on the ground that this consequence was a patent risk, as well as on the more general ground that no negligence on the part of the company was established in regard to the supply of improper tools for the work).

As where the summons to undertake the unfamiliar duties has to be obeyed promptly, and the servant neither knows the danger nor how to guard against it. Mann v. Oriental Print Works (1875) 11 R. I. 152 (one hired as a fireman suddenly called on to assist the engineer in throwing a belt).

Or where the servant, by reason of his youth or inexperience, is incapable of understanding the hazards to be encountered.

On the other hand, the responsibility for such injuries as may result from obedience to the order will be held to have been accepted by the servant under any circumstances which would have justified that inference, where the extraordinary risk was one within the scope of the original contract.

In Fort Smith Oil Co. v. Slover (1893) 58 Ark. 168, 24 S. W. 106, the following instruction was disapproved: "The servant's implied assumption of risk is confined to the particular work or class of work for which he is employed. There is no implied undertaking of risks, except such as accompany, and are part of, the contract of hiring between the parties. If the servant, by the express or implied authority of the master, is carried beyond the contract of hiring, he is carried away from his implied undertaking as to risks. If the master orders him to work temporarily in another department of the general business where the work is of such a different nature and character that it cannot be said to be within the scope of the employ ment, and where he is associated with a different class of employees, he will not, by obeying such or ders, assume the risks incident to that service, or assume the risks of the negligence of such class of employees, but would be entitled to recover, if injured by reason of the negligence of such class of employees; provided he himself was not guilty of contributory negligence." He assumes, therefore, all the ordinary risks of the new duties. Millar v. Madison Car Co. (1895) 130 Mo. 517, 31 S. W. 574 (the court remarked that by its ruling it did not mean that the servant assumed the risk of a defective appliance of which he knew nothing, or dangers which were not visible, but the risks that ordinarily attended the working of a reasonably safe appliance of the same character). So far as he is competent to apprehend them. Pittsburgh, C. & St. L. R. Co. v. Adams (1886) 105 Ind. 151, 5 N. E. 187.

Whether he be a minor or an adult. See the passage cited in III. supra, from the opinion in Anderson v. Morrison (1875) 22 Minn. 274.

So far as the language goes, Foley v. California Horsehoe Co. (1896) 115 Cal. 184, 47 Pac. 42, seems to be contra as regards minors; but the case is one of those in which the phrase "assumption of risks" is improperly used to express a want of care.

The risks thus presumed to be accepted are those susceptible of being described by the same words that are employed to desaate extraordinary risks within the scope of the original employment; as "apparent." Walker v. Lake Shore & M. S. R. Co. (1895) 104 Mich. 606, 62 N. W. 1032.

Or "obvious." Feely v. Pearson Cordage Co. (1894) 161 Mass. 426, 37 N. E. 368; Leary v. Boston & A. R. Co. (1885) 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115 (for facts, see VII. b, infra; Wormell v. Maine C. R. Co. (1887) 79 Me. 397, 10 Atl. 49; Gavigan v. Lake Shore & M. S. R. Co. (1896) 110 Mich. 71, 67 N. W.

1097 (experienced section hand engaged with others in relaying a spur track during the progress of which it became necessary to move cars, was climbing at the command of the sec. tion boss upon one of the cars to set the brakes thereon and injured by the act of the other hands in violently bumping said car with another).

Or so "open and manifest" that an ordinary man, under the same circumstances, would have ascertained them by the exercise of reasonable diligence. East St. Louis Ice & Cold Storage Co. v. Sculley (1896) 63 Ill. App. 147.

So, also, no action is maintainable, where the servant had, as compared with the master. a better opportunity to see and know the extent of the danger. Houston & T. C. R. Co. v. Fowler (1882) 56 Tex. 452 (employee killed by derailment due to a wash-out while traveling on a relief train).

Or an equal opportunity. Thus, the fact that an employee in a quarry was called from. a safe employment to that upon which he was engaged at the time of the accident will not enable him to recover for injuries from the fall on him of the stone under which he was drilling, such fall being due to seams in the stone, and the hammering by the foreman upon the wedges at the top, where such employee was experienced in quarry work, knew the existence of seams and the danger therefrom, and had an equal opportunity with the master and foreman of ascertaining whether there were seams in the particular stone. Reed v. Stockmeyer (1896) 34 U. S. App. 727, 74 Fed. Rep. 186, 20 C. C. A. 381.

