In a personal injury action by an employé in an icehouse, a judgment rendered on directed verdict for defendant was reversed by the Supreme Court. The basis of liability on the former trial was an agreement that, if plaintiff should be injured while working on a platform without a guard, he should be compensated. Upon second trial it was shown that this agreement was made when plaintiff was first hired, many years before the accident, and that at the time he was injured he was working under an agreement that, if he should be injured on the platform, he would be compensated. Held that, while the second agreement was much broader and included all accidents, yet, as the second agreement covered the assumption of risk arising from want of a railing, the decision on the first appeal was the law of the case applicable to the second trial. MUNSON, J. This case was disposed of on the first trial by directing a verdict for the defendant, and the judgment then rendered was reversed by this court. 86 Vt. 189, 84 Atl. 603. The case is now here on exceptions to a judgment obtained by the plaintiff and to various rulings made on the trial. The defendant does not question that the decision rendered by this court on the first trial remains the law of the case until it is finally disposed of. Its claim is that the evidence given on the second trial differs substantially from that given on the first; so that the case as now presented is not within the former decision of the court, nor within the authorities then relied upon. [1] The evidence to be examined and compared in disposing of this claim is that tending to prove a promise of the defendant which is relied upon to show that the plaintiff did not voluntarily assume certain known risks attending his work on a platform from which cars were supplied with ice. The defendant contends that the complaint and assurance shown in the first trial were confined to the want of a railing, while the evidence in the second trial relates to a general objection and undertaking, that the former decision is to be interpreted and measured by the case as then presented and the authorities cited in support of it, and that the doctrine relied upon, as uniformly applied, extends only to promises based on some specific complaint. The The transcript of the former trial is not among the papers submitted, and we turn to the opinion for a statement of the complaint and undertaking as then presented. opinion states that the plaintiff was hired by the defendant's foreman and manager to ice cars from the defendant's icehouse; that after talking over the terms of his employment, and before beginning work, plaintiff told the manager that he had seen the work done on the platform where he was to work, "and that he regarded it as a careless place to work, unless a train of cars stood in front of the platform, and that he hesitated about taking the employment," and that the manager thereupon said: "You never mind the [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 388-393, 395–398; Dec. Dig. platform; if anything happens to you up 129.] Exceptions from Orleans County Court; E. L. Waterman, Judge. Case by Herbert L. Dailey against Swift & Co., a corporation. There was a verdict and judgment for plaintiff, and defendant excepted. Judgment affirmed. Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ. Grout & Grout and Young & Young, all of Newport, for plaintiff. Clarke C. Fitts and Hermon E. Eddy, both of Brattleboro, for defendant. there it will be made all right;" that while mained as it was, "without any guard or the plaintiff worked there the platform rethe danger of a servant's falling off, in case railing on its east side to obviate or lessen of accident, when engaged thereon in such work." In developing the questions in the case, it was said that, unless the plaintiff voluntarily assumed the risk consequent on the known condition of the platform, the defendant was bound to exercise reasonable care to make the place reasonably safe for the work; that on the evidence presented it was for the jury to determine "whether the plat For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes form, without any guard or railing on its | work on the platform, if a plank broke and east side to prevent a servant from falling he fell through, or if he slipped on the platoff when performing such work, was a rea- form by reason of its being icy, but that, if sonably safe place for that purpose, and, if ice fell against him there, that would not be not, whether this was due to defendant's the fault of the platform. negligence"; that, inasmuch as the plaintiff did not claim but that he had full knowledge and appreciation of the dangers incident to the structural condition of the platform in the respect named, the important, and perhaps the sole, question in this branch of the case was: "Did he voluntarily encounter the risk, within the meaning of the maxim, 'Volenti non fit injuria'?" It now appears that the plaintiff was first hired for this work by a foreman named Benjamin, and worked under this engagement about 12 years, and that after leaving the employment for a time he was hired again by a foreman named Pinney, and then continued to work until the acci dent, which occurred about 6 years later. On the first trial the plaintiff testified regarding the first hiring only; no reference being made during the trial to a second engagement. On the second trial the plaintiff's testimony regarding the first hiring was offered and received because of a reference made to that hiring in reaching the later agreement with Pinney. The transcript of the testimony given by the plaintiff on the second trial contains the only evidence we have of a complaint and undertaking. The substance of his testimony in direct examination regarding the first hiring was that he said to Benjamin that it looked dangerous up there on the platform without any railing or any cars there, and that Benjamin said: "Never mind that; go ahead, and, if anything happens to you, you will be taken care of." As to the second hiring, he testified that, when Pinney asked him to go back, he told him the platform was a dangerous place and he had got tired of it, but finally said he would go back if he could have his old job the same as