Finlayson, 16 Neb. 578, 20 N. W. 860, 49 Am. Rep. 724, where the same doctrine is announced.

In the case of Parker v. South Carolina & Ga. Railroad, 48 S. C. 364, 26 S. E. 669, 673, 676, the court held that an instruction was properly refused which declared "that an employé who works defective machinery, knowing the defects, assumes the risk, and if injured from such defect cannot recover, even if his employer knows it"; while it approved of an instruction, which was given by the trial court, to the effect that if, after working with machinery, a servant finds that it is unsound or defective to such an extent that a prudent person would not use it, then he would assume the risk of injury by using it under such circumstances.

Moreover, in Buswell on Personal Injuries, at section 207, the learned author says, with respect to defects in tools, machinery, and appliances which the servant has an opportunity to detect, that:

"The authorities are not agreed upon the question whether the employé assumes absolutely the risk of injury from apparent defects in machinery or appliances which are caused by the negligence of the master; but it is believed that the weight of modern authority is in favor of the rule that such injuries are not to be included in the ordinary risks of the employment, and that this rule is justified by sound reason. It is to be considered that the contract between the master and an employé is reciprocal, the obligation on the part of the master being to furnish suitable and safe means for doing the work; and this obligation, independent of any contract, rests as well on the duty which every member of the community is under, not to expose another to unnecessary danger."

Further on in the same section he remarks:

"It would seem to be unreasonable to say that the employé on his part contracts to take the risks of injury caused by the breach of the reciprocal contract on the part of the master, or that injuries caused by defects in the means furnished to the servant to do his work are in any just sense incidental to the employment, since the law justifies the servant in assuming that proper and sufficient appliances will be furnished him. It is apprehended, therefore, although there is much confusion in the expression of the rules on this subject in some of the cases, that the view of the law is to be accepted which holds that the whole question in such cases is whether or not the employé has been guilty of contributory negligence in continuing in his employment after he has discovered the existence of the defect."

And in Shearman & Redfield on the law of Negligence, at section. 211, it is said:

"The true rule, as nearly as it can be stated, is that a servant can recover for an injury suffered from defects due to the master's fault of which he had notice, if, under all the circumstances, a servant of ordinary prudence acting with such prudence would under similar conditions have continued the same work under the same risk; but not otherwise."

Relative to the decision of this court in King v. Morgan, 48 C. C. A. 507, 109 Fed. 446, to which some allusion is made in the majority opinion, this may be said, and the same remark may be made of the decision in Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391, that these cases were correctly decided upon the ground that the defective appliances, to wit, a tamping rod in one case, and an unblocked frog in the other, which occasioned the injuries complained of, were not only in use when the respective plaintiffs in those cases entered the employer's service, but they were implements which at that time were in general use by other persons and corporations engaged in a like business, as the plaintiffs well

knew. They formed, therefore, one of the ordinary risks of the employment which the plaintiffs assumed. Besides, as the master is not required to use only the latest and most approved tools and appliances, but may use such as are in common use by other people engaged in like employment and are regarded as reasonably safe, neither of the defendants who were proceeded against in those cases could properly be said to have been guilty of culpable negligence.

The defendant company having failed to perform its statutory duty of keeping the gearing of the forming machine covered, and the plaintiff below having been injured by reason of such neglect, I think, for the reasons already stated, that the trial court properly advised the jury that she might recover, unless the risk which was incurred by working in proximity to the uncovered gearing was so great and imminent that a prudent person of the plaintiff's age and in her situation would not have incurred it. In the case of Thomas v. Quartermaine, 18 Q. B. D. 685, 696, where the maxim, Volenti non fit injuria, seems to have been first prominently applied to an action. for personal injuries, Bowen, L. J., who wrote the majority opinion of the Court of Appeal, strongly intimates that the maxim in question cannot be invoked by an employer as a defense when, as in this case, it appears that he has neglected the performance of a statutory duty, in consequence whereof one of his servants has sustained injury. His language is as follows:

"The maxim, be it observed, is not 'scienti' non fit injuria, but 'volenti.' It is plain that mere knowledge may not be a conclusive defense. There may be a perception of the existence of the danger without comprehension of the risk, as where the workman is of imperfect intelligence, or, though he knows the danger, remains imperfectly informed as to its nature and extent. There may again be concurrent facts which justify the inquiry whether the risk, though known, was encountered voluntarily. The injured person may have had a statutory right to protection, as where an act of Parliament requires machinery to be fenced."

