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Commentaries on the law of negligence in all relations online

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gages upon any kind of work which requires the use of explosives
assumes the risk ordinarily incident to the use of such dangerous
agencies. 27

24 A foreman on the top floor of a Thlbaudeau, Rap. Jud. Que. 8 B.
factory, who, knowing that a fire R. 449 (opinion and syllabus in
had commenced in one of the lower French). Compare with this case
stories, directed the employes in Hernischel v. Texas Drug Co., 26
his story to return to their work, Tex. Civ. App. 1; s. c. 61 S. W. Rep.
assuring them that there was no 419 (where, on a somewhat similar
danger, when they would easily state of facts, there being no con-
have escaped if they had not been tention that the fire was caused by
thus prevented, was guilty of such the negligence of the defendant or
negligence, even though he acted in that it could have been extin-
good faith and in the belief that guished, it was held not error to
* there was no danger, as to render direct a verdict for the defendant),
the employer liable for the death "Landgraf v. Kuh, 188 111. 484;
of one of the employe's who, when s. c. 59 N. E. Rep. 501.
the fire subsequently reached such "Hernischel v. Texas Drug Co.,
story, cast herself out of the win- 26 Tex. Civ. App. 1; s. c. 61 S. W.
dow under the belief that she could Rep. 419.
not otherwise be saved, although a See ante, § 4615.
she could readily have escaped w Prentice v. Wellsville, 66 Hun
by the stairway: McDonald v. (N. Y.) 634; s. c. 50 N. Y. St. Rep.

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GENERAL PRINCIPLES.



[2d Ed.



§ 4704. Assumes Bisks of Exposed Machinery. — The doctrine that
a servant accepts the risks of obvious and unconcealed dangers has
been often applied in cases where servants have been injured while
working about exposed, unguarded; or unfenced machinery. 28 Al-



557; 21 N. T. Supp. 820 (although
he is required to engage in the
work on pain of losing his employ-
ment); Bennett v. Tintic Iron Co.,
9 Utah 291; s. c. 34 Pac. Rep. 61
(assumes the risk of injury from
the\ fall of rocks shaken loose by
blasting in a mine, in the absence
of negligence on the part of the
employer). Circumstances under
which, in the case of the death of
an engineer from an explosion of
a ooiler, it was held that either
there was no negligence on the part
of the employer, or the engineer as-
sumed the risk: Kramer v. Willy,
109 Wis. 602; s. c. 85 N. W. Eep.
499. It has been held that an em-
ploy6 in a quarry does not assume
the risk of finding unexploded dyna-
mite in the rock which he is re-
quired to break: Alton Lime 6c.
Co. v. Calvey, 47 111. App. 343.

* Arkadelphia Lumber Co. v.
Bethea, 57 Ark. 76; s. c. 20 S. W.
Rep. 808 (fingers of servant cut off
by revolving knives while under a
planing-machine, oiling it) ; Wil-
lingham v. Rockdale Oil 6c. Co., 101
Oa. 713; s. c. 29 S. E. Rep. 30 (serv-
ant injured while trying to keep a
running belt in place) ; Atlas En-
gine Works v. Randall, 100 Ind.
293; s. c. 60 Am. Rep. 798 (servant
injured by wiping off machine while
in motion, allowing the waste which
he is using to hang down and get
caught in the cogwheels below, —
contributory negligence as matter
of law); Becker v. Baumgartner, 5
Ind. App. 576; s. c. 32 N. E. Rep.
78L6 (servant knowing that there is
no "shifter" for a belt which he is
required to shift from one pulley
to another, assumes all the risks);
• Sanborn v. Atchison 6c. R. Co., 35
Kan. 292 (unboxed cogwheels; boy
seventeen years old) ; Hood v. Ar-
gonaut Cotton-Mill Co., 23 Ky. L.
Rep. 460; s. c. 62 S. W. Rep. 1043
(no off. rep.) (covering of machin-
ery removed, but evidence did not
show when or by whom); Kelly
v. Barber Asphalt Co., 93 Ky. 363;
s. c. 14 Ky. L. Rep. 356; 20 S.
W. Rep. 271 (boy of seventeen



