the attorney drawing pleadings upon a misunderstanding of the facts and not by authority of the party, and this, of course, may be shown. All that appears here as to this is that the superseded answer contained the allegation offered in evidence, and we think that pleadings which have been filed in court in behalf of a party should be, prima facie at least, regarded as authorized by him and admissible against him, where they admit facts relevant to the issue. This court has recently had occasion to review this subject and to point out that the question under consideration was not decided 135 in Coats v. Elliott, 23 Tex. 606, the expressions in which have given rise to most of the difference of opinion that has arisen in this state: Watson v. First Nat. Bank, 95 Tex. 351, 67 S. W. 314. The case of Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, is one in which the question was fully considered in the majority and dissenting opinions of the court of civil appeals of the second district, and in which this court held with the majority affirming the admissibility of the evidence. The plea in that case was signed and sworn to by the party himself, and this made it certain that the admission was his own and perhaps added to its weight as evidence, but its admissibility did not depend on those circumstances. The certificate shows only that the fact in question was alleged in the plea offered in evidence, by which we understand that such fact was admitted and not otherwise put in issue. Such being the case the plea was admissible.

RIGHT OF RECOVERY BY EMPLOYÉS ACCEPTING EXTRAHAZARDOUS DUTIES,

I. General Rights and Duties of Master.

a. Right to Engage in Dangerous Business.
b. Duty to Provide for Safety of Servant.

II. Assumption of Risk and Contributory Negligence.
General Scope of the Doctrines.

a.

b. Criticism-Unequal Footing of the Parties.

C.

Servant's Fear of Dismissal.

d. Appreciation of the Danger.

e.

f.

Judgment of the Parties as to the Danger.
Immediate Direction of Master.

g. Method of Doing Work.

III. Obeying Express Orders and Directions.

a. In General.

b.

Sudden Commands-Emergency.

C. Positive and Peremptory Commands-Coercion.
Assurance of Safety by Master.

d.

e.

Work Beyond Scope of Employment.

1. General Rights and Duties of Master.

a. Right to Conduct Dangerous Business.-The common law confers upon employers the right to decide how their work shall be performed, and to employ men to work in an unsafe place or with dangerous implements, without incurring liability for injuries sustained by the workmen who knew, or should have known, the hazards of the service they have chosen to enter: McGorty v. Southern etc. Tel. Co., 69 Conn. 635, 61 Am. St. Rep. 62, 38 Atl. 359; Ragon v. Toledo etc. Ry. Co., 97 Mich. 265, 37 Am. St. Rep. 336, 56 N. W. 612. If an employé enters upon the service, knowing the risks involved, he is regarded as having voluntarily incurred them, unless the employer urges or coerces him into danger, or in some way directly contributes to the injury: See the monographic note to Bazzell v. Laconia Mfg. Co., 77 Am. Dec. 222.

In recent years, however, it has dawned upon society that the employer is not the sole party interested in the manner in which he -carries on his business, but that the employé and the public have a right to be heard. One of the practical results of this awakening has been the enactment of statutes prescribing measures of safety which an employer must take for the safety of his employés. But this is an aspect of the question which it is not our purpose here to discuss. It is adverted to merely to suggest that the almost absolute right of an employer to carry on his business by means of unnecessarily dangerous means, provided his servants contract with a full knowledge and appreciation of the danger, no longer exists; and that a substantial beginning has been made toward affording, by law, a protection to employés which their dependent position places beyond their own power to demand.

