609, 110 C. C. A. 395, 37 L. R. A. [N. S.] 456); by the order of a superintendent to workmen under him to use a derrick furnished to raise heavy weights before it was securely fastened in its place (Kelly v. Jutte & Foley Co., 104 Fed. 955, 44 C. C. A. 274); by the failure of the officer of a steamship to close a hatchway through which a servant falls (Olson v. Oregon, etc., Co., 104 Fed. 574, 44 C. C. A. 51); by the failure of a foreman or other workmen employed to watch and remove or repair a rope in a derrick or other appliance, when it becomes worn or weak by use, to remove or repair it in time (Vogel v. Am. Bridge Co., 180 N. Y. 373, 73 N. E. 1, 70 L. R. A. 725; Johnson v. Boston Towboat Co., 135 Mass. 209, 46 Am. Rep. 458; Cregan v. Morston, 126 N. Y. 568, 572, 27 N. E. 952, 22 Am. St. Rep. 854; McGee v. Boston Cordage Co., 139 Mass. 445, 1 N. E. 745; Webber v. Piper, 109 N. Y. 496, 17 N. E. 216); and by numberless other acts of negligence of servants of railroad companies and of other employers which caused the places where their fellow servants were employed, or the appliances with which they were working, or the methods of operation which they were pursuing, to become dangerous and injurious. But the duty of the master does not extend to guarding the places or the machinery, or the method of operation against the dangers of such acts. They are violations of the primary duty of the servants, and the courts in these and other such cases have decided that the respective masters were not liable for injuries resulting from these acts of negligence.

[5, 6] All who enter into the service of a common master, except those who become heads of and vested with absolute control of separate departments or branches of a great and diversified business, thereby become engaged in a common service and are fellow servants in all they do, except that which they do in discharge of the master's nondelegable duty of provision. And in the absence of a statutory provision to the contrary each servant, by accepting his employment, voluntarily assumes the risk and danger of the negligence of his fellow servants in the discharge of all their duties of operation, whether those duties are those of superintendence and direction, or those of equal or subordinate service. Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 383, 384, 13 Sup. Ct. 914, 37 L. Ed. 772; Northern Pac. R. Co. v. Hambly, 154 U. S. 349, 360, 14 Sup. Ct. 983, 38 L. Ed. 1009; Martin v. Atchison, Topeka & S. F. R. Co., 166 U. S. 399, 401, 403, 17 Sup. Ct. 603, 41 L. Ed. 1051; New England R. R. Co. v. Conroy, 175 U. S. 323, 327, 328, 343, 346, 347, 20 Sup. Ct. 85, 44 L. Ed. 181; Central R. Co. v. Keegan, 160 U. S. 259, 262, 264, 267, 16 Sup. Ct. 269, 40 L. Ed. 418; Northern Pacific R. Co. v. Charless, 162 U. S. 359, 361, 364, 16 Sup. Ct. 848, 40 L. Ed. 999; Northern Pacific R. Co. v. Peterson, 162 Ü. S. 346, 349, 358, 16 Sup. Ct. 843, 40 L. Ed. 994; Alaska Mining Co. v. Whelan, 168 U. S. 86, 89, 18 Sup. Ct. 40, 42 L. Ed. 390; Northern Pacific R. Co. v. Dixon, 194 U. S. 338, 339, 346, 24 Sup. Ct. 683, 48 L. Ed. 1006; Texas & Pac. Ry. Co. v. Bourman, 212 U. S. 536, 539, 541, 29 Sup. Ct. 319, 53 L. Ed. 641; Beutler v. Grand Trunk Junction. Ry., 224 U. S. 85, 88, 89, 32 Sup. Ct. 402, 56 L. Ed. 679; Brooks v. Central Ste. Jeanne, 228 U. S. 688, 693, 33 Sup. Ct. 700, 57 L. Ed.

1025; City of Minneapolis v. Lundin, 58 Fed. 525, 527, 7 C. C. A. 344, 346; Weeks v. Scharer, 111 Fed. 330, 335, 49 C. C. A. 372, 377; Gulf Transit Co. v. Grande, 222 Fed. 817, 819, 820, 138 C. C. A. 243; Deye v. Lodge & Shipley Mach. Tool Co., 137 Fed. 480, 482, 483, 70 C. C. A. 64; Dayton Coal & Iron Co. v. Dodd, 188 Fed. 597, 602, 110 C. C. A. 395, 37 L. R. A. (N. S.) 456; Baltimore & Ohio R. Co. v. Brown, 146 Fed. 24-29, 76 C. C. A. 482; Wood v. Potlatch Lbr. Co., 213 Fed. 591, 593, 594, 130 C. C. A. 171; Victor American Fuel Co. v. Eidsen, 237 Fed. 999, 150 C. C. A. 649; Missouri Valley Bridge & Iron Co. v. Walquist, 243 Fed. 120, C. C. A. — (C. C. A. 8th Circuit) filed May 14, 1917.