years injured while leaning over
a revolving shaft, by his loose
shirt catching upon the shaft);
Reis v. Struck, 23 Ky. L. Rep. 1113;
b. c. 64 S. W. Rep. 729 (no off. rep.)
(danger of having hands pushed
into knives of planing-machine by
reason of board turning over held
to be an obvious risk and assumed,
though plaintiff had asked for an
assistant and was assured he could
do the work safely alone); Demers
v. Deering, 93 Me. 272; s. c. 44 Atl.
Rep. 922; Jones v. Manufacturing
6c. Co., 92 Me. 565; s. c. 43 Atl.
Rep. 512 (risk of injury from logs
slipping from hooks and falling);
Demers v. Marshall, 178 Mass. 9;
s. c. 59 N. E. Rep. 454 (sleeve
caught in a set-screw while oiling
machinery, which set-screw could be
seen from the floor) ; Connelly v.
Hamilton Woolen Co., 163 Mass.
156; b. c. 39 N. E. Rep. 787 (serv-
ant, duly cautioned, slipped and
fell while the machinery was in
motion); Gleason v. Smith, 172
Mass. 50; s. c. 51 N. E. Rep. 460
(guard made by workman too nar-
row and did not cover the entire
sweep of the knives — danger obvi-
oub when machine at rest — employe 1
experienced); Henry v. King Philip
Mills, 155 Mass. 361; s. c. 29 N. E.
Rep. 581; Gilbert v. Guild, 144 Mass.
601 (boy nineteen years of age, un-
derstanding the danger); Ford v.
Mount Tom Sulphite Pulp Co., 172
Mass. 544; s. c. 52 N. E. Rep. 1065;
Kleinest v. Kunhardt, 160 Mass.
230; s. c. 35 N. E. Rep. 458; Con-
nelly v. Eldredge, 160 Mass. 566 ; s. c.
36 N. E. Rep. 469 (female servant
injured while adjusting a cloth to
a steam ironing-machine or mangle,
her fingers being caught between
two inwardly revolving cylinders) ;
Daigle v. Lawrence Man. Co., 159
MaBS. 378; s. c. 34 N. E. Rep. 458
(employ 6 injured while removing
waste from a slowly revolving cyl-
inder) ; Richstaln v. Washington
Mills Co.. 157 Mass. 538; s. c. 2 N.
E. Rep. 907; Cluny v. Cornell Mills,
160 Mass. 218: s. c. 35 N. E. Rep.
772 (saw with guard improperly

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4 Thomp. Neg.] assumption of risk by the servant.

though there may be a statute with which the employer neglects to
comply, enjoining upon him the duty of guarding cogs, gearing, and



placed); Goodnow v. Walpole Em*
ery Mills, 146 Mass. 261; s. c. 5 N.
Bng. Rep. 719; 15 N. E. Rep. 576
(experienced machinist injured by
revolving set-screw); Pratt v.
Prouty, 153 Mass. 333; s. c. 26 N.
E. Rep. 1002 (boy fifteen years of
age injured by having his hand
drawn into a machine and against
a knife) ; Tinkham v. Sawyer, 153
Mass. 485; s. c. 27 N. E. Rep. 6
(boy over sixteen years of age
placed himself too near a dangerous
machine, and slipped and thrust his
arm into it) ; Downey v. Sawyer,
157 Mass. 418; s. c. 32 N. E. Rep.
654 (boy sixteen years old injured
in consequence of obeying an order
to put a belt on a machine, by get-
ting his arm caught in the gearing,
though he did not appreciate the
whole extent of the risk) ; Dona-
hue v. Washburn Ac. Man. Co., 169
Mass. 574; s. c. 48 N. E. Rep. 842
(experienced workman caught his
glove on set-screw of machine while
reaching into it to remove a reel) ;
Middaugh v. Mitchell, 120 Mich.
581; s. c. 6 Det. Leg. N. 272; 79 N.
W. Rep. 806 (injury from revolving
set-screw — employe 1 specially warn-
ed) ; Journeaux v. E. H. Stafford
Co., 122 Mich. 396; s. c. 81 N. W.
Rep. 259 (employ^ working about a
sawmill, got too near the saw);
Schroeder v. Michigan Car Co., 56
Mich. 132 (employ^ caught his hand
in the exposed cogs in an ordinary
planing-machine, with which he
was familiar) ; Craver v. Christian,
36 Minn. 413; s. c. 31 N. W. Rep.
457 (neglect of master to fence or
cover complicated and dangerous
machinery not enough to make him
liable to employ 6 who works about
the same with full knowledge of
the danger) ; Blom v. Yellowstone
Park Assn., 86 Minn. 237; s. c. 90
N. W. Rep. 397 (experienced em-
ployg, familiar with the operation
of the . machine and the risks
thereof, injured while operating un-
guarded mangle in laundry) ; Cag-
ney v. Hannibal 6c. R. Co., 69 Mo.
416; Glover v. Kansas City Nut &c.
Co., 153 Mo. 327; s. c. 55 S. W. Rep.
88; Norfolk Beet-Sugar Co. v. Preu-
ner, 55 Neb. 656; s. e. 75 N. W. Rep.
1097 (employ^ worked near a re-

