Christensen v. Lambert, 67 N. J. L. 341, 51 Atl. 702; Woodward v. Shumpp, 120 Pa. St. 458, 6 Am. St. Rep. 716, 14 Atl. 378), unless, perhaps, the servant engages or continues in the employment with a knowledge of such negligence: San Antonio etc. Ry. Co. v. Engelhorn, 24 Tex. Civ. App. 324, 62 S. W. 561, 65 S. W. 68; Sanderson v. Panther Lumber Co., 50 W. Va. 42, 88 Am. St. Rep. 841, 40 S. E. 368. But it has been held that an employé continuing to work after he knows the negligent and dangerous manner in which his employer allows his business to be conducted, does not assume the risk of the negligence: Richmond etc. Ry. Co. v. Norment, 84 Va. 167, 10 Am. St. Rep. 827, 4 S. E. 211. A servant does not assume the risk of the negligence of his employer combined with that of a fellow-servant: McGinn v. McCormick, 109 La. Ann. 396, 33 South. 382.

An employé is bound to exercise ordinary care for his own safety, and if he is guilty of negligence directly contributing to his injury, he cannot, as a rule, hold his employer answerable: Columbus etc. Ry. Co. v. Bridges, 86 Ala. 448, 11 Am. St. Rep. 58, 5 South. 864; Louisville etc. R. R. Co. v. Stutts, 105 Ala. 368, 53 Am. St. Rep. 127, 17 South. 29; Victor Coal Co. v. Muir, 20 Colo. 320, 46 Am. St. Rep. 299, 38 Pac. 378; Florida etc. R. R. Co. v. Mooney, 40 Fla. 17, 24 South. 148. It is not contributory negligence on the part of an employé, however, to engage in a dangerous occupation: Myhan v. Louisiana Elec. etc. Co., 41 La. Ann. 964, 17 Am. St. Rep. 436, 6 South. 799. And one continuing in the work after knowledge of defects in the appliances is not necessarily chargeable with contributory negligence: Parker v. South Carolina etc. Ry., 48 S. C. 364, 26 S. E. 669. To charge an employé with contributory negligence in working with defective appliances or in a dangerous place, the danger must be so obvious and glaring that a prudent man would not incur it. Mere knowledge of defects is not sufficient: Ashland etc. Ry. Co. v. Wallace, 101 Ky. 626, 42 S. W. 744, 43 S. W. 207; Settle v. St. Louis etc. R. R. Co., 127 Mo. 336, 48 Am. St. Rep. 633, 30 S. W. 125; Hester v. Jacob Dold Packing Co., 95 Mo. App. 16, 75 S. W. 695. Where a servant, in obedience to the requirements of his master, incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or when it is reasonably probable that it may be safely used by extraordinary caution or skill, he is not thus guilty of concurrent negligence, and the master is liable for a resulting accident: Swadley v. Missouri Pac. Ry. Co., 118 Mo. 268, 40 Am. St. Rep. 366, 24 S. W. 140; Halloran v. Union Iron & Foundry Co., 133 Mo. 470, 35 S. W. 260; Patterson v. Pittsburg etc. R. R. Co., 76 Pa. St. 389, 18 Am. Rep. 412.

"A man who enters on a necessarily dangerous employment with his eyes open," says Chief Justice Cockburn, "takes it with its accompanying risks. On the other hand, if the danger is concealed from him and an accident happens before he becomes aware of it,

or if he is led to expect, or may reasonably expect, that proper precautions will be adopted by the employer to prevent or lessen the danger, and from the want of such precautions an accident happens to him before he has become aware of their absence, he may hold the employer liable. If he become aware of the danger which has been concealed from him, and which he had not the means of becoming acquainted with before he entered upon the employment, or of the want of the necessary means to prevent mischief, his proper course is to quit the employment. If he continues in it, he is in the same position as though he had accepted it with a full knowledge of its danger in the first instance, and must be taken to waive his right to call upon the employer to do what is necessary for his protection, or in the alternative to quit the service. If he continues to take the benefit of the employment, he must take it subject to its disadvantages. He cannot put on the employer terms to which he has now full notice that the employer never intended to bind himself. It is competent to an employer, at least so far as civil consequences are concerned, to invite persons to work for him under circumstances of danger caused or aggravated by want of due precautions on the part of the employer. If a man chooses to accept the employment, or to continue in it with knowledge of the danger, he must abide the consequences, so far as any claim to compensation against the employer is concerned. Morally speaking, those who employ men on dangerous work without doing all in their power to obviate the danger are highly reprehensible, as I think the company were in the present instance. The workman who depends on his employment for the bread of himself and his family is thus tempted to incur risks to which, as a matter of humanity, he ought not to be exposed. But looking at the matter in a legal point of view, if a man, for the sake of employment, takes it or continues in it with a knowledge of its risks, he must trust himself to keep clear of injury': Woodley v. Metropolitan Dist. Ry. Co., L. R. 2 Ex. Div. 384; Baltimore etc. R. R. Co. v. State, 75 Md. 152, 32 Am. St. Rep. 872, 23 Atl. 310.

