2. But the element of knowledge as to the real position of the side-track with reference to the awning, and as to the exact nature and degree of the peril therefrom by the deceased when he entered the employment, changed the nature of his employer's obligation to him. The employer had no right to subject him to an unnecessary peril without his consent; but it is well settled in the courts of this country and England that if a servant chooses to enter into an employment involving dangers of personal injury which the master might have avoided, he takes upon himself the risk of all the hazards incident to the employment the existence and nature of which were known to him when he entered the service, and which he had no reason to expect would be obviated or removed. If a servant accepts service with a knowledge of the position of structures from which he has occasion to be apprehensive of injury, he cannot require the master to make changes so as to obviate the danger, or hold him liable for damages in case of injury. These views are maintained in the following cases: Fleming v. St. P. & D. R. R. Co., 6 N. W. Rep., 448; Gibson v. Erie R. R. Co., 63 N. Y., 449; Dillon v. U. P. R. R. Co., 3 Dill., 320; Owen v. N. Y., etc., R. R. Co., 1 Lans., 108; Hayden v. Southville Manuf'g Co., 29 Conn., 548; Ill. Cent. R. R. Co. v. Welch, 52 Ill., 183; Davitt v. Pacific R. R. Co., 50 Mo., 302; Baylor v. Delaware, etc., R. R. Co., 40 N. J. L., 23; Holmes v. Clarke, 7 Hurlstone & Norman, 937; Woodley v. Metropolitan Dist. R. R. Co., 2 Ex. Div., 384. With respect to the knowledge by the deceased of the particular peril from which the accident happened, the following uncontroverted facts appear from the testimony: The deceased was first in the employment of the company from August to November, 1878, as a car repairer and assistant switchman at Shakopee, and while so employed it was his duty and he frequently did assist in moving freight cars upon this elevator track under the awning. He knew the position of the awning was such that if he stood erect upon the running-board on a car passing under it he would be struck; he had been observed to stoop when passing under it, and cautioned his fellow-servants against the danger. He entered the service of the defendant again in January, 1879, in precisely the same employment, and continued in it till the accident. Immediately after the accident he stated that the roof hit him, and knocked him off the car, and in answer to a question if he did not know the roof was there, he said, "Yes; but I did not think of it at the time." It does not appear that anything occurred to distract the attention of the deceased, or that he was interfered with in any respect by others, or that he stood, by the direction of any one, or by the force of any unusual circumstances, where he did when he was struck. The accident, so far as the evidence dis closes, was the result of inattention to a known peril on the part of deceased. Having entered the service with full knowledge of its existence and nature, he must be held to have taken the risk of injury from it on himself, and to have waived any obligation on the part of the defendant, and so far as he was concerned, either to remove the peril or to respond in damages for injuries from it. The verdict cannot be sustained on the uncontroverted facts appearing from the testimony, and order denying the defendant's motion is reversed, and a new trial granted. See Michigan Central R. R. Co. v. Smithson, 1 Am. & Eng. R. R. Cas., 101; Philadelphia, etc., R. R. Co. v. Shertle, ante, 158. WELLS, Adm'x, etc., v. BURLINGTON, CEDAR RAPIDS & NORTHERN R. R. Co. A bill of exceptions should fully identify the evidence and instructions desired to be made part of the record. Bill in this case properly struck out for failure in this particular. A party filing an additional abstract, supplying defects and omissions, will not be allowed to claim that the testimony is not presented by the abstracts. A party by remaining in employment where he is exposed to danger will be presumed to assent to the risks and hazards to which he is thereby exposed. Thus, where a brakeman six feet tall had for four years continued to brake upon a portion of a railroad where bridges crossed the track but five feet above the cars, so that riding on top the cars it was necessary for him to stoop to pass under them, held, that he would be deemed to have taken the risk of injury therefrom. Evidence held sufficient to show knowledge of such brakeman of the dangerous character of such bridges. The plaintiff is the administratrix of the estate of her deceased husband, Victor S. Wells, and prosecutes this action to recover the damages sustained by reason of the death of the intestate caused by the negligence of defendant while he was in its employment as a brakeman. There was a verdict and judgment for plaintiff. Defendant appeals. J. & S. K. Tracy, for appellant. Fred. Gilman and D. F. Gibson, for appellee. BECK, J.-1. At the term of this court held in October, 1880, at Dubuque, a motion made by plaintiff to strike from the record the bill of exceptions was sustained. On the day this order was made defendant moved the court to set it aside. The cause, with this motion and a motion of plaintiff to affirm the judgment, was continued to the December term, and defendant had leave, in open court, to file an amended abstract. At the December term plaintiff moved to strike defendant's amended abstract, filed November 13, 1880, in pursuance of leave obtained as aforesaid. The cause was thereupon continued until the March term, 1881, at Council Bluffs, with an order that all motions be submitted with the case. At the March term the cause, with the motions, was finally submitted for decision. The motions first demand our attention. The motion to strike the bill of exceptions is based upon the ground that it is a "skeleton bill," and does not sufficiently identify the evidence and instructions, which it was intended to present as parts of the record. Under the rule of Hill v. Halloway, 52 Iowa, 678, the bill of exceptions is not sufficient, as it fails to identify in any manner the evidence and instructions, the only proceedings referred to therein. If this bill of exceptions were to be depended upon alone to make the evidence and instructions a part of the record, we could not determine whether they were truly set out in the record. It merely directs the clerk to copy, as a part thereof, the evidence and the instructions given and refused, leaving for the clerk to determine what he shall copy, and giving no means of identification whereby he may be directed what papers he shall copy, and whereby errors, if he should make any, could be corrected. The true practice in preparing bills of exceptions is very simple, and leaves the clerk no opportunity for mistakes in preparing the transcript. The bill should identify the different papers intended to be made a part of the record, in something like the following manner: "Here clerk will copy evidence certified by the court, filed in this case and marked A.” "Here clerk will copy instruction given upon request of plaintiff, filed in this case and marked B," etc. A proper manner of identifying with certainty papers intended to be referred to in bills of exceptions will readily occur to the practitioner. We think the order sustaining plaintiff's motion to strike the bill of exceptions was rightly made, and the motion to set it aside ought to be overruled. 