Thus the peril from revolving rollers *** or knives may be so obvious, even to a child, that no special warning would be needed.29 The danger in quitting a cinder pit located between the rails is also apparent,29 or in standing upon a bench likely to tip.295 In such cases the inexperience of the employé does not alter the situation. If he is experienced, the master is justified in presuming that he is aware of the ordinary dangers of his employment, though they are latent in the sense that one unfamiliar with the work would not have known of them.29 But where, because of youthfulness or inexperience, the servant is unaware of the hidden danger, and the master must reasonably have known of this fact, his duty to give sufficient warning is clear,297 capacity of a minor who is employed in a hazardous occupation are such that a master of ordinary intelligence and prudence would know that he is not aware of or does not appreciate the ordinary risks of his employment, it is his duty to notify him of them and instruct him how to avoid them. This notice and instruction should be graduated to the age, intelligence, and experience of the servant. They should be such as a master of ordinary prudence and sagacity would give under like circumstances, for the purpose of enabling the minor not only to know the dangerous nature of his work, but also to understand and appreciate its risks and avoid its dangers. They should be governed, after all, more by the experience and capacity of the servant than by his age, because the intelligence and experience of men measure their knowledge and appreciation of the dangers about them far more accurately than their years."

292 McCarthy v. Mulgrew, 107 Iowa, 76, 77 N. W. 527; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178, cf. Buckley v. Gutta Percha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717.

293 Unless they created a suction unknown to him. Bohn Mfg. Co. v. Erickson, 55 Fed. 943, 5 C. C. A. 341.

294 Chicago & A. R. Co. v. Bell, 209 Ill. 25, 70 N. E. 754.

295 Hesse v. National Casket Co., 66 N. J. Law, 652, 52 Atl. 384. 296 Thus an experienced railroad engineer will be presumed to be acquainted with the ordinary peculiarities of the road and engine. Thain v. Old Colony R. Co., 161 Mass. 353, 37 N. E. 309; Bellows v. Pennsylvania & N. Y. Canal & R. Co., 157 Pa. 51, 27 Atl. 685. To the same effect: Kennedy v. Merrimack Pav. Co., 185 Mass. 442, 70 N. E. 437; Saucier v. New Hampshire Spinning Mills, 72 N. H. 292, 56 Atl. 545; Cincinnati, N. O. & T. P. Ry. Co. v. Mealer, 1 C. C. A. 633, 50 Fed. 725.

297 Tagg v. McGeorge, 155 Pa. 3CS, 26 Atl. 671, 35 Am. St. Rep. 889; Reynolds v. Boston & M. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am.

and it makes no difference that the peril arises from the wrongdoing of a third party.298

ASSUMPTION OF RISK BY SERVANT

48. A servant takes upon himself the risks ordinarily incident to his occupation, including such as arise from the negligence of a fellow servant. Known hazards, or such as might have become known in the exercise of reasonable care, are likewise assumed, though not properly incident to the service.

It is sometimes said to be assumed that the servant, when entering upon his employment, was aware of the hazard' incidental thereto, and "he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk.” 299 But it is evident that this statement does not meet all cases, for the risk assumed by the servant may be such as he has become acquainted with during the term of employment, though not such as he had in contemplation at the time the service began.300 Furthermore, he takes upon himself, in addition to the ordinary risks incident to the business, such others as are actually known to him, or are obvious to a person possessing ordinary powers of observation.301 In fact, though the doctrine of the assumption by an employé of the risks of his employment has usually been considered from the point of view St. Rep. 908; Chicago Anderson Pressed Brick. Co. v. Reinneiger, 140 Ill. 334, 29 N. E. 1106, 33 Am. St. Rep. 249; Walsh v. Peet Valve Co., 110 Mass. 23; Addicks v. Christoph, 62 N. J. Law, 786, 43 Atl. 196, 72 Am. St. Rep. 687; Giebell v. Collins Co., 54 W. Va. 518, 46 S. E. 569.

298 Thus, where plaintiff, a carpenter, was employed by defendant to perform labor upon the latter's premises, where he was shot by a third party, the knowledge of defendant that the work would probably be resisted forcibly imposed a duty to warn plaintiff of the hazard. Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160.

299 Hutchinson v. York, N. & B. Ry. Co., 5 Exch. 343, 351, per Alderson, B.

300 Dillenberger v. Weingartner, 64 N. J. Law, 292, 45 Atl. 638. 801 Hanson v. Hammell, 107 Iowa, 171, 77 N. W. 839; Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, 34 N. E. 901; McDonald v. Standard Oil Co., 69 N. J. Law, 445, 55 Atl. 289; Johnston v. Ore

of a contract, express or implied,302 yet as applied to actions of tort for negligence brought against an employer it leads up to the broader principle, "Volenti non fit injuria." 303

Even a superficial examination of the cases bearing upon the doctrine of assumed risk is of course impracticable. The principle applies to instrumentalities of employment,304 to places,305 to rules,300 and to methods of work.307 It should appear either that the risk was appreciated by the servant, or was so patent that, in view of his age and experience, he should have appreciated it. His knowledge of the defect is not necessarily tantamount to knowledge of the hazard,308 a rule which is peculiarly applicable to cases where the work was beyond the scope of the original employment.809 But there can be no assumption of risk where the act of the servant was not voluntary, as in the gon S. L. & U. N. Ry. Co., 23 Or. 94, 31 Pac. 283; Bemisch v. Roberts, 143 Pa. 1, 21 Atl. 998.

302 Conway v. Furst, 57 N. J. Law, 645, 32 Atl. 380.

303 O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136, 32 N. E. 1119, 47 L. R. A. 161; Knisley v. Pratt, 148 N. Y. 372, 379, 42 N. E. 986, 32 L. R. A. 367.