he had it before, that Pinney asked what that was, and he told him that if anything happened to him on the platform he was to be taken care of, and that Pinney said, "That is all right; if that is all, go to work." In cross-examination plaintiff testified that his understanding from the first agreement was that, if he should fall off there by reason of there being no protection, the company would take care of him, that both contracts were the same, and that there never was an understanding that a rail should be put there. On being asked to state in his own way the talk with Pinney, he gave it substantially the same as in direct examination, except in omitting his reference to the platform as a dangerous place, and then said in reply to specific inquiries that there was no talk with Pinney about the danger of falling off the platform, that he understood he was to be taken care In its charge the court referred to the plaintiff's evidence as tending to show that at the time he entered the defendant's employment the defendant's foreman told him, in substance, that if anything happened to him up there-meaning on the platform-it would be made all right, or that he would be taken care of. The following special inquiry was submitted to the jury, and received an affirmative reply: "Did the defendant's foreman agree with the while working on the platform, he would be takplaintiff that, in case the plaintiff was injured en care of as claimed by the plaintiff?" So it appears that the case was submitted to the jury, and was disposed of by them, on the theory that the promise of the defendjury received in doing his work on the platthat this was in accordance with the evidence form by reason of its unsafe condition, and and claim of the plaintiff. But the opinion disposing of the case as first tried puts it upon the ground of an assurance against the danger resulting from the want of a railing, and its statement of the conclusion of the court is as follows: ant was a general assurance against any in There seems to be no doubt "that the assurance of the defendant's foreman and manager to the plaintiff at the time the contract was made is evidence of much weight relevant to the the risk incident to his work on the platform, question whether the latter voluntarily incurred and that this question, on all the evidence, was for the jury to determine." The question is whether the change in the evidence presents a material difference as regards the application of the rule concerning the voluntary assumption of risks. It is clear that the risk arising from the want of a railing is covered by the broader assurance testified to on the second trial. But the defendant contends that the unlimited character of the undertaking as then presented renders it ineffective as evidence of the nonassumption of the particular risk complained of. It is claimed that an undertaking which does not refer to any specific defect is not within the terms or reason of the rule relied upon. The argument is that, when the established rule is complied with, the master has his attention directed to the particular defect and danger, and is thus given an opportunity to relieve himself from the additional liability by undertaking to make the required repair, and that the servant's relief from the assumption of the risk arises from the fact of this undertaking, and continues only for such time as may reasonably be allowed for making the repair. The defendant asserts that the decisions cited in support of our previous judgment determine nothing in advance of the proposi for the plaintiff upon the case now presented. | with Benjamin was objected to on the ground But the fundamental requirement of the rule as stated is no more wanting in the present case than it was in the case as first tried. The promise as presented in the evidence of both trials was, not to make a repair, but to compensate the plaintiff for any injury he might sustain from the want of it. The complaint, whether general or special, is nothing unless followed by an undertaking. To sustain the defendant's claim, the difference in the undertaking must be one having a material hearing upon the question of voluntary assumption. It must doubtless be considered that the present case as determined by the findings of the jury differs in its facts from the case previously decided. But we think the change in the facts is not such as to take the case out of the principle of the former decision. The plaintiff's injury was due to a defect which was existing and obvious at the time of the agreement, and which had continued without interruption from the time of the agreement to the time of the accident. The risk arising from the want of a railing, although not mentioned in terms, was covered by the undertaking as now shown. The undertaking in this case, as in the last, was a promise to compensate, and this promise is to be considered with reference to its operatión as an inducement to the plaintiff. It must be said upon the case as now presented, as was said in disposing of the case as previously tried, that the plaintiff's testimony was evidence tending to show that he did not voluntarily assume the risk of working on the platform without the protection of a railing. [2] The defendant contends that its motion for a verdict should have been granted on the ground that the evidence did not support the declaration. The counts relied upon proceed upon the ground that the defect was unknown to the plaintiff; while the evidence shows that he knew of it, and appreciated the danger attending it, and required a promise of compensation if damage resulted. It is true that a recovery, either on the case shown by the allegations, or on that shown by the proof, would be on the ground that the plaintiff did not voluntarily incur the risk. But incurring a risk through ignorance of its existence and accepting a known risk on a promise of compensation are different matters, and a claim on either ground must be inconsistent with a claim on the other. We think the variance shown here is material. [3] But it is apparent from the record that the matter not alleged was fully litigated, and, although the plaintiff's evidence of an agreement came in under objection, this court may, in its discretion, permit an amendment of the declaration to correspond with the proof. Chaffee v. Rutland Ry. Co., 71 Vt. 384, 45 Atl. 750. that the first employment was by Swift & Co., "the whole corporation," and that the second employment was by Swift & Co., of Maine, a different corporation. This evidence was not offered under any claim that the agreement made with Benjamin was in force at the time the plaintiff received his injury, but solely as explanatory of the plaintiff's talk with Pinney. The only argument made against its admissibilty, other than that relating to the claim of variance, is based on the change of ownership. This objection does not make against its admissibility for the purpose stated. The declaration having been amended, judgment is affirmed, but without costs in this court on these exceptions. In an action on the bond of a contractor for the construction of a bridge, a question to an expert witness on the issue as to the materiality would be a stable structure if, among other of an alteration of plans, whether the bridge things, an old abutment indicated on an exhibit did not extend to the depth indicated on plans, was immaterial was objectionable, since it whether the foundation of the abutments was correctly shown on the plans, while the question suggested to the jury that the condition of the abutment had not been correctly placed before the contractors before they made their bid. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. 553.] 4. HIGHWAYS 95 CONTRACTS-EMPLOYÉS "CHIEF ENGINEER"-"CONSULTING ENGINEER.' In an action by the state on the bond of a bridge contractor, the ruling of the court that the consulting engineer is just as much a repre[4] The evidence of the agreement made sentative of the state board of public roads as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the chief engineer is improper in the absence OF EVIDENCE. 20-ACTIONS-ADMISSIBILITY In an action on the bond of a bridge contractor, evidence as to what the contractor had paid out for labor was immaterial on the issue of the amount of work done. [Ed. Note.-For other cases, see Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. 20.] 6. BRIDGES OF EVIDENCE. 20-ACTIONS-ADMISSIBILITY In an action by the state on the bond of a bridge contractor, testimony as to delivery by the contractor of materials on the site which were left there and not paid for by the state is immaterial. [Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. 20.] Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge. Action by the State against E. J. Doyle & Co. and another. Judgment for defendants, and plaintiff excepts. Exceptions sustained in part, and case remitted to superior court for new trial. Mr. Rice: He has put in what his report shows as to what work was done. He is now asking him what it cost him. The Court: The estimate you put in shows the amount for construction. Mr. Lynch: They put in 325 for construction in his chief testimony. The Court: So much for material and so much for construction. Mr. Rice: We put it in at their request saying they put in first an estimate that wasn't an accurate estimate, and that was put in to correct the record. The Court: I think the testimony is relevant The Court: It has a bearing. Pages 589, 595, 596 of the transcript: * * Q. Mr. Doyle, have you any memoranda which would enable you to state accurately as to how much money the state of Rhode Island has paid you on account of the different materials furnished? A. I have. The state has paid on piles. * Q. Can you state upon what materials delivered on the work the state has paid no money whatever? A. I can. Q. Will you please state the amount of the materials delivered by you upon the Warren Bridge contract, on which the state of Rhode Island has furnished no money? Mr. Rice: I object to reading from this document; also we are going into the question of damages on that. Mr. McCall: No; it is a breach of the condition of the bond on the part of the plaintiff. The Court: It is necessary to state when it was delivered so as to show when the payments The following portions of the transcript were due as I read the specifications. Please are referred to in the rescript: Page 429 of transcript: Mr. Rice: I object to the answer that he was going to give to this question. Mr. Denman is not an officer of this board; he was merely a consulting engineer. They consulted with him when they saw fit, and took such advice from him as they saw fit, and in no way binds the state board of public roads and any conversation with Mr. Denman I object to. Mr. McCall: I am asking him if he had a conversation with reference to cement. Here is the consulting engineer introduced to Doyle by the chief engineer, and I want to show what he Isaid with reference to the cement. The Court: I think that is perfectly proper. It says on the specifications he was the consulting engineer, and he was introduced by the chief engineer. Mr. Rice: This board is only bound by its engineer or engineers. Anything Hussey or Bristow told this man I can't object to, but simply because a man is a consulting engineer or an attorney it doesn't make him an officer there as principal. He gives advice, and the board can take his advice or leave it. The Court: The consulting engineer is just as much a representative of the board as the chief engineer. I will permit the question. Plaintiff's exception noted. Page 580 of transcript: Q. Mr. Doyle, have you any means of ascertaining how much money was paid out by you for labor from July 1, 1912, to October 23, refer to the specifications under which you claim it. Mr. Rice: Payments were only made on the engineer's estimate, and not on his. * Q. Can you state how much material was delivered there and the value of that upon which nothing was paid to you by the state? A. I PER CURIAM. This is an action of debt on a bond brought by the state of Rhode Island and Providence Plantations against Edward J. Doyle and Duncan V. R. Johnson, both of the city of Albany, in the state of New York, partners in business under the name of E. J. Doyle & Co., as principals, and the Title Guaranty & Surety Company, a corporation organized under the laws of the state of Pennsylvania, as surety. It is in evidence that under date of July 1, 1912, said partners entered into a