This rule, of course, contemplates a compre hension of the danger, and not merely a knowledge of the material conditions. Northern P. Coal Co. v. Richmond (1893) 15 U. S. App. 262, 58 Fed. Rep. 756, 7 C. C. A. 485, (boy of fourteen injured through stumbling over a lump of coal near a track in a mine, he being aware that it was there for jury to say whether he appreciated the risk).

According to several decisions in Indiana, the fact that the risk involved was as open to the observation of the servant as of the master will not warrant the inference that it was assumed, as in cases where the work was within the scope of the employment, the theory being that the master's order operates as an implied assurance of safety which precludes him from raising any defense but that of contributory negligence. The doctrine so formulated, it wil be observed, makes the specific order the controlling factor, and brings this class of cases within the range of the same principle as those developed in the note to McKee v. Tourtellotte (Mass.) ante, 542; Nall v. Louisville N. A. & C. R. Co. (1891) 129 Ind. 260, 28 N. E. 183. 611 (employee called out to avert the threatened destruction of a bridge by a freshet): Louisville. E. & St. L. Consol. R. Co. v. Hanning (1892) 131 Ind. 528, 31 N. E. 187 (car repairer directed by his superior to repair a car on a switch track, instead of on the tracks provided for that special purpose and upon which no trains are run or switched).

The position of the court is thus explained In Brazil Block Coal Co. v. Hoodlet (1891) 129 Ind. 327, 27 N. E. 741 (servant who usually worked above ground as a blacksmith injured while passing round an unprotected shaft the condition of which was obvious, after he had completed some work in it).

"When a master orders a servant to do something which involves encountering a risk not contemplated in his employment, although the risk is equally open to the observation of both. it does not necessarily follow that the servant either assumes the increased risk, or is negli

ployment. So it is not necessary to determine whether the nature and extent of Sturgis's authority over the plaintiff were such as to exclude him from the relation of fellow servant. The effect of his authority over the plaintiff is to be considered without reference to that relation. The defendant assigned Sturgis to the care of the machinery, and placed the plaintiff under his orders. If Sturgis, acting within the sphere of his own duty, required of the plaintiff a service which was outside his employment, and which a prudent master would not have imposed upon a person of his years, strength, and judgment, the defendant is liable for the consequences of the improper order.

In Brazil Block Coal Co. v. Gaffney (1889) 119 Ind. 455, 4 L. R. A. 850, 21 N. E. 1102, the court, in holding that a mine boss who directed a ten-year-old boy to leave his own work and undertake more dangerous duties, was not a fellow servant of the boy, said: "Nor do we rest our conclusion upon the maxim Respondeat superior. Mushett (if not Haines) under the circumstances of this case, was the agent of the appellant, and the superior of the appellee. It was his right to command, and the appellee's duty to obey, and, considering the immature age of the appellee, we must assume that he obeyed the commands of his superiors, supposing that it was his duty so to do, without regard to the dangers or hazards that he would encounter, and without a knowledge thereof."

See also Jones v. Old Dominion Cotton Mills (1886) 82 Va. 140 (order given by foreman); Mann v. Oriental Print Works (1875) 11 R. I. 152 (order given by engineer to fireman); Orman v. Mannix (1892) 17 Colo. 564, 17 L. R. A. 602, 30 Pac. 1037 (order given by gang foreman); and the cases cited, passim, in note.

In nearly all the cases in which this aspect of the master's liability has come under consideration the injured servant has been a minor, and language has sometimes been used which indicates that the benefit of this qualification of the doctrine of common employment can only be claimed by minors.

Mann v. Oriental Print Works (1875) 11 R. I. 152, was a case of an adult, so far as ap.

pears.

In Randall v. Baltimore & O. R. Co. (1883) 109 U. S. 483, 27 L. ed. 1005, 3 Sup. Ct. Rep. 322, Gray, J., said that the principle of Union P. R. Co. v. Fort (1873) 17 Wall. 553, 21 L. ed. 739, was that, the servant "being a minor, he was performing, by direction of his superior, work outside of and disconnected with the contract which his father had made for him with the defendant."

In Leary v. Boston & A. R. Co. (1885) 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115, also, it was remarked that the controlling factor was that plaintiff was a minor.