2. We are now required to consider plaintiff's motion to strike the amended abstract filed by defendant. This abstract is probably intended to set out more fully some parts of the testimony, and is especially designed to present the instructions given and refused, with the exceptions noted upon the margin thereof. It is not unusual to allow parties to file amended abstracts when they discover that their cases are not fully presented in the original abstracts. This, of course, is always done before the case is submitted, and at such times that the other parties will not be prejudiced thereby. The amended abstract of defendant was filed in ample time before the submission of the case for the plaintiff to present corrections or deny its statements. The motion to strike it is overruled. 3. Plaintiff moved to affirm the judgment of the court below upon the ground that after the bill of exceptions has been stricken out, nothing remains to show the evidence in the case or the errors in, and exceptions to, the rulings of the court below. We will proceed to consider the questions arising under this motion. September 1, 1880, before the first term at which the case appeared in this court, plaintiff filed with the clerk an additional abstract, correcting and making additions to the evidence presented in defendant's original abstract. It is not claimed by plaintiff that the original abstract and plaintiff's additional abstract do not present all the evidence in the case. Indeed, the inference is to be drawn from the act of plaintiff in correcting and adding to the evidence as set out in the original abstract, that she admits that all evidence is presented by the two abstracts. We have held that a party filing an additional abstract, purporting to supply defects and omissions in the original abstracts, cannot deny that all the evidence is before the court. Star v. City of Burlington, 45 Iowa, 87; Cross v. B. & S. W. R. R. Co., 51 Iowa, 683. Plaintiff, by his additional abstract, admits that the evidence was preserved in the court below, and presents additions to the testimony, which she inferentially admits set out, with the original abstract, all the testimony in the case. We will not permit her to deny, after making the admission, that the evidence is preserved in the court below, and that the parties, by their several abstracts, present all of it to this court. Parties to actions will not be permitted, in this manner, to change the grounds upon which they claim the judgment of the court, and deny what they have before admitted. The striking of the bill of exceptions does not take from the records the instructions and the exceptions thereto, for they are made a part of the record without a bill of exceptions. Code, § 2787. In the case before us the giving and refusing of the instructions, and the exceptions, are noted upon the margins. This is sufficient, without a bill of exceptions, to authorize this court to review the rulings of the court upon the instructions. Cadwalider v. Blair, 18 Iowa, 420; Phillips v. Starr, 26 Iowa, 349. We conclude plaintiff cannot deny that the evidence set out in the abstract is all the testimony in the case, and that the instructions and exceptions thereto sufficiently appear in the record without the bill of exceptions, all of which is properly presented by the abstract. The plaintiff's motion to affirm must, therefore, be overruled, and the cause must be considered upon its merits. 4. Under a rule of this court arguments filed with a clerk after a cause is submitted are not sent to the justices. The plaintiff's counsel did not file his argument until after the submission of the cause. In view of the fact that counsel may have been misled as to the time when the cause was set down for hearing, and of other circumstances, we think the rule ought not to be applied in this We have, therefore, required the clerk to supply us with all the arguments in the case, and we have given to all due considera case. tion. 5. The evidence tends to show that the plaintiff's intestate, who at the time was a brakeman in defendant's employment, was killed by being knocked from the top of a freight car, where he was in the discharge of his duty, by the timbers of a bridge over which his train was passing. It is shown that the bridge timbers were a little over five feet above the top of the car, while deceased was a man of more than six feet in height. The train was running about eight miles per hour at the time of the accident. The intestate had been employed as a brakeman for more than four years upon that part of the defendant's road whereon was the bridge at which the accident occurred, and other bridges of like construction and height; and, of course, had often passed over them. The defendant asked the court to instruct the jury to the effect that if they found the services of the intestate as brakeman upon the route where he was employed was hazardous and dangerous on account of the bridge being of insufficient height, of which he had knowledge while employed upon this part of the road, and he continued in defendant's services without objection, the law in such case is that he assumed the dangers incident to the services resulting from the bridge in question, and his administratrix, therefore, cannot recover on account of his death. The court refused to give this instruction. It should have been given. The rule of the instruction is announced in Perigo v. C., R. I. & P. R. R. Co., 52 Iowa, 276; Muldowney v. Ill. Cent. R. R. Co., 39 Iowa, 615; Kroy v. C., R. I. & P. R. R. Co., 32 Iowa, 357; Way v. Ill. Cent. R. R. Co., 40 Iowa, 341; Lumley v. Caswell, 47 Iowa, 159. The principles upon which the rule is based are well stated by Day, J., in Perigo v. C., R. I. & P. R. R. Co. Referring to the other cases above cited he uses this language: "The doctrine of these cases is that the negligence of the defendant in furnishing defective or improperly constructed machinery and implements is waived by remaining in the employment without protest or promise of amendment. The waiver of the negligence of the defendant places the case in the same position as though the defendant had not been negligent, and without the negligence of the defendant there can be no recovery. This waiver cannot be affected by the particular situation in which the employee may be placed, or the rapidity or promptness with which he may be required to act at the time of the accident. These questions may very properly bear upon the question of the contributory negligence of the employee, but they can have no bearing upon the question whether the defendant has been guilty of negligence about which the employee has a legal right to |