b. Criticism-Unequal Footing of the Parties. The doctrine of assumption of risks is a matter of contract between master and servant, and may be regarded as only one phase of the broader doctrine expressed in the maxim, "Volenti non fit injuria." The theory is that one seeking employment is not bound to accept a service which he knows or should know involves risks and perils, and that, if he chooses of his own volition to engage in such service, he cannot be heard to complain if disaster overtakes him. The fallacy, or at least the injustice, of this theory consists in assuming that the employé acts voluntarily in the full sense of that term, and in further assuming that the state has not such an interest in the lives of its citizens that the law will protect them against contracting their safety away. Master and servant do not stand on an equal footing

The means of production, in these modern times, have passed under the control of a comparatively few individuals. They are in the hands of the employers. It is idle to say that the employé need not engage in a service unless he chooses so to do. He has no choice. In many cases he must accept the employment offered, if he would work at all and avoid the consequences of idleness. Moreover, many lines of work are inherently dangerous, such as mining, railroading, and electrical work, yet the performance of such work is necessary and beneficial to the public at large and profitable to the employer. Of the three parties, the public, the employer, and the employé, why should the latter assume the risk? Why should not the employer, if he chooses to embark in an enterprise, dangerous or otherwise, be required to assume the risk of injury to his workmen just as he is required to assume the risk of injury to his appliances and the other risks of the business?

The harsh and unjust doctrine of assumption of risks, if it ever was adequate to the proper protection of employés, has long since ceased to be. And it is gratifying to note that legislatures have made a beginning toward its abolition. Thus, the fellow-servant rule, one of the most vicious phases of the law of assumption of risks, has, at least in certain lines of employment, been abrogated in some jurisdictions: See Southern Ry. Co. v. Johnson, 114 Ga. 329, 40 S. E. 235; Texas etc. Ry. Co. v. Smith, 114 Fed. 728, 52 C. C. A. 360. And statutes have been enacted in effect prohibiting an employé from assuming the risk of a hazardous appliance forbidden by statute: Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 93 Am. St. Rep. 887, 52 Atl. 531. And see Youngblood v. South Carolina etc. R. R. Co., 60 S. C. 9, 85 Am. St. Rep. 824, 38 S. E. 232. In case a master violates an express statutory duty imposed for the better protection of employés, there are authorities holding that neither the doctrine of assumption of risks nor of contributory negligence applies, although there are decisions to the contrary: See Davis Coal Co. v. Polland, 158 Ind. 607, 92 Am. St. Rep. 319, 62 N. E. 492; Martin v. Chicago etc. Ry. Co., 118 Iowa, 148, 91 N. W. 1034, 96 Am. St. Rep. 371, and cases cited in the cross-reference note thereto; monographic note to Wellston Coal Co. v. Smith, 87 Am. St. Rep. 586, 587.. The policy of holding that the doctrine of contributory negligence does not apply in such a case is not free from doubt, but to hold that the doctrine of assumption of risks does not apply would be in a large measure to nullify the statute, for what means for its enforcement are so efficient as giving employés a right to recover for injuries sustained where the statutory duty of the employer is ignored For authorities holding that when a master is violating a statute enacted for the protection of employés, the latter do not assume the risk, see Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 93 Am. St. Rep. 887, 52 Atl. 531; Narramore v. Cleveland etc. Ry. Co., 96 Fed. 298, 37 C. C. A. 499. The opinions in both these cases are very able.

We quote from the Vermont case: "If the doctrine of assumption of risk is to be regarded as contractual, then we hold that the statutory protection cannot be bought and sold, but that the policy of the law forbids it in the interest of public welfare. . . . . If it be -objected that the statute, when thus read, deprives the laborer of his right to make his own contracts, the answer is to be found in the principle that the state has a right to protect its poor and helpless, even to that extent, if need be. . . . . Everybody knows that there are large classes who get their living from day to day in such service as that in which the plaintiff was engaged, who must work where they are working and keep at their job at all hazards, if they would not bring themselves and their families to want. To say to such men, 'If you do not like the conditions, you may quit,' is often only a heartless mockery. The legislature understood this; and the act we are considering was an attempt to better the condition of that very class by compelling the employer to yield something of profit in the interest of humanity, and to save the lives and limbs of his workmen by adopting safer instruments of labor. It seems to us a court should be very slow to construe the beneficial purpose out of such a law, or to make it of no effect. On broad lines of public good and social progress, it is plain that such legislation must be largely looked to if government is to remain firm and secure in the respect and affection of the people."