But with all deference to the eminent judges who have taken this view, the present writer ventures to express an opinion that it is neither consistent with the reason of the qualification nor sustained by the authorities, not excepting even the case commented upon. One of the grounds upon which the Supreme Court of the United States upheld the servant's right of action in Union P. R. Co. v. Fort (1873) 17 Wall. 553, 21 L. ed. 739 (as will be seen by reading the extract from the opinion in note), was that he "had no reason to believe he would have to encounter" the risk which caused his injury. Manifestly this element of nonantici pation is of precisely the same evidential import in the case of adults as in the case of servants, in so far as it operates prima facie to negative that knowledge which is supposed to exist with regard to the ordinary risks of work

within the scope of the employment. Up to this stage of the inquiry, therefore, adults and minors stand on the same footing.

The second question involved is that which is discussed in the latter part of the opinion in Union P. R. Co. v. Fort, viz., whether this presumption of excusable ignorance is overcome by the specific evidence which is relied upon to prove actual or constructive notice of the risk. This question is wholly distinct from the other. and, in considering it, the minority of the serv ant undoubtedly becomes material, for exactly the same reasons as where the extraordinary risk is one within the scope of the servant's employment. To this extent, therefore, and no further, it is submitted, the tender age of the plaintiff is a controlling factor in the cases which established this limitation of the doctrine of common employment. Minority, in short, makes it more difficult for the master ultimately to prevail on the ground of an assumption of the risks of new duties, but this is only because the general inference of a nonassumption of those risks which is drawn from the servant's nonanticipation is more readily rebutted by specific evidence in the case of adults than in the case of minors.

VI. Contributory negligence as a defense. In obeying orders generally.

The general rule, as formulated by an eminent judge, is that, where a master commands a servant to go outside of his regular employment to do a work which is attended with special danger, and the servant, in response to the specific commands of his master, goes and does the work in the way and at the time directed, the fact that the servant knew that it was

dangerous renders him, as matter of law, guilty

of contributory negligence, unless the character of the danger be so patent and so extreme that no one but a foolhardy, reckless man would attempt it. English v. Chicago, M. & St. P. R. Co. (1885) 24 Fed. Rep. 908, per Brewer, J. A similar principle holds where the order was given by a superior servant, clothed with authority to direct the servant who brings the

action.

In Chicago & N. W. R. Co. v. Bayfield (1877) 37 Mich. 205, it was agreed that, even if the superior servant who gave the order represented the company ad hanc vicem, the act of the plaintiff in obeying was his own voluntary act, and that the case was the ordinary one of contributory negligence. This contention did not prevail. Cooley, Ch. J., said: "When one person engages in the employment of another, he undertakes to obey all lawful orders, and he subjects himself, for any failure to do so, to the double liability of being expelled from the employment and of being required to pay damIt is true the master had no right to ages. direct him to do anything not contemplated in the employment; but when one thus contracts to submit himself to the orders of another,

there must be some presumption that the orders he receives are lawful, the giving of the orders being of itself an assumption that they are lawful; and the servant who refused to obey would take upon himself the burden of showing a lawful reason for the refusal. This of itself is sufficient reason for excusing the servant who declines the responsibility in any case in which doubts can possibly exist. He should assume that the order is given in good faith and in the belief that it is rightful; and if. in his own judgment, it is unwarranted, it is not for the master to insist that the servant was in the wrong in not refusing obedience. Respect for the master, as well as a consideration for his own interest, may very properly induce

49 (workman whose ordinary duties were in a car shop injured while coupling cars, under the direction of his foreman. Hand placed where servant could not help seeing it must be caught by the buffer).

Or fails to take the precautions against accident which would have suggested themselves to a prudent man. English v. Chicago, M. & St. P. R. Co. (1885) 24 Fed. Rep. 906 (servant was ordered to repair a water tank, and fell from a narrow, ice-covered platform on which he stood).

Or to exercise that measure of skill which he possesses. Boettger v. Scherpe & K. Architectural Iron Co. (1894) 124 Mo. 87, 27 S. W. 466 (one hired as a common laborer not required to possess such skill in choosing lumber for a scaffold as will debar him from recovery for injuries received through the breaking of a piece of timber used in erecting the structure).

VII. Absence of compulsion, an essential element of assumption of risks and contributory negligence.

a. Generally.

As in cases of injuries from other kinds of extraordinary risks, neither an assumption of risks outside the scope of the original employment, nor contributory negligence in encountering those risks, can be predicated, unless it is shown that the work was undertaken voluntarily.

Actual compulsion will readily be inferred where the servant is a minor.

In Kehler v. Schwenk (1892) 151 Pa. 505, 25 Atl. 130, one of the elements of liability which was held to warrant a verdict for the plaintiff, a boy of fourteen, was that he was urged into the new service against his will.