b. Duty to Provide for Safety of Servant.-A master owes to his servant the duty of providing a reasonably safe place in which to work, of furnishing reasonably safe tools, appliances, and machinery, and of exercising reasonable diligence to employ reasonably safe and competent men to perform their respective duties. And the servant has a right to assume that this duty has been discharged: See the monographic note to Mast v. Kern, 75 Am. St. Rep. 591-600; Chieago etc. R. R. Co. v. Maroney, 170 Ill. 520, 62 Am. St. Rep. 396, 48 N. E. 953; Edward Hines Lumber Co. v. Ligas, 172 Ill. 315, 64 Am. St. Rep. 38, 50 N. E. 225; Louisville etc. Ry. Co. v. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443, 31 N. E. 187; Chicago etc. R. R. Co. v. Champion, 9 Ind. App. 510, 53 Am. St. Rep. 357, 36 N. E. 221, 37 N. E 21; Thompson v. Bartlett etc. Co., 71 N. H. 174, 93 Am. St. Rep. 504, 51 Atl. 633; Nord Deutcher Lloyd Steamship Co. v. Ingebregsten, 57 N. J. L. 400, 51 Am. St. Rep. 604, 31 Atl. 619; Kehler v. Schwenk, 151 Pa. St. 505, 31 Am. St. Rep. 777, 25 Atl. 130; Whipple v. New York etc. R. R. Co., 19 R. I. 587, 61 Am. St. Rep. 796, 35 Atl. 305; Carter v. Oliver Oil Co., 34 S. C. 211, 27 Am. St. Rep. 815, 13 S. E. 419; Downey v. Gemini Min. Co., 24 Utah, 431, 91 Am. St.

Rep. 798, 68 Pac. 414; Sroufe v. Moran Bros. Co., 28 Wash. 381, 92 Am. St. Rep. 847, 68 Pac. 896; Northern Pac. Ry. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. Rep. 321. The master's duty in these respects is continuous. Discharging it in the first instance is not sufficient to exonerate him; he must see to it that the means and instrumentalities for carrying on operations are kept and maintained in a reasonably safe condition: See the monographic note to Buzzell v. Laconia Mfg. Co., 77 Am. Dec. 220; Houston Biscuit Co. v. Dial, 135 Ala. 168, 33 South. 268; Dyas v. Southern Pac. Co. (Cal.), 73 Pac. 972; Shebek v. National Cracker Co. (Iowa), 94 N. W. 930; Covington Sawmill Mfg. Co. v. Clark, 25 Ky. Law Rep. 694, 76 S. W. 348; Myers v. Hodson Iron Co., 150 Mass. 125, 15 Am. St. Rep. 176, 22 N. E. 631; Elmore v. Seaboard Air Line Ry. Co., 132 N. C. 865, 44 S. E. 620; Boyle v. Union Pac. R. R. Co., 25 Utah, 420, 71 Pac. 988. But he is not bound to make the place of work, the machinery, the tools, and the appliances as safe as they can be made; he is not bound to furnish the newest and safest tools, machinery, and appliances. Ordinary care-the care and diligence exercised by ordinarily prudent men engaged in similar enterprises-is the measure of his duty, having regard to the dangerous character of the work, and the advanced state of invention and improvements. He is not an insurer or guarantor of safety: See the monographic note to Buzzell v. Laconia Mfg. Co., 77 Am. Dec. 221, 222; Disano v. New England Steam Brick Co., 20 R. I. 452, 40 Atl. 7; Oliver v. Ohio River R. R. Co., 42 W. Va. 703, 26 S. E. 444; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064. But when an employment is in its nature perilous, he must adopt precautions and safeguards against such perils: Portance v. Lehigh Valley Coal Co., 101 Wis. 574, 70 Am. St. Rep. 932, 77 N. W. 975. And when safer appliances have been invented, tested, and come into general use, it is negligence per se for an employer to expose his servants to the hazard of life and limb from antiquated and defective appliances that generally have been discarded by the intelligence and humanity of other employers: Troxler v. Southern Ry. Co., 124 N. C. 189, 70 Am. St. Rep. 580, 32 S. E. 550. See, also, Stiller v. Bohn Mfg. Co., 80 Minn. 1, 82 N. W. 981.