304 Jenney Electric Light & Power. Co. v. Murphy, 115 Ind. 566, 18 N. E. 30; Rooney v. Sewell & Day Cordage Co., 161 Mass. 153, 36 N. E. 789; Wheeler v. Berry, 95 Mich. 250, 54 N. W. 876; Crown v. Orr, 140 N. Y. 450, 35 N. E. 648; Green & C. St. Pass. Ry. Co. v. Bresmer, 97 Pa. 103.

305 Ragon v. Toledo, A. A. & N. M. Ry. Co., 97 Mich. 265, 56 N. W. 612, 37 Am. St. Rep. 336; Clark v. St. Paul & S. C. R. Co., 28 Minn. 128, 9 N. W. 581; Baylor v. Delaware, L. & W. R. Co., 40 N. J. Law, 23, 29 Am. Rep. 208; Gibson v. Erie Ry. Co., 63 N. Y. 449, 20 Am. Rep. 552; Kline v. Abraham, 178 N. Y. 377, 70 N. E. 923; McGrath v. Texas & P. Ry. Co., 9 C. C. A. 133, 60 Fed. 555.

306 Thus, where recovery was sought for the killing of an employé by a switch engine running at an unlawful rate of speed, evidence is admissible to prove that deceased was aware of a custom to run engines faster than the lawful rate. Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910. To the same effect, there being no rules, but the danger being known, Zebrowski v. Warner Sugar Refining Co., 83 N. J. Law, 558, 83 Atl. 957.

397 Schultz v. Chicago & N. W. Ry. Co., 67 Wis. 616, 31 N. W. 321, 58 Am. Rep. 881.

308 Russell v. Minneapolis & St. L. Ry. Co., 32 Minn. 230, 20 N. W. 147; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573.

309 Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614, 35 N. E. 162; Ferren v. Old Colony R. Co., 143 Mass. 197, 9 N. E. 608.

case of a sailor, since his disobedience might have been punished,310 or of a convict, whose movements are controlled by a guard.11

It may appear that the servant, on discovering the danger, called the master's attention thereto, and the latter promised to remedy the defect. The continuance in service for a reasonable time thereafter in reliance upon the master's word will not amount to an assumption of risk, unless the peril is so imminent that one of ordinary prudence would have immediately discontinued work.312 Furthermore, for reasons of public policy and quite apart from any promise to repair, the servant will not thereby be deemed to have assumed the risk where his immediate discontinuance would subject the lives of others to danger.31

Fellow Servants

Among the risks of service is that of negligence on the part of a fellow servant. Though the rule is generally upheld on this theory, it has been justified on broader grounds; for it has been said that, were it otherwise, it "would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master than any recourse against his master for damages could.

310 Eldridge v. Atlas S. S. Co., 134 N. Y. 187, 32 N. E. 66.

311 Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S. E. 1015. 312 Taylor v. Felsing, 164 Ill. 331, 45 N. E. 161; Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; Settle v. St. Louis & S. F. R. Co., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633; Dowd v. Erie R. Co., 70 N. J. Law, 451, 57 Atl. 248; Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377.

313 Thus an engineer, who discovers that his engine has become defective, but who nevertheless remains in control to the end of his trip, was held not precluded from recovery. Olney v. Boston & M. R. R., 71 N. H. 427, 52 Atl. 1097. To the same effect, Campbell v. Chicago, R. I. & P. R. Co., 45 Iowa, 76.

possibly afford." 14 While the application of the principle has at times led to differing results, it is well settled and authoritatively established by the uniform current of authority in this country and in England,315 except as it has been expressly modified by legislation.316

318

The injured party and he whose negligence caused the injury must have had a common master.317 It will not be sufficient that their masters are engaged in a common undertaking, or that one servant is in the employ of a principal and the other in that of an independent contractor,31 though, as the right of a single control is the determinative test, they will be regarded as fellow servants where the principal has or exercises the power to direct the employés of his contractor.320 So, where a servant has been loaned for a special purpose, in the fulfillment of which he acts. under the control of the party to whom he is lent, he is deemed, while so acting, to be in the employ of the latter.321

314 Priestly v. Fowler, 3 M. & W. 1, 7, per Abinger, C. B. And see Farwell v. Boston & W. R. Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339.

315 Sullivan v. Mississippi M. R. Co., 11 Iowa, 421; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Hutchinson v. York, N. & B. Ry. Co.,. 5 Exch. 343. And see cases hereafter cited.

316 See infra, p. 191.

317 A switch tender, employed by a railroad company upon a portion of its track over which it permits another company to run trains, is not the fellow servant of an engineer employed by the latter. Smith v. New York & H. R. Co., 19 N. Y. 127, 75 Am. Dec. 305. 318 Philadelphia, W. & B. R. Co. v. State, 58 Md. 372; Morgan v. Smith, 159 Mass. 570, 35 N. E. 101; Jansen v. City of Jersey City, 61 N. J. Law, 243, 39 Atl. 1025; Sanford v. Standard Oil Co., 118 N. Y. 571, 24 N. E. 313, 16 Am. St. Rep. 787; Johnson v. Lindsay [1891] App. Cas. 371.

319 Ward v. New England Fibre Co., 154 Mass. 419, 28 N. E. 299; Norman v. Middlesex & S. Traction Co., 71 N. J. Law, 562, 60 Atl. 936; Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Coates v. Chapman, 195 Pa. 109, 45 Atl. 676; Otis Steel Co. v. Wingle, 152 Fed. 914, 82 C. C. A. 62.

320 Johnson v. City of Boston, 118 Mass. 114; Ewan v. Lippincott, 47 N. J. Law, 192, 54 Am. Rep. 148.

821 Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267.