730



volving shaft without removing his
coat or protecting it from coming in
contact with the shaft) ; Coyle v.
Grifflng Iron Co., 62 N. J. L. 540; s.
c. 41 Atl. Rep. 680; s. c. aff'd, 63 N.
J. L. 609; 44 Atl. Rep. 665 (master
not liable for an injury to servant
received while oiling a machine, in
consequence of the machine starting
owing to unexplained and sudden
displacement of a bolt); Graves v.
Brewer, 4 App. Div. (N. Y.) 327;
s. c. 38 N. T. Supp. 566 (employ 6
undertook to clean a machine op-
erated by cogwheels, while in mo-
tion) ; Bond v. Smith, 39 N. Y. St
Rep. 124; s. c. 14 N. Y. Supp. 932;
Carlson v. Monitor Iron Works, 38
App. Div. (N. Y.) 38; s. c. 55 N. Y.
Supp. 992 (employ^ stumbled
against a revolving tumbler from
which flanges and rivet-heads pro-
jected, so as to catch his clothing
and throw him between the tumbler
and the shafting, killing him — was
familiar with the machine and the
risk was obvious); Roth v. North-
ern 6c. Lumbering Co., 18 Or. 205;
s. c. 22 £ac. Rep. 842; Kelley v.
Silver Spring 6c. Co., 12 R. I. 112
(unboxed driving-gear, operated by
a servant for several weeks without
complaint) ; Morancy v. Hennessey,
24 R. I. 205; s. c. 52 Atl. Rep. 1021
(girl operating a mangle, who had
been warned to keep her hands out
of the rollers, which were unguarded,
was injured by a sheet sticking on
a rough place in the table and giv-
ing way suddenly) ; Brown v. Tabor
Mill Co., 22 Wash. 317 ? s. c. 60 Pac.
Rep. 1126 (clothing caught in rap-
idly-revolving shaft); Helmke v.
Thilmany, 107 Wis. 216; s. c. 83 N.
W. Rep.*360; Stephenson v. Duncan,
73 Wis. 404; s. c. 41 N. W. Rep. 337
(saw projecting over itB frame);
Muenchow v. Theodore Zschetzsche
6 Son Co., 113 WiB. 8; s. c. 88 N. W.
Rep. 909 (experienced and intelli-
gent man working in close prox-
imity to rapidly revolving shaft in
plain view, assumed risk as matter
of law) ; Peterson v. Sherry Lumber
Co., 90 Wis. 83; s. c. 62 N. W. Rep.
948 (skilled employ^ working at a
machine called an " edger " assumes
the risk of the improper location of
the iron band or guard placed above



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GENERAL PRINCIPLES.



[2d Ed.



other exposed machinery, yet the servant is deemed to accept the risk
if the conditions are such that he would be put under this disadvan^
tage in the absence of any such statute. 29

§4705. Risks Assumed in the Work of Making a Dangerous
Place Safe. — The rule that the master must exercise ordinary care to
provide a reasonably safe place in which the servant is to work, does
not apply to cases in which the very work which the servant is em-
ployed to do consists in making a dangerous place safe, or in con-
stantly changing the character of the place for safety as the work
progresses. 80 On the other hand, the very nature of such work con-
veys to the servant an obvious suggestion of peculiar danger, and
charges him with an assumption of the ordinary risks attendant upon
the service in. which he is engaged. 81

Article VII. Bisk op Injury prom Dangerous or Defective
Tools, Machinery, Appliances, etc.



Section

4707. Assumes riskB of known de-

fects in tools, appliances,
etc.

4708. Assumes risks of injuries

from defects in appliances
in known and common use.



Section

4709. Assumes risks of injuries

from defects in machines
of ordinary construction,
although other and safer
machines are in use.

4710. Risk of injuries from danger-

ous machinery.



§4707. Assumes Bisks of Known Defects in Tools, Appliances,
etc. — It is a part of this doctrine that the servant assumes the risks
of known defects in machinery, tools, appliances, etc., 1 or of improper



tbe saws to prevent boards or frag-
ments from being thrown back);
Townsend v. Langles, 41 Fed. Rep.
919; The Maharajah, 40 Fed. Rep.
784 (uncovered cogwheels).