II. Assumption of Risks and Contributory Negligence.

a. General Scope of the Doctrines.-If a master has discharged the foregoing duties which the law imposes upon him, then a servant voluntarily engaging in a dangerous or extrahazardous employment assumes the ordinary risks incident thereto which are known or obvious to him. And this doctrine applies as well to those risks which first arise or become known to the servant during the service as to those in contemplation at the original hiring. Moreover, it applies alike to all risks, whether they arise from the negligence of fellow-servants, insufficiency of workmen, method of work, defective tools, appliances, and machinery, or dangerous premises: Coal Run

Coal Co. v. Jones, 127 Ill. 379, 8 N. E. 865, 20 N. E. 89; Swift & Co. v. Rutkowski, 167 Ill. 156, 47 N. E. 362; Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904; Indianapolis etc. Ry. Co. v. Watson, 114 Ind. 20, 5 Am. St. Rep. 578, 14 N. E. 721, 15 N. E. 824; Meador v. Lake Shore etc. Ry. Co., 138 Ind. 290, 46 Am. St. Rep. 384, 37 N. E. 721; South Baltimore Car Works v. Schaefer, 96 Md. 88, 94 Am. St. Rep. 560, 53 Atl. 665; Joyce v. Worcester, 140 Mass. 245, 4 N. E. 565; Carr v. St. Clair Tunnel Co. (Mich.), 92 N. W. 110; Claybaugh v. Kansas City etc. Ry. Co., 56 Mo. App. 630; Thompson v. Missouri Pac. Ry. Co., 51 Neb. 527, 71 N. W. 61; Chandler v. Atlantic etc. Ry. Co., 61 N. J. L. 380, 39 Atl. 674; Johnson v. Devoe Snuff Co., 62 N. J. L. 417, 41 Atl. 936; Porter v. Western etc. R. R. Co., 97 N. C. 66, 2 Am. St. Rep. 272, 2 S. E. 581; Nuss v. Rafsnyder, 178 Pa. St. 397, 35 Atl. 958; Brown v. Chattanooga Electric Ry. Co., 101 Tenn. 252, 70 Am. St. Rep. 666, 47 S. W. 415; Gann v. Railroad, 101 Tenn. 380, 70 Am. St. Rep. 687, 47 S. W. 493; Bonnett v. Galveston etc. Ry. Co. (Tex. Civ. App.), 31 S. W. 525; Handley v. Daly Min. Co., 15 Utah, 189, 62 Am. St. Rep. 916, 49 Pac. 295; Fritz v. Salt Lake etc. Light Co., 18 Utah, 493, 56 Pac. 90; Norfolk etc. R. R. Co. v. Houchins, 95 Va. 398, 64 Am. St. Rep. 791, 28 S. E. 578; McDonald v. Norfolk etc. R. R. Co., 95 Va. 98, 27 S. E. 821; Oliver v. Ohio River R. R. Co., 42 W. Va. 703, 26 S. E. 444; McMillan v. Spider Lake etc. Co., 115 Wis. 332, 95 Am. St. Rep. 947, 91 N. W. 979; Easton v. Houston etc. Ry. Co., 39 Fed. 65.

However, the rule that a servant assumes the ordinary risks of his employment presupposes that the master has performed the duties of caution, care, and vigilance which the law casts upon him. It is only those risks which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes: Western Stone Co. v. Musical, 196 Ill. 382, 89 Am. St. Rep. 325, 63 N. E. 664; Slack v. Harris, 200 Ill. 96, 65 N. E. 669.

And the doctrine of assumption of risks applies only to known dangers or those which are so obvious as to be readily perceived: Pitts v. Florida etc. R. R. Co., 98 La. 655, 27 S. E. 189; Scanlon v. Boston etc. R. R. Co., 147 Mass. 484, 9 Am. St. Rep. 732, 18 N. E. 209; Myers v. Hudson Iron Co., 150 Mass. 125, 15 Am. St. Rep. 176, 22 N. E. 631; Bradburn v. Wabash R. R. Co. (Mich.), 96 N. W. 929. It is the duty of a servant to use reasonable care to inform himself of the hazards to which he may be exposed: Chenal v. Palmer Brick Co., 117 Ga. 106, 43 S. E. 443; McDonald v. Chicago etc. Ry. Co., 41 Minn. 439, 16 Am. St. Rep. 711, 43 N. W. 380. He is bound to use his eyes to see that which is open and apparent to a prudent man: Dillenberger v. Weingartner, 64 N. J. L. 292, 45 Atl. 638; Record v. Chicksaw etc. Co., 108 Tenn. 657, 69 S. W. 334. But he need not inspect appliances and premises to determine whether they are safe. He has a right to rely on his master's inquiry, because it is the latter's duty to inquire; and he may assume that his master has dis

charged his duty and made inquiry. The fact that a servant has as good an opportunity as his master to know of defects involving risks does not necessarily charge him with their assumption or with contributory negligence: Starr v. Kreuzberger, 129 Cal. 123, 79 Am. St. Rep. 92, 61 Pac. 787; Ehlen v. O'Donnell, 205 Ill. 38, 68 N. E. 766; Summit Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. 676; Pittsburg etc. Ry. Co. v. Parish, 28 Ind. App. 189, 91 Am. St. Rep. 120, 62 N. E. 514; New York etc. R. R. Co. v. O'Leary, 93 Fed. 737, 35 C. C. A. 562.

"While the employer may expect that an employé will be vigilant to observe, and that he will be on the alert to avoid, all known and obvious perils, even though they may arise from defective tools and machinery.... yet the latter is not bound to search for defects, or inspect the appliances furnished him, to see whether or not there are latent imperfections in or about them which render their use more hazardous. These are the duties of the master, and, unless the defects are such as to be obvious to anyone giving attention to the duties of the occasion, the employé has a right to assume that the employer has performed his duty in respect to the implements and machinery furnished": Louisville etc. Ry. Co. v. Buck, 116 Ind. 566, 9 Am. St. Rep. 883, 19 N. E. 453; Indiana etc. Gas. Co. v. Marshall, 22 Ind. App. 121, 52 N. E. 232. A servant is not chargeable with notice of defective conditions merely because he had the means and opportunity of ascertaining them: Wellston Coal Co. v. Smith, 65 Ohio St. 70, 87 Am. St. Rep. 547, 61 N. E. 143.

In determining the issue of assumption of risk, regard must be had to the age, experience, and mental capacity of the employé, with a view of ascertaining whether he knew and appreciated the danger: Shebek v. National Cracker Co. (Iowa), 94 N. W. 930. See, too, Ciriack v. Merchants' Woolen Co., 151 Mass. 152, 21 Am. St. Rep. 438, 23 N. E. 829; Jones v. Old Dominion Cotton Mills, 82 Va. 140, 3 Am. St. Rep. 92. It is an actionable wrong for a master to expose to a hazardous employment a servant whom he knows to be lacking in capacity to understand and appreciate the dangers about him, however much he may have been instructed: Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Rep. 200, 27 N. E. 502.

A servant assumes only the ordinary risks incident to the employment, and not the unusual, exceptional, and extraordinary risks and dangers: Chicago Hair etc. Co. v. Mueller, 203 Ill. 558, 68 N. E. 51; Southern Indiana Ry. Co. v. Harrell (Ind. App.), 66 N. E. 1016; Richland's Iron Co. v. Elkins, 90 Va. 249, 17 S. E. 890; Moore Lime Co. v. Richardson, 95 Va. 326, 64 Am. St. Rep. 785, 28 S. E. 334. The master's negligence, or that of his agent, is a risk not assumed (Alabama etc. R. R. Co. v. Brooks, 135 Ala. 401, 33 South. 187; Illinois Steel Co. v. McFadden, 196 Ill. 344, 89 Am. St. 319, 63 N. E. 671; Boucher v. Robeson Mills, 182 Mass. 500, 65 N. E. 819; O'Neill v. Chicago etc. R. R. Co., 62 Neb. 358, 86 N. W. 1098;