I am also of opinion that even on the theory on which the majority decision proceeds, namely, that where by the negligence of the master his servant has been exposed to a risk of injury that was neither great nor imminent, he may, by continuing at work with knowledge of the danger, be held to have consented or agreed to assume it, the decision of my associates is erroneous in holding as a matter of law, on the facts and circumstances of the case, that the plaintiff did voluntarily agree to assume the risk to which she was exposed by the admitted fault of the master, and in withdrawing that issue from the jury. When the decision in Thomas v. Quartermaine, supra, was first announced, it was assumed by many that as the result of that decision, when an employer succeeded, in a personal injury case, in showing that his servant, before being hurt, had used the defective tool or appliance which occasioned the injury, with knowledge of the defect, or had shown that he had worked in an unsafe place with knowledge of its insecurity and had on that account sustained injury, he was immediately absolved from all liability for his neglect, and that the courts must perforce declare, as a matter of law, that the servant had agreed to assume the risk. It was very soon discovered, however, by the English judges, that this doctrine was exceedingly unjust to employés, and that it would enable employers to shift the responsibility

for providing unsafe tools and appliances upon their servants. Accordingly, in the case of Yarmouth v. France, 19 Q. B. D. 647, 653, 657, the decision in Thomas v. Quartermaine was carefully analyzed, and it was ruled, with much emphasis, that the fact that a servant uses a defective tool or appliances, with knowledge of the defect, is not sufficient as a matter of law to warrant any court in holding that he agreed to assume the risk. Lord Esher, Master of the Rolls, who delivered the majority opinion in Yarmouth v. France, said, inter alia: "But does the maxim, Volenti non fit injuria, go this length, that the mere fact of the workman knowing that a thing is dangerous, and yet using it, is conclusive to show that he voluntarily incurred the risk? The answer to that depends, so far as this court is concerned, upon whether or not Thomas v. Quartermaine has so decided. * * * Taking the whole of that judgment together, it seems to me to amount to this: that mere knowledge of the danger will not do; there must be an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim, Volenti non fit injuria. If so, that is a question of fact. Here the judge of the court below has come to the conclusion that the moment it appeared that the plaintiff knew and appreciated the danger, and did not at once quit the defendant's employ, he came within the maxim, and was therefore, upon the authority of Thomas v. Quartermaine, disentitled to recover. He did not bring his mind to bear upon the motives which induced the plaintiff to act as he did, whether he relied upon the foreman's statement that the employer would be responsible in case of an accident, or whether he was influenced by the fear of being thrown out of employ if he disobeyed the foreman's orders. All that was for a jury, and the judge ought to have applied his mind to it."

In that case it was accordingly held that the servant might recover from his master, who had provided him with a vicious horse to be driven and used in the performance of his daily duties, although it appeared that the servant had continued to use the vicious animal long after he had become fully conscious of the fact that he was vicious and unfit to be used.. At all events it was decided that the lower court, upon this state of facts, was not authorized to say, as a matter of law, that he had assumed the risk and could not recover.

To the same effect was the decision in Thrussell v. Handyside & Company, 20 Q. B. D. 359, 364, where it was said by the court, inter alia:

"It cannot be said, where a man is lawfully engaged in work and is in danger of dismissal if he leaves his work, that he willfully incurs any risk which he may encounter in the course of such work, and here the plaintiff had asked the defendant's men to take care * * *. If the plaintiff could have gone away from the dangerous place without incurring the risk of losing his means of livelihood, the case might have been different; but he was obliged to be there; his poverty, not his will, consented to incur the danger." And in a still later case, Smith v. Baker, 1 Appeal Cases, L. R. (1891) 325, which was decided by the House of Lords, the highest judicial authority in England, the doctrine announced in Yarmouth v. France, supra, was reaffirmed. In that case it appeared that the plaintiff was employed to drill holes in a rock. A crane was set up in close proximity to the place where he worked, so that the arm of the crane, which was used to lift stones, swung the same over the plaintiff's head, and he was injured by a falling stone. The doctrine was invoked in that case that the danger incident to the situation where the plaintiff was put at work was obvious, and that by continuing to work in the presence of visible dangers the plaintiff had agreed to as

sume that risk. The House of Lords, with only one dissenting voice, held that the question whether the plaintiff had undertaken to assume the risk, and for that reason was not entitled to recover, was one of fact and not of law, and that this was so both at common law and in cases arising under the employer's liability act of 1880, under which that case arose. Some paragraphs of the decisions of the learned judges who sat in that case in the House of Lords are pertinent here, and deserve to be quoted. For example, Lord Watson said (vide p. 355):

"When, as is commonly the case, his acceptance or nonacceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it, unless he knew of its existence and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work with such knowledge and appreciation will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case."

