tilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N. W. 551; and O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S. W. 503; and in none of these cases, except O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 21 S. W. 503, and Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N. W. 551, was the defense of assumption of risk insisted upon and discussed. The defense applied, considered, and determined in each of them was contributory negligence, and the distinction between the two defenses was not argued, considered, or determined. The opinions in these cases are not, therefore, determinative of the issue. In the opinions of the courts in O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S. W. 503, Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N. W. 551, and Thorpe v. Missouri Pac. R. Co., 89 Mo. 650, 653, 2 S. W. 3, 58 Am. Rep. 120, and in some of the text-books cited the two defenses of assumption of risk and contributory negligence are confused or treated as interchangeable, and it is either assumed or stated that a servant can assume no risk the danger of which is not so imminent that no prudent person would continue in the em ployment and take the risk of the injury likely to result from it. But in other and later decisions the Supreme Courts of Minnesota and Missouri have clearly disregarded the theory that assumption of risk and contributory negligence are identical, and have expressly declared that by entering and continuing in the service an employé assumes not only such risks as are ordinarily incident to the employment, but also such extraordinary risks as become apparent to the employé by ordinary observation, or have been discovered and incurred without complaint, whether the danger from them was so imminent that no prudent person would incur it or not. Smith v. Railroad Co., 42 Minn. 87, 43 N. W. 968; Berger v. Railway Co., 39 Minn. 78, 38 N. W. 814; Devitt v. Railroad Co., 50 Mo. 302, 305; Epperson v. Postal Tel. Co., 155 Mo. 346, 372, 50 S. W. 795, 55 S. W. 1050; Roberts v. Missouri & Kansas Tel. Co., 166 Mo. 370, 379, 66 S. W. 155; Steinhauser v. Spraul, 127 Mo. 541, 562, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441; Fleming v. St. Paul & Duluth R. Co., 27 Minn. III, 114, 6 N. W. 448; Clark v. St. Paul & Sioux City R. Co., 28 Minn. 128, 9 N. W. 581; Greene v. Minneapolis & St. Louis R. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; Wilson v. Railway Co., 37 Minn. 326, 33 N. W. 908, 5 Am. St. Rep. 851.

It is said that if, by entering or continuing in the service, an employé may assume the risk of a defect which arises from the violation of the duty of the master to exercise ordinary care to provide a reasonably safe place or reasonably safe appliances, the master may be in large part relieved from the discharge of this duty, and may be led to furnish more defective places and appliances than he otherwise would do, and that for this reason the doctrine of assumption of risk ought not to be permitted to apply in cases in which the danger is not so imminent that prudent persons would not incur it. The answer to this contention is: (1) That the servant is constantly at liberty to accept or reject the employment, and may do so at any time in case the wages do not in his opinion compen

61 C.C.A.-31

sate him for the hazards as well as the work of his avocation; that he ought in the first instance to assume the known or obvious risks of the employment, because his constant use of the place and appliances necessarily makes him more familiar with them than in the nature of things his master or inspector can ordinarily be; and (2) that by a simple complaint to his employer he may relieve himself from the assumption of the risk for a reasonable time to enable the master to remove the defect. But discussion here of the question what the rule of law upon this subject ought to be will prove fruitless if that rule is already established by controlling authority, and the question whether or not it has become thus settled will, there fore, first be considered. Is it the law of assumption of risk declared or sustained by the decisions of the Supreme Court which are controlling here, that the risks which may be lawfully assumed are those only from which the danger is so imminent that no prudent person would incur it? Is it the law generally adopted by the federal courts, and usually applied by the courts of the states? If it is, many courts have misconceived this rule, and the books are full of long lines of erroneous decisions upon this subject.