An action is inaintainable upon a complaint which alleges that a minor was not engaged in the service which he was hired to perform, but that he was "compelled" by the fellow servant to labor at a business much more perilous, and was injured while so engaged. The court said: "There was then no opportunity to adjust the compensation with a view to the risk. There was no consent to perform the service on any terms. It was a compulsory service; and under such circumstances neither justice nor policy requires that the master shall be acquitted of responsibility." Chicago & G. E. R. Co. v. Harney (1867) 28 Ind. 30, 92 Am. Dec. 282.

The rights of a child are not permitted to depend upon his ability to discriminate promptly as to the work required of him, or to refuse obedience to the command of his superior. Hayes v. Colchester Mills (1894) 69 Vt. 1, 37 Atl. 269.

See also Patnode v. Warren Cotton Mills (1892) 157 Mass. 283, 32 N. E. 161 (servant fourteen years of age, and of less than ordinary intelligence, injured while obeying peremptory orders, given with an oath, to assist in operating a machine at which he was not employed to work, the danger attending which was partially concealed from his view, held not negligent, as matter of law).

But, where he is an adult, compulsion is surmised only under exceptional circumstances. See, however, the extracts from the opinion in Brazil Block Coal Co. v. Hoodlet (1891) 129 Ind. 327, 27 N. E. 741 (work done under orders volenti non fit).

b. Protest or objection by servant.

The principle that the failure of the serv ant to protest against the maintenance of abnormally dangerous conditions due to the mas

ter's negligence is a circumstance which points strongly, and even conclusively, to the inference that the servant was willing to assume the resulting risks, is equally applicable where the peril is extraordinary in the sense with which we are now concerned.

A brakeman engaged with the distinct agreement that he is not to couple cars except with a stick, and is under no circumstances to go between cars having an engine attached, cannot recover for injuries received in going between the cars by direction of the engineer, on the ground that the duty was outside the scope of his employment, where he makes no objection. Richmond & D. R. Co. v. Finley (1894) 25 U. S. App. 16, 12 C. C. A. 595, 63 Fed. Rep. 228. To the same effect, see Cole v. Chicago & N. W. R. Co. (1888) 71 Wis. 114, 37 N. W. 84.

The evidential import of a protest actually made depends, both upon the defense which has been raised, and upon the views of the court as to the economic's social principles discussed in note to O'Maley v. South Boston Gaslight Co. 47 L. R. A. 165, Volenti non fit injuria, as a defense to actions by injured servants. If the defense is an assumption of the risks, the general principle which is almost universally held in the United States, that the servant cannot countervail the effect of his appreciation of the risk by showing that he entered a protest before undertaking his duties. is considered to be equally applicable whether the work to be done is within or outside the scope of the original employment. Accordingly we find it laid down that a servant of full age and adequate experience cannot cast upon the master all the risk of accident in the performance of new duties by simply protesting against being called upon to perform those duties. Under such circumstances he has the choice of either leaving the employment, or to remain and assume all the risks incident to the work he knows that he is expected to do. Wheeler v. Berry (1893) 95 Mich. 250, 54 N. W. 876, distinguishing Chicago & N. W. R. Co. v. Bayfield (1877) 37 Mich. 205, as being a decision based on the youth, weakness, and inexperience of the servant. To the same effect, is Leary v. Boston & A. R. Co. (1885) 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115 (freight truckman, acting temporarily as fireman, was thrown off the foot board of a switching engine by a jolt caused by the passage of the engine over a frog). The court said: "While a person who engages for a particular service agrees to encounter only the dangers of that service. he may, perhaps, in the first instance, assume that the order given him by his superior is warranted by the legitimate scope of his employment. If, so assuming, he is induced to perform duties which, by his contract, he is not bound to perform, and is thus injured, he should be able to maintain an action for the injury against the employer. But, in the case at bar, the plaintiff knew that the duty of aiding as fireman on the engine was not within his original contract as a laborer. He determined to perform it as a part of his engagement with the defendant, rather than lose his position as a laborer. In so doing, he must be held to have assumed its necessary risks. . . Morally to coerce a servant to an employment, the risks of which he does not wish to encounter, by threatening otherwise to deprive him of an employment he can readily and safely perform, may sometimes be harsh; but when one has assumed an employment, if an additional and more dangerous duty is added to his original labor, he may accept or refuse it.. If he has an executory contract for the original serv ice, he may refuse the additional and more dan