[7, 8] A servant assumes the ordinary risks and dangers of his employment and the extraordinary risks and dangers which he knows and appreciates. Neither the order of a vice principal to the servant to work in a dangerous place, or in a dangerous way, nor his assurance of the servant's safety, nor the servant's fear of losing his job, will release the servant from his assumption of the risk and danger where they were readily observable and were known and appreciated by him, unless the vice principal makes a promise to remove them as an inducement for the servant's continuance in the service. Chicago, B. & Q. R. Co. v. Shalstrom, 195.Fed. 725, 729, 115 C. C. A. 515, 45 L. R. A. (N. S.) 387, and cases there cited; Seaboard Air Line v. Horton, 233 U. S. 492, 496, 503, 504, 507, 508, 34 Sup. Ct. 652, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Bunt v. Sierra Butte Gold Min. Co., 138 U. S. 483, 484, 485, 11 Sup. Ct. 464, 34 L. Ed. 1031; Musser Sauntry, etc., Co. v. Brown, 126 Fed. 141, 143, 144, 61 C. C. A. 207; Walker v. Scott, 67 Kan. 814-816, 818, 64 Pac. 615; Showalter v. Fairbanks, Morse & Co., 88 Wis. 376, 60 N. W. 257, 258; Toomey v. Steel Works, 89 Mich. 249, 50 N. W. 850, 851; Kean v. Rolling Mills, 66 Mich. 277, 33 N. W. 395, 399, 400, 11 Am. St. Rep. 492; Lamson v. American Axe & Tool Co., 177 Mass. 144, 145, 58 N. E. 585, 83 Am. St. Rep. 267, opinion by Holmes, Chief Justice, now Mr. Justice Holmes; Bradshaw, etc., v. Railway Co. (Ky.) 21 S. W. 346, 347.

[9-11] The argument of counsel for Mr. Marone is that the order of the foreman of his gang to him to go and assist in cutting the rails with a sledge hammer and a chisel and his reply to Marone's declaration that he wanted something to protect his eyes, to "Go on, that is all right; we never use them"-constituted substantial evidence of liability of the railroad company for his injury. But the established rules of law and the decisions of the courts which have been cited and by which it is the duty of this court to be governed leave no escape from the conclusion that this argument cannot prevail: (1) Because there was undisputed evidence that the company by adopting a rule that those cutting rails with a chisel must wear goggles and by providing the goggles had exercised reasonable care to discharge its duty of provision, and there was no substantial evidence that it had failed to do so; (2) because the foreman in his act of directing Marone what to do and in his answer to his protest was discharging a duty of operation, a duty of the servant, and not a duty of provision, not a duty of the master. In the discharge of that duty he was not a vice principal, but a fellow

servant of Marone, the risk of whose negligence Marone had assumed; and (3) because if the foreman had been a vice principal of the company in his acts directing Marone what to do and answering his protest, the undisputed testimony is that the risk and danger of his work with the sledge hammer and the chisel were readily observable, had been sensibly experienced by Marone by receiving from them a steel chip in his wrist, and were fully known and appreciated by him. The judgment below must therefore be reversed, and the case must be remanded to the court below, with directions to grant a new trial; and it is so ordered.

STONE, Circuit Judge, concurs in the result for the following reasons: There is no claim of any promise by the foreman to remedy the defect which later caused the injury. It is an instance of an employé remaining voluntarily at work after he knows the defect and knows the danger threatened to him by it. For an assurance to protect the workman he must have actually relied upon it, and must, under the circumstances, have been justified in that reliance. The testimony here clearly shows that he did not rely upon it, and is very persuasive that he would not have been justified in so doing.

AMERICAN R. CO. OF PORTO RICO v. PONCE & G. R. CO.

(Circuit Court of Appeals, First Circuit. November 15, 1917.)

No. 1293.

1. EVIDENCE
TO MODIFY WRITTEN CONTRACT.

441(14)-PAROL EVIDENCE AFFECTING WRITINGS-EVIDENCE

Where, on its expiration, a written contract was renewed by another writing which provided that it should be attached to the original contract, which was "to be considered as continuing

with all its

covenants, conditions and provisions without change except as to the date of expiration thereof," and the contract was clear and unambiguous, in an action at law on the renewed contract evidence was not admissible to show that the original contract had been modified by parol prior to the renewal and that it was the intention that the modification should be carried into the renewal.

2. EXECUTION

COURT.

158(1)-STAY TO PERMIT EQUITABLE DEFENSE-POWER OF

It appearing, however, that defendant had misconceived its remedy, the court might properly stay execution on the judgment in favor of plaintiff to permit defendant to file a bill in equity to reform the contract, and if its contention was sustained, and the contract reformed, stay execution permanently.

In Error to the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.

Action at law by the Ponce & Guayama Railroad Company against the American Railroad Company of Porto Rico. Judgment for plaintiff, and defendant brings error. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Francis H. Dexter, of San Juan, Porto Rico (Jacobs & Jacobs, of Boston, Mass., on the brief), for plaintiff in error.