The danger from the negligence of fellow servants is not so imminent that persons of ordinary care and prudence will not and do not incur it, and yet the Supreme Court and the courts of America and England generally agree that, in the absence of statutory provisions to the contrary, an employé who, with others, enters the service of a common master, assumes the risk of their negligence. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. The danger from unblocked frogs upon a railroad is not so imminent that employés of ordinary care and prudence would not and do not engage and continue to operate trains over them, and yet the Supreme Court and other courts hold that such servants assume the risk of the injuries which they may entail. Southern Pac. Co. v. Seley, 152 U. S. 145, 155, 14 Sup. Ct. 530, 38 L. Ed. 391; Appel v. Buffalo, etc., R. Co., III N. Y. 550, 19 N. E. 93; Gillin v. Railroad Co., 93 Me. 80, 86, 44 Atl. 361; Wood v. Locke, 147 Mass. 604, 18 N. E. 578; Mayes, Adm'r, v. Chicago, R. I. & P. Ry. Co., 63 Iowa, 563, 14 N. W. 340, 19 N. W. 680. The danger of injury from low bridges on railroads is not so grave that servants of ordinary prudence and care would not and do not engage and continue to operate railroads through them, and yet they assume the risk of the injuries which result from these bridges. Myers v. Chicago, St. P., M. & O. Ry. Co., 95 Fed. 406, 407, 37 C. C. A. 137, 138; Brossman v. Railroad Co., 113 Pa. 490, 6 Atl. 226, 57 Am. Rep. 479; Smith v. Railroad Co., 42 Minn. 87, 43 N. W. 968; Devitt v. Railroad Co., 50 Mo. 302, 305 The danger of injury from working on the greasy floor of a packing house, or from depressions in cement floors, is not so grave that persons of ordinary prudence would not and do not engage and continue to work upon them, and nevertheless the risk of such injuries. is assumed by the servants who engage in the employments. Cudahy Packing Co. v. Marcan, 45 C. C. A. 515, 517, 106 Fed. 645, 647; Kleinest v. Kunhardt, 160 Mass. 230, 35 N. E. 458; Hoard v. Blackstone Mfg. Co., 177 Mass. 69, 71, 58 N. E. 180. The danger of in

jury from tending the revolving knives of a relishing machine (Bohn Mfg. Co. v. Erickson, 5 C. C. A. 341, 343, 55 Fed. 943, 945), from swinging a loaded trunk from one car to another by means of a strap attached to it (Gowen v. Harley, 6 C. C. A. 190, 197, 56 Fed. 973, 980), from loading marble slabs upon their edges upon a wagon and drawing the wagon along the street (Motey v. Pickle Marble & Granite Co., 74 Fed. 155, 158, 20 C. C. A. 366, 369), from using a plugged iron gas pipe, rather than a wooden bar, to tamp dynamite into drilled holes (King v. Morgan, 48 C. C. A. 507, 511, 109 Fed. 446, 450), were not so imminent that prudent servants familiar with the duties of these various avocations would not and did not engage and continue to use the defective articles, and yet this court has held in all these cases that these servants assumed the risks of the injuries which resulted from them. All these decisions are inconsistent with the theory submitted to the jury in this case for their guidance, and expressed in the opinion of the majority of this court in Southern Pac. Co. v. Yeargin, and the decision in King v. Morgan was rendered subsequent to that in the Yeargin Case, so that the later opinion, as well as the earlier opinions of this court, are not in accord with the charge given to the jury by the court below. Are all these decisions wrong?

The doctrine of assumption of risk is placed by the authorities and sustained upon two grounds. That doctrine is that, while it is the duty of the master to exercise ordinary care to provide a reasonably safe place for the servant to work and reasonably safe appliances for him to use, and while, unless he knows or by the exercise of reasonable care would have known that this duty has not been discharged by the master, he may assume that it has been, and may recover for any injury resulting from the failure to discharge it, yet he assumes all the ordinary risks and dangers incident to the employment upon which he enters and in which he continues, including those resulting from the negligence of his master which are known to him, or which would have been known to a person of ordinary prudence and care in his situation by the exercise of ordinary diligence. The first ground upon which this rule of law rests is the maxim, Volenti non fit injuria. A servant is not compelled to begin or continue to work for his master. Ordinarily, he does not work for him under a contract for a stated time. He is at liberty to retire from his employment, and his master is free to discharge him, at any time. The latter constantly offers him day by day his wages, his place to work, and the appliances which he is to use. The former day by day voluntarily accepts them. By the continuing acceptance of the work and the wages he voluntarily accepts and assumes the risk of the defects and dangers which a person of ordinary prudence in his place would have known. No one can justly be held liable to another for an injury resulting from a risk which the latter knowingly and willingly consented to incur. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 161, 29 N. E. 464, 31 Am. St. Rep. 537; Leary v. Boston & Albany Railroad, 139 Mass. 580, 2 N. Ê. 115, 52 Am. Rep. 733; Buzzell v. Laconia Mfg. Co., 48 Me. 113, 77 Am. Dec. 212; Mundle v. Mfg. Co., 86 Me. 400, 407, 30 Atl. 16.

The second ground upon which assumption of risk is based is that every servant who enters or continues in the employment of a master without complaint thereby either expressly or impliedly agrees with him to assume the risks and dangers incident to the employment which a person of ordinary prudence in his situation would have known by the exercise of ordinary diligence and care, and to hold his master free from liability therefor. Thus a master employs a servant to tear down or repair a building that is obviously in danger of falling upon the workman. The latter perceives the dangerous character of the place, and agrees upon the wages he will accept to perform it. The building falls upon, and injures him. He cannot recover of his employer, because he willingly assumed the risk. Another employs a servant to feed crude rubber between revolving rollers, and in pushing the material through the rollers his hand is caught and crushed. He cannot recover for his injury, because he voluntarily assumed the risk which the rollers and their use entailed. Sullivan v. Simplex Electrical Co., 178 Mass. 35, 39, 59 N. E. 645A third employs a servant to paint hatchets under a rack upon which they are placed to dry. During his employment this rack which safely held the hatchets is removed, and a new one is substituted for it which is dangerous because the jar sometimes dislodges the hatchets and causes them to fall upon the workman below. Nevertheless the servant continues to paint beneath them. A hatchet falls upon and injures him. He cannot recover of his master for the injury, because he has voluntarily assumed the risk; and this is none the less true, says Mr. Justice Holmes, that fear of loss of his place induced him to stay. Lamson v. American Axe & Tool Co., 177 Mass. 144, 145, 58 N. E. 585, 83 Am. St. Rep. 267. In the first case the danger may have been so imminent that a person of ordinary prudence would not have entered upon or continued in the employment. But in the two other cases it certainly was not of that character. The truth is that, while assumption of risk and contributory negligence both apply to prevent a recovery in cases in which the servant has knowingly and willingly exposed himself to dangers too imminent for prudent persons to incur, they are neither identical in effect or coincident in extent, and the latter has no application and constitutes no defense in that great majority of cases in which assumption of risk is an impregnable bar to a recovery where prudent persons assume the obvious dangers of their employments which are neither imminent nor great. Assumption of risk is the voluntary contract of an ordinarily prudent servant to take the chances of the known or obvious dangers of his employment and to relieve his master of liability. therefor. Contributory negligence is the causal action or omission of the servant without ordinary care of consequences. The one rests in contract, the other in tort. Contributory negligence is no element or attribute of assumption of risk. The latter does not prevail because the servant was or was not negligent in making his contract and in exposing himself to the defect and danger which injured him, but because he voluntarily agreed to take the risk of them. No right of action in his favor in such a case can arise against the master, because the latter violates no duty in failing to protect the serv

ant against risks and dangers which the latter has voluntarily agreed to assume and to hold the former harmless from.

This clear distinction between assumption of risk and contributory negligence has been repeatedly announced and constantly maintained in the federal courts and in most of the courts of the states. The law upon this subject which controls this case and all cases of this character in the federal courts is stated in Washington, etc., R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235, in the quotation which follows, and, so far as our investigation has extended, the rules of law thus announced have never been disregarded' or modified by that court in any subsequent decision:

"Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply the best and safest or newest of those appliances, for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employé or servant. But if the employé knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And further, if the employé himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer."

Here the two defenses of assumption of risk and contributory negligence are separately stated, and the first failed because the servant "did not know that the belt in which he was caught had been recently and perhaps imperfectly repaired," and "was wholly unaware of the danger attendant upon putting on the belt by hand," while the defense of contributory negligence failed because the defendant failed to satisfy the jury that the servant was not exercising ordinary care in placing the belt upon the pulley.

In Union Pacific Ry. Co. v. O'Brien, 161 U. S. 451, 454, 456, 16 Sup. Ct. 618, 40 L. Ed. 766, the Supreme Court sustained a refusal to submit an instruction to the jury upon the express ground that it confused these two distinct defenses, assumption of risk and contributory negligence. Its words were:

"The second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an employé in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances."

In Choctaw, Oklahoma & Gulf Railroad Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed. -, a case in which the opinion was filed November 2, 1903, the Supreme Court says:

"The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer's negligence in per