DODGE, J. (after stating the facts). 1. We find it impossible to agree with the court below in the conclusion that there was no evidence to go to the jury on the question of defendant's negligence. The testimony both of the plaintiff and of the witness Slocum tended to show that the forward portion of the train was driven against the rear part with such violence as could be accounted for only by negligence in the train hands, or defective apparatus. The testimony of both witnesses is that the shock of the collision was more violent than any either had known in the coupling of freight trains, of which both had much prior experience. Slocum placed the rate of speed of the backing train at four or five miles per hour, of which, however, he obviously could judge only by the violence of the collision. Plaintiff testified that the caboose was driven backward some thirty feet. True, defendant's witnesses very fully contradict any unusual violence; but for the purpose of nonsuit the evidence for defendant, at least such as merely raises a conflict with that for the plaintiff, is not to be considered. Lewis v. Prien, 98 Wis. 87, 73 N. W. Rep. 654; O'Brien v. Railroad Co., 92 Wis. 340, 66 N. W. Rep. 363; Kruse v. Railroad Co., 82 Wis. 568, 52 N. W. Rep. 755. 2. The question of plaintiff's contributory negligence, also, we think, should have been left to the jury. His knowledge, actual or imputed, of the likelihood of an immediate coupling, is by no means clear, though, of course, he must have known that such event would occur before very long. There is evidence tending to show that his stoppage in the aisle for conversation was but momentary. Again, the question is present whether his position was such as to render likely an injury if the coupling were made with ordinary cars, or was perilous only in the event, not to be anticipated, of a negligently violent one. The nonsuit was improper. Judgment reversed, and cause remanded for a new trial. NELSON v. SHAW. Supreme Court, Wisconsin, February, 1899. - MASTER AND SERVANT - DEFECT IN MASTER'S PRIVATE ROADPROMISE TO REPAIR - INJURY TO SERVANT THROWN FROM LOAD. — A teamster engaged in drawing tan bark over his employer's private road and aware of a defect therein from having passed over it many times, assumes the risk, but if the employer promises to repair the defect before the teamster will have occasion to pass over it again he may rely upon the promise, and is not precluded from recovering for injuries sustained by reason of the failure of the employer to repair, on the ground that the risk was assumed. FAILURE OF SERVANT TO INSPECT ROAD AFTER PROMISE OF MASTER TO REPAIR. - The plaintiff's duty did not require him to repair the defect though it was a matter of ordinary labor. He could rely upon the promise of the foreman to repair it and it was not contributory negligence for him to drive down the hill without first ascertaining whether the promise had been fulfilled, the defect not being so eminently dangerous as to require it. CONTRIBUTORY NEGLIGENCE. Whether the plaintiff was guilty of contributory negligence in driving down the hill while sitting on the load with the soles of his boots even with the front end of the load, with nothing for his feet to brace against, was for the jury. APPEAL from judgment, Circuit Court, Taylor County, in favor of defendant. FRAWLEY, BUNDY & WILCOx, for appellant. LOSEY & WOODWARD, for respondent. CASSODAY, Ch. J. This action was commenced September 4, 1897, to recover damages for personal injuries sustained January 25, 1895, by the plaintiff, while in the employ of the defendant as a teamster hauling tan bark from the lands described, for a distance of about eight miles, to the defendant's tannery at Rib Lake, by reason of an alleged defective private branch road way provided and used by the defendant and his employees in hauling such bark. Issue being joined, and trial had, the court, at the close of the testimony, directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff brings this appeal. It appears and is undisputed that this branch roadway was built to get the bark to the main road, and was from one-half to threefourths of a mile in length; that from the point where it connected with the main road it ran in a northeasterly direction, and was known as the "Mud Lake Branch;" that the portion of the roadway in controversy extended from its junction with the main road northeasterly; that at a point some fifteen to thirty-five feet from its junction with the main road this bark roadway began to ascend a hill for a distance of about 105 feet; that the descent in that distance was a few inches less than eleven feet. There is evidence tending to prove that at or near the foot of such descent there was a ditch and gully which existed in the traveled track, and extended at right angles to the traveled track; that the ditch and gully were partially concealed from the plaintiff by a log; that the front bob of the sleigh was precipitated into the ditch and gully with a quick, sharp jolt and plunge, and the plaintiff was violently thrown off the load, and injured; that the plaintiff had had considerable experience working in the woods, building logging roads, hauling logs and bark; that he had put in logs and repaired roads for that purpose; that he began to haul bark for the defendant November 22, 1894, and, after working continuously in hauling on other roads, began to haul bark on this Mud Lake branch six or seven days prior to the injury; that during that time he had passed over this road from eleven to thirteen times the last time about 7 A. M. of the day on which the accident happened, and that time particularly observed its condition; that on the evening before the accident the plaintiff told defendant's foreman about the existence of the hole at the bottom of the hill, and that it was dangerous, and that he would quit work if the defendant did not fix the road; that the foreman then said he would have it fixed; that the plaintiff then asked him when he would do so, and he then promised that he would have it fixed before the plaintiff came out with another load the next morning; that on the morning in question several teams were driven on this road, loaded with bark; that the leading team - Knickerbocker's was delayed at or near the intersection of the bark road with the main road by having its load, or part of it, fall off, which compelled the teams behind it to wait until it could be reloaded; that the plaintiff's team stopped for this reason just at the top of the hill described as being 105 feet long; that the plaintiff fastened his team at that place, and went across the lots to a shanty, to get a lunch, while waiting; that he remained there fifteen or twenty minutes, and returned the same way to his team; that he did not walk down the hill to the place where the men were reloading Knickerbocker's sleigh; that there was nothing on the side of the rack to hold it in place; that it was not bound on in any way; that the plaintiff sat on the middle of the load, with the soles of his boots even with the front end of the load, when the accident occurred. The question recurs whether the court was justified in taking the case from the jury. There is testimony tending to prove that the hole was about eighteen inches deep and one and one-half feet one way and some three feet the other way; and in fact that there were two holes near each other. The defendant's testimony tends to prove that there was no hole in or alongside of the road; that the only depression in the surface of the road was a creek running directly across it, not far from the bottom of the hill, in which the water was at times fourteen inches deep, and that this creek was frozen solid at the time in question, and that the ice and snow made the road perfectly level at that place. Of course, on this appeal, we must assume the evidence most favorable to the plaintiff to be true and undisputed. Kaples v. Orth, 61 Wis. 531, 21 N. W. Rep. 633. Upon such assumption two questions present themselves for consideration. The first is whether the plaintiff, after having passed over the road so many times, and knowing all about the alleged defect, did not assume the risk. We are all clearly of the opinion that he did, up to the time when the defendant expressly promised to repair the defect the next morning, and before the plaintiff would return with another load. Counsel contend that the plaintiff had no right to rely on such promise, but should have repaired the defect himself. This is put upon the theory that the repairing of the defect was not a matter of which the plaintiff had little or no knowledge, but a matter of ordinary labor, with which he was entirely familiar, like certain cases cited. Corcoran v. Gaslight Co., 81 Wis 191, 51 N. W. Rep. 328; Showalter z. Fairbanks, Morse & Co., 88 Wis. 376, 60 N. W. Rep. 257; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56. But we do not understand that the plaintiff's duty required him to repair the defect. If the defendant expressly promised to repair the defect before the plaintiff returned with his load, then we perceive no rule of law which precluded the plaintiff from relying on such promise. Ferriss v. Machine Works, 90 Wis. 541, 63 N. W. Rep. 234; Patterson v. Railroad Co., 76 Pa. St. 389; Wust v. Iron Works, 149 Pa. St. 263, 24 Atl. Rep. 291; Steel Co. v. Mann, 170 Ill. 200, 48 N. E. Rep. 417. Nor was the defect so imminently dangerous as to make it contributory negligence, as a matter of law, for the plaintiff to undertake to drive down the hill without first ascertaining whether the defendant had redeemed his promise to repair. Burnell v. Railroad Co., 87 Wis. 387, 58 N. W. Rep. 772; Schultz v. Lumber Co., 91 Wis. 626, 65 N. W. Rep. 498; Jensen v. Sawmill Co., 98 Wis. 73, 73 N. W. Rep. 434; Curran 2. A. H. Strange Co., 98 Wis. 598, 74 N. W. Rep. 377. The most serious question in the case is whether the plaintiff was not guilty of contributory negligence, as a matter of law, in driving down the hill while sitting on the load with the soles of his boots even with the front end of the load, and hence with nothing for his feet to brace against. But upon the whole evidence we are constrained to hold that the question of contributory negligence was for the jury. Kenworthy z. Town of Ironton, 41 Wis. 647; Simonds v. City of Baraboo, 93 Wis. 40, 67 N. W. Rep. 40. The appellant's brief is unnecessarily long, and does not comply with the rules, and hence only thirty-five pages of it should be taxed. The judgment of the Circuit Court is reversed, and the cause is remanded for a new trial. PIERCE v. TENNESSEE COAL, IRON AND Supreme Court, United States, February, 1899. MASTER AND SERVANT - AGREEMENT TO PAY INJURED SERVANT CERTAIN WAGES HIRING NOT FROM MONTH TO MONTH AND TERMINABLE AT OPTION OF MASTER. The plaintiff, while in the defendant's employ, was injured, and claimed that the defendant was liable, which the defendant denied. An agreement was made by both parties in order to settle the matter, that the plaintiff should receive certain supplies and be paid regular wages while he was disabled; this remained in force for six months, when another agreement was made after he had resumed work that the company should give him such work as he could do and pay him wages as before his injury, and this agreement was kept for a year, when in lieu of the previous agreements, a new agreement which recited the claim for damages and the two previous agreements, was made that his wages" from this date" should be a certain monthly sum and that he should receive certain supplies, and he, on his part, expressly released the company from all claims for damages for his injury. Held, that the last agreement was not a hiring from month to month, that was terminable at the pleasure of the company, but was a contract that bound the company to pay him the stipulated wages and to furnish him the supplies so long as his disability to do full work continued, and that if the company discharged him from its service without cause, he was entitled to elect to treat the contract as finally broken, and in an action upon the contract could introduce evidence as to his expectancy of life, and show that the injury was permanent, and in that event he was entitled to recover all that he would have received in the future as well as in the past if the contract had been kept. CERTIORARI to the Circuit Court of Appeals for the Fifth Circuit. This was an action brought January 22, 1892, in the Circuit Court of Jefferson County, in the State of Alabama, by Frank H. Pierce, a citizen of the State of Alabama, against the Tennessee Coal, Iron & Railroad Company, a corporation of the State of Tennessee, doing business in the State of Alabama, upon a written contract, signed by the parties, and in the following terms: "Pratt Mines, Ala., 4th June, 1890. Whereas, I, F. H. Pierce, while in the employ of the Tennessee Iron, Coal and Railroad Company, Pratt Mines Division, as a machinist, was seriously hurt by a trip of tram cars on the main slope of the mine, known as 'Slope No. 2,' and operated by the Tennessee Coal, Iron and Railroad Company, under circumstances which I claim render the said company liable to me for damages; but whereas, they disclaim any liability for said accident, or the injuries to me resulting from |