written contract with the state of Rhode Island to build a reinforced concrete bridge over Warren river between the towns of Barrington and Warren, in accordance with the plans and specifications attached to and made part Mr. Rice: I object as wholly immaterial to of the contract, and to complete the work this phase of the case. Mr. Lynch: They put in the question of the within 120 days from said July 1st. Accomestimates, and we have a right to put in evi-panying the contract was an indemnity bond dence as to the payments. of the same date for $29,600 with said part 1912? ners as principals and said surety company as surety, which, after reciting that the contract was made part of the bond, contained the condition that: If the principals should "well and truly indemnify and save harmless the said obligee [ from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions of the said contract on the part of said principals to be performed then this obligation shall be void; otherwise to remain in full force and effect." The bond contained other conditions and provisions which it is not now necessary to recite. The new was an iron bridge of a total length of about 125 feet, supported at its ends by stone abutments, and at its middle point by a pier. On the westerly side it was approached by a causeway of considerable length extending some distance into the river. This causeway was of earth retained and supported at the end by the west abutment, and on the sides by stone walls. On the easterly side the bridge was approached by a causeway similar in its construction to the westerly causeway, but considerably shorter. bridge was to consist of three arches, and was to be supported by a westerly abutment on the Barrington side, and an easterly abutment on the Warren side, and two piers in midstream. The center arch was 67 feet in the clear at mean high-water mark, and the two shore arches each 62 feet in the clear at the same mark. The end of the old causeway on the Barrington side was near the location of the proposed new west pier. The westerly arch was to extend from this west pier westerly over the old causeway to the point where the new westerly abutment with granite facing was to be constructed of re The declaration charges 17 distinct breaches of the contract, although some of them seem to be different ways of stating the same breach, and alleges $20,000 as the resulting damages. Certain of these charges allege incompetence on the part of the contractors, failure to perform portions of the work in accordance with the contract, and failure to furnish proper materials to carry on the work with diligence according to the instructions of the engineer in charge; but the alleged breaches especially relied on appear to be the failure to complete the work in 120 days, to wit, by October 29th, and the aban-inforced concrete 14 feet thick. Underneath donment of the work on November 7th. To this declaration the defendants E. J. Doyle & Co. filed nine pleas, namely: Non est factum; nil debet; non damnificatus; not guilty as to all alleged breaches; nonpayment of monthly installments due for work under the contract; that plaintiff ordered discontinuance of work on November 7th; that plaintiff forbade construction of the bridge according to contract; that plaintiff changed location of bridge, and improperly interfered with and delayed the performance of the work. The surety company filed eleven pleas, nine as above, and two others charging plaintiff with making new contracts with the contractors as to the constructing of the bridge, first on July 22d, and secondly on August 2d. The cause went to trial on these issues. As to several of them the evidence was sharply in conflict. The plea particularly relied upon appeared to be the alleged alteration in the location of the bridge. When the evidence was all in, on motion of the defendants the court directed a verdict in their favor to which the plaintiff excepted. The case is before this court on its bill of exceptions, which contains, besides the exception to the direction of a verdict, 30 others taken in the course of the trial to rulings of the court as to the admission and exclusion of evidence. The exception to the action of the court in granting the motion to direct a verdict will be considered first, because it raises the most important question. As preliminary thereto, it will be convenient to refer briefly to the terms of the contract and to the conditions attending its performance. When the contract was entered into there was already a bridge over the Warren river. It this westerly arch the old causeway was to be removed in order to provide a wider passage for the ebb and flow of the tides. On the Warren side the old easterly abutment was to remain. Up against and west of it was to be constructed a new reinforced concrete abutment 8 feet thick with granite fac ing on which the eastern end of the new bridge was to rest. The contract required the contractor to construct and maintain while the work was in progress a temporary bridge as described in the specifications. While it is stated in the specifications that "these specifications contemplate the removal of the old bridge and so much of its foundation and approaches as may be necessary, and the construction of a new, reinforced concrete bridge and its approaches, complete and ready for traffic," and while the plans show that some work on the approaches was contemplated, it is agreed by the parties to this action that the contract of July 1st only covers in its constructive work the new bridge, and did not include work on the approaches. In other words, the construction work called for by the contract was confined to the erection of a bridge with its supports 222 feet over all as shown by the plans. While there is much conflict of testimony as to some of the issues, it is entirely clear that the contractors not only did not complete the bridge within the 120 days fixed therefor in the contract, but, in fact, had only performed during that time a small percentage of the work required in constructing the bridge. Paragraph 81 of the specifications provides that: "Each bidder shall name in his bid a certain definite number of days in which he will agree to complete the work outlined. He will be held |