Farther on in his opinion the same learned judge observed:

"In the circumstances of this case, the question whether he [the plaintiff] has accepted the risk is one of fact; there is no arbitrary rule of law which decides it."

Lord Herschell observed (vide p. 362):

"Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service it is true to say that he is willing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as wrong, and I know of no principle of law which compels the conclusion that the maxim, 'Volenti non fi injuria,' becomes applicable."

Farther on in his opinion, when discussing the decision in Thomas v. Quartermaine, the same judge observed that if it was assumed in that case

"That there was a breach of duty on the part of the employer in not having the vats fenced, * * it seems to me that it must have been a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform. If the effect of the judgment be that the mere fact that the plaintiff, after he knew the condition of the premises, continued to work and did not quit his employment, afforded his employer an answer to the action, even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decision."

The same view of the question under discussion has been taken in this country. For example, in Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537, it appeared that an employé in a mill, who had worked there for 13 years and was familiar with all of the surroundings, in attempting to go down some steps which were covered with ice, fell and was seriously injured. The ice upon the steps was caused by exhaust steam from an engine which was run by the defendant company, which fell upon

the steps and froze, and the plaintiff knew the steps to be icy and more or less slippery in the winter season, and that at the time she was hurt she was going down the steps with a dinner pail in one hand and holding onto the railing with the other. It was held by the Supreme Judicial Court of Massachusetts, in an elaborate decision, that the question whether the plaintiff had assumed the risk in question was a question of fact for the jury, and that it could not be said, as a matter of law, that she appreciated the risk and agreed to assume it. Also in the case of Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366, it appeared that the plaintiff, a servant girl, had fallen down a flight of steps in consequence of sleet and ice which had formed thereon because the defendant had suffered a skylight over the steps. to become broken, thus permitting the sleet to form on the steps. It further appeared that the plaintiff had gone down the steps once before, that evening, and knew that they were slippery, and that when she fell she had hold of the railing and was trying to go down safely. The court held on this state of facts that the question whether the plaintiff had assumed the risk of injury by going down the steps, in their known icy condition, was properly submitted to the jury.

See, also, to the same effect, Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 33 N. W. 551, where it was held that the fact that a servant knows of the defective condition of the instrumentalities with which he works does not necessarily charge him with contributory negligence or the assumption of the risks growing out of such defects, and that it is the right of a jury to determine these questions. See, also, Pennsylvania R. Co. v. Jones (C. C. A.) 123 Fed. 753, 756; Thorpe v. Missouri Pacific Railroad Co., 89 Mo. 650, 662, 663, 2 S. W. 3, 58 Am. Rep. 120; Hamilton v. Rich Hill Mining Company, 108 Mo. 364, 375, 376, 18 S. W. 977; Myers v. Hudson Iron Company, 150 Mass. 125, 134, 22 N. E. 631, 15 Am. St. Rep. 176; Ferren v. Old Colony Railroad Co., 143 Mass. 197, 200, 9 N. E. 608. In this connection it is worthy of remark that in England the last vestige of the doctrine that a servant who continues at work with knowledge and appreciation of a defect in tools and machinery thereby impliedly agrees with his master to assume the risk of getting hurt was abolished by an act of Parliament passed August 6, 1897 (vide St. 60 & 61 Vict. c. 37, Chitty's English Statutes, Supplement 1895-1901, vol. 14), which makes the master liable to his servant for any injury which the latter sustains in consequence of the master's negligence in providing tools and appliances, unless "it is proved that the injury to the workman is attributable to the serious and willful misconduct of the workman"; thereby setting the seal of condemnation on the entire doctrine of assumption of risk as theretofore promulgated, or as it was understood to have been promulgated in Thomas v. Quartermaine, 18 Q. B. D. 685.

I do not deny that there are cases where some courts have held that the risk encountered by a servant in using a defective implement or appliance was so obvious that he must have appreciated it fully, and for that reason have declared that he assumed it; but I maintain that in case of a clear omission of duty by an employer which has occasioned an injury, where an inference is to be drawn from facts and circumstances that a servant appreciated the risk incident thereto and voluntarily agreed to assume it, the inference is essentially one of