Malcolm Donald, of Boston, Mass. (Charles Hartzell, of San Juan, Porto Rico, on the brief), for defendant in error.

Before DODGE, BINGHAM, and JOHNSON, Circuit Judges.

BINGHAM, Circuit Judge. This is a writ of error from a judgment of the United States District Court for Porto Rico entered in favor of the Ponce & Guayama Railroad Company, a New Jersey corporation, in an action brought by it against the American Railroad Company of Porto Rico, a New York corporation, to recover the sum of $12,812.59, with interest, being the amount claimed to be due it under the terms of a written contract entered into between said companies and a corporation known as the "Central Fortuna," each of which owned parts of certain connecting railroads forming a line between Ponce and Guayama in the island of Porto Rico.

In order to supply the public service which each corporation was under duty to render, the parties, on September 7, 1910, entered into an agreement for one year from the date of the beginning of regular train service, whereby the American Railroad Company was to supply the equipment and men, and was to be allowed certain sums for passenger, freight and mixed train service. In addition to receiving its proportion of the revenue for the service rendered over its own line, the American Railroad Company was to receive a certain remuneration from the other parties, to wit:

For passenger trains, "fifty cents per kilometer run per train * * * based on the number of kilometers on the main line of each." For freight trains, "one and one-half cents per ton per kilometer for all freight it transported on the lines of the other roads, each company paying on the basis of freight transported on its own line." But the remuneration on account of the freight so transported was not to "be less than seventy-five cents per train per kilometer." The earnings from through freight were to be divided proportionately to the distance, but, if the haul on any line was less than 20 kilometers, an allowance for a haul of that length was to be made.

And for a mixed train service, it was to receive its proportion of the revenue accruing from passenger and mail service-that is, the sum that would accrue to it for transportion over its own line-and also such remuneration as was provided for freight train service. The contract made no provision for compensation to the American Company for service in carrying passengers by mixed trains over the lines other than its own.

On or about September 28, 1911, and before the expiration of the original contract, the parties entered into a renewal agreement, in writing, by which the original agreement of September 7, 1910, was extended for a period of one year from September 30, 1911, to September 30, 1912, in which the parties, "in consideration of the mutual covenants contained in the agreement, heretofore described [of September 7, 1910], and in consideration of these presents, do hereby extend for

the term of one year said memorandum of agreement, dated September 7, 1910, from the thirtieth day of September, 1911, to the thirtieth day of September, 1912, with all its covenants and conditions. This agreement is to be annexed to the said agreement of September 7, 1910, and is to be considered as continuing such original agreement, with all its covenants, conditions and provisions, without change, except as to the date of the expiration thereof."

During the year from October 1, 1911, to October 1, 1912, the American Company operated mixed trains over the lines in question, and received the revenues arising therefrom. In accounting for the revenues thus received, it charged the Ponce & Guayama Company, in addition to the amount allowed by the contract for freight train service, the "fifty cents per kilometer run per train" allowed for a regular passenger train. The amount thus withheld during the year from the Ponce & Guayama Company was $12,812.59, and is the sum for which this action is brought and for which recovery was allowed in the court below.

[1] The American Company claims the right to withhold this sum, not upon the terms of the original contract of September 7, 1910, which was incorporated into the renewal agreement of September 28, 1911, but upon the terms of an oral agreement which it is claimed the parties entered into on September 16, 1910, and before any service was rendered under the original agreement of September 7th, and that the oral agreement was a modification of the contract of September 7th, and was incorporated into the renewal agreement upon which the suit is brought.

At the trial in the court below, the American Company offered evidence tending to prove the modification of the original contract of September 7th, and that it was intended to incorporate that contract. and the modification of September 16th into the renewal contract. It also sought to introduce in evidence a judgment rendered in the United States District Court for Porto Rico in a prior action brought by the Ponce & Guayama Company against it, to recover the sum retained by the American Company for a like service rendered for a mixed train under the original contract of September 7th, as modified, in which action judgment was rendered for the American Company. The foregoing evidence was excluded, subject to the defendant's exception, and the question is whether the court erred in these rulings.

The Ponce & Guayama Company contends that the evidence was properly excluded, primarily for the reason that the renewal agreement was clear and unambiguous in its terms, and in no way referred to or incorporated the terms of the oral agreement which was in addition to and in modification of the original agreement of September 7th; that to admit such evidence would be in contravention of the parol evidence rule, the provisions of the Act of the Legislative Assembly of Porto Rico of March 9, 1905, Regulating the Introduction of Evidence in Civil Proceedings (sections 25, 26 [Rev. St. & Codes 1913, §§ 1393, 1394]), and of sections 1248 and 1058 of the Civil Code of Porto Rico. (Rev. St. & Codes 1913, §§ 4354, 4154); and that, if the parties in fact understood the agreement in a sense other than that expressed by the