The expression is often met with in the books that a servant assumes the risks of an employment when they are as apparent to him as to the master, or when he has equal means with the master of knowing them. But, as has been very aptly observed, "the master has no right to assume the servant will use such means of knowledge, because it is not part of the duty of the servant to inquire into the sufficiency of these things. The servant has a right to rely upon the master's inquiry, because it is the master's duty so to inquire, and the servant may justly assume all these things are fit and suitable for the use he is directed to make of them": Magee v. North Pac. Coast R. R. Co., 78 Cal. 430, 12 Am. St. Rep. 69, 21 Pae. 114. And even when they have equal knowledge of the danger, it must be remembered that master and servant do not stand on terms of equality. The position of the servant is one of subordination and obedience, and he has a right to rely on the supposed superior skill and knowledge of the master. He is not entirely free to act on his own suspicions of danger, and he cannot be deemed guilty of contributory negligence in obeying an order, unless the danger is so glaring that a reasonably prudent man would not incur it: Stephens v. Hannibal etc. R. R. Co., 96 Mo. 207, 9 Am. St. Rep. 336, 9 S. W. 589; Halliburton v. Wabash etc. Ry. Co., 58 Mo. App. 27.

C.

Servant's Fear of Dismissal.-A servant's fear of being dismissed must frequently be a powerful incentive to his continuing in a service attended with danger. But the law seems to pay little

regard to this fear as a ground for denying the application of the rule of assumption of risk. It has been held that the fact that it is necessary for an employé to work in order to support himself and family, or the fact that his fear of losing his position is one of the motives which induce him to continue a dangerous work, does not. relieve him from assuming the risks: Lamson v. American Axe etc. Co., 177 Mass, 144, 83 Am. St. Rep. 267, 58 N. E. 585; Orr v. Southern. Bell Tel. Co., 130 N. C. 627, 41 S. E. 880; Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171. And in Leary v. Boston etc. R. R. Co., 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115, it is decided that a servant required to perform duties not embraced in the original hiring, and more dangerous, and undertaking the same, with knowledge of the increased hazard, through fear of losing his place, has no remedy against the master if injured by reason of his ignorance or inexperience. See, too, Wormwell v. Maine Cent. R. R. Co., 79 Me. 397,1 Am. St. Rep. 321, 10 Atl. 49.

The above decisions bring out the harsh and rigorous character of the doctrine of assumption of risks to which attention has been called in the preceding paragraphs. In East Tenn. etc. R. R. Co. v. Duffield, 80 Tenn. (12 Lea) 63, 47 Am. Rep. 319, it is held that where a laborer is furnished a hammer obviously and dangerously defective, and he protests to the foreman against working with it, but. is told to use it on pain of losing his place, and the work at hand requires speedy performance, the master is liable if he sustains injury from the defective tool.

d. Appreciation of the Danger.-While an employé is generally held to have assumed the ordinary risks of the service which are known or apparent to him, still mere knowledge of a risk or danger, without a full appreciation and comprehension of it, is not conclusive against his right of recovery in the event of injury: Frye v. Bath Gas etc. Co., 94 Me. 17, 46 Atl. 804; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 31 Am. St. Rep. 537, 29 N. E. 464; Mayott v. Norcross (R. I.), 52 Atl. 894. And there is a distinction between knowledge of defects in premises and appliance and knowledge of the risks and dangers that result from such defects. If an employé has knowledge of a defect, or is chargeable with notice of it because obvious, but is not aware of the danger incident to and attending it, he is not precluded from recovering damages incurred by reason of such defect: Nofsinger v. Goldman, 122 Cal. 609, 55 Pac. 425; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Illinois Steel Co. v. Ryska, 200 Ill. 280, 65 N. E. 734; Hartrich v. Hawes, 202 Ill. 334, 67 N. E. 13; Myhan v. Louisiana Elec. etc. Co., 41 La. Ann. 964, 17 Am. St. Rep. 436, 6 South. 799; Christianson v. Northwestern Compo-Board Co., 83 Minn. 25, 85 Am. St. Rep. 440, 85. Nev. 826; Sullivan v. Hannibal etc. R. R. Co., 107 Mo. 66, 28 Am. St. Rep. 388, 17 S. W. 748; Galveston etc. Ry. Co. v. Smith (Tex. Civ. App.), 57 S. W. 999. The assumption of risks must rest upon