sup. Ct. 8, 34 L. Ed. 585.

There are many assignments of error (67 in all) which relate to the admission and exclusion of evidence. We have examined all of them, and are of opinion that the record shows no error to the injury of the plaintiff in error. It would serve no useful purpose to discuss them. The judgment of the circuit court is affirmed.

(99 Fed. 679.)

GRACE & HYDE CO. v. KENNEDY.

(Circuit Court of Appeals, Second Circuit. January 24, 1900.)

No. 56.

1. MASTER AND SERVANT-SAFE PLACE TO WORK.

A master was building a shed over the width of the sidewalk in front of a building in a city. Twenty-six foot posts were placed on the inside and on the outside of the sidewalk, on which were fastened wooden girders parallel with the street, and boards were nailed on such girders. The work was done at night, in consequence of the public use of the street in the daytime. Two derricks were used, which were secured by guy lines, some of which ran across the street, where they were secured. About 5 a. m. a wagon struck against one of the guys, which threw plaintiff's servant from the top of the post on which he was standing, and to which he was spiking a girder. Held, that the master cannot escape liability under the rule that the duty of the master to provide safe places does not apply where the place originally furnished is safe, and becomes unsafe in the progress of the work, or because of the manner in which the work is done, since it cannot be said that the place (the street) originally furnished was safe unless it was protected by danger signals or watchmen.

2. SAME.

Work was done at night on a structure where guy ropes were run into and across the street. A wagon of a third person ran against one of the ropes, which caused plaintiff to fall from where he was working on the structure. There were no lights or watchmen in the street near the ropes. Held, that the fact that when the workmen on the job began work sufficient appliances in the way of lamps were furnished does not exonerate the master within the rule that when the working place originally, and when the employé was sent to do the work there, was reasonably safe, but became unsafe at the particular time of the accident by causes that could not have been anticipated, the master is not liable, since the place could not be considered reasonably safe when the workmen began their night's work unless an adequate system was adopted for their protection against dangers easily to be anticipated.

8. SAME-WEIGHT AND SUFFICIENCY OF EVIDENce.

The usual practice as to guarding obstructions at night in the streets of a city where men were at work was to place red lamps on the obstruction, or to employ a watchman. A master had provided four red lanterns, two of which had been broken before the night of the accident, and the other two had been placed on that night at one obstruction, but there were none on the obstruction which a third person encountered, thereby injuring a servant. The evidence as to whether a watchman had been designated to give warning was conflicting. Held, that the question of whether the obstruction was sufficiently protected was for the jury. 4. SAME-ASSUMPTION OF RISKS.

A servant does not assume the risk of the employer's neglect to furnish a reasonably safe system of protection against the danger from in

jury by passing vehicles coming in contact with guy ropes extending from the place where the servant is working out into and across the street.

In Error to the Circuit Court of the United States for the Southern District of New York.

Chas. C. Nadal, for plaintiff in error.

Gilbert D. Lamb, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN, Circuit Judge. Daniel Kennedy, an employé of the Grace & Hyde Company, a corporation, brought an action at law in the circuit court for the Southern district of New York against his employer to recover damages for the injuries caused by its alleged negligence, and recovered a verdict for $2,500. To review the judgment which was entered upon the verdict this writ of error was brought.

The defendant, in the month of August, 1897, was building a shed or barricade over the width of the sidewalk in front of the Grand Central Depot, on the east side of Vanderbilt avenue, in the city of New York. The sidewalk was about 12 feet wide, and the barricade, of about 26 feet in height, consisted of two rows of upright posts, one row along the wall of the depot, and the other along the outer edge of the sidewalk,-upon which were fastened wooden girders parallel with the street, and upon the girders a covering of boards was nailed. In consequence of the extent of the public use of the street in the daytime, the work was done at night. These posts were 10 feet apart. Two derricks, one on the inside of the sidewalk and the other on the outside, were used to place the posts and girders in position, and each derrick was secured by two back guy lines and one head guy. At the time of the accident the inside derrick was secured by a head guy line running down to the stair rail of the basement stairs of the depot. The other two lines ran across the street. One was fastened to a lamppost at the corner of Forty-Third street and Vanderbilt avenue, and the other was fastened to a hydrant. These two lines had been secured across the street from the time of the commencement of the work. To a large beam in the street between the east curb and the car track one of the guys of the outside derrick had been fastened from time to time. The work began at Forty-Fourth street, and the derricks were moved forward from time to time in order to place the posts and girders in position, and when they were moved the position of the guys was changed. At about half past 4 or 5 o'clock in the morning of August 19, 1897, a mail van, which was coming through Vanderbilt avenue from the depot yard to Forty-Second street, struck against one of the guys of the inside derrick, caused it to sway over, and one of the ropes threw Kennedy from the top of the post on which he was standing, and to which he was spiking a girder. He was thrown upon the sidewalk, and his kneecap and one arm broken. The case was presented to the jury by the plaintiff upon the theory that, inasmuch as the work was necessarily done at night, upon a street which was frequently occupied by passing ve