"Knisley v. Pratt, 148 N. Y. 372;
rev'g s. c. 75 Hun (N. Y.) 323; 58
N. Y. St. Rep. 213; 31 Abb. N. Cas.
(N. Y.) 289; 26 N. Y. Supp. 1010.
Somewhat opposed to the doctrine
of the text is a case where it ap-
peared that the rods protecting the
gearing of machinery had become
bent, so as to produce an opening,
and that the plaintiff, in passing
around the machinery, slipped on
the floor, rendered slippery by the
spraying of oil from the machinery,
and that her hand passed through



the opening and was crushed in the
cogwheel. It was held that the con-
tention that she assumed the risk
of falling on the floor, and that such
fall was the proximate cause of the
Injury, was untenable, since she
would not have been injured had it
not been for the negligence of the
master in failing properly to guard
the gearing, as required by statute:
Lore v. American Man. Co., 160 Mo.
608; s. c. 61 S. W. Rep. 678.

"FinalyBon v. Utica Min. &c. Co.,
67 Fed. Rep. 507; ante, §§ 3876, 3877.

n Finalyson v. Utica Min. &c. Co.,
67 Fed. Rep. 507. See also, Gulf
&c. R. Co. v. Jackson, 65 Fed. Rep.
48; s. c. 12 C. C. A. 507.

1 Bell v. Western Ac. R. Co., 70

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4 Thomp. Neg.] assumption of risk by the servant.

appliances furnished for the performance of a particular task, or
where no proper appliance is furnished, 2 although the defect or dan-

Ga. 566; Atlanta Ac. R. Co. v. Ray, Supp. 591; Horrigan v. New York

70 Ga. 674 (knew of defect in stove ftc. R. Co., 7 App. Div. (N. Y.) 377;

and yet continued to work about s. c. 39 N. Y. Supp. 938; Pleasants

it without communicating the fact v. Raleigh ftc. R. Co., 95 N. C. 195

to the company) ; Reid v. Central R. (section-master used a defective

ftc. Co., 81 Ga. 694; s. c. 8 S. E. Rep. dump-car after he had been ordered

629 (had a better opportunity to to get another) ; National Malleable

know how good the rope was than Castings Co. v. Luscomb, 19 Ohio

any one else had); Baker v. West> C. C. 673; Kelley v. Silver Spring

ern ftc. R. Co., 68 Ga. 699 (used Bleaching ftc. Co., 12 R. I. 112;

tools known to be defective and Morancy v. Hennessey, 24 R. I. 205;

dangerous, there being no others); s. c. 52 Atl. Rep. 1021 (employe

Nelson v. Central ftc. R. Co., 88 Ga. guiding cloth through mangle in-

225; s. c. 14 S. E. Rep. 210; East jured by reason of roughness of

St. Louis ftc. R. Co. v. Shannon, 52 table of machine, such roughness

111. App. 420 (no right to presume having always been present); Nash-

safety where he has knowledge to ville ftc. R. Co. v. Gann, 101 Tenn.

the contrary); Louisville ftc. R. Co. 380; s. c. 47 S. W. Rep. 493; Mis-

v. Allen, 47 111. App. 465; Bedford souri ftc. R. Co. v. Wood (Tex. Civ.

Belt R. Co. v. Brown, 142 Ind. 659; App.), 35 S. W. Rep. 879 (no off.

s. c. 42 N. E. Rep. 359; Jackson v. rep.); Texas ftc. R. Co. v. Bradford,

Kansas City ftc. R. Co., 31 Kan. 66 Tex. 732; St. Louis ftc. R. Co. v.

761; Ashland Coal ftc. Co. v. Wal- Threat, 12 Tex. Civ. App. 375; b. c.

lace, 101 Ky. 626; Mundle v. Hill 34 S. W. Rep. 152; 3 Am. ft Eng. R.

Man. Co., 86 Me. 400; s. c. 30 Atl. Cas. (N. S.) 358; Week v. Fremont

Rep. 16; Michael v. Stanley, 75 Md. Mill Co., 3 Wash. 629; s. c. 29 Pac.

464; s. c. 23 Atl. Rep. 1094 (boy Rep. 215 (an employ! In a sawmill,

eighteen yearB old injured by a who continues to operate a saw

saw with which he was familiar) ; held back by a wire rope, knowing

Pingree v. Leyland, 135 MaBS. 398; it to be old and worn and required

Coullard v. Tecumseh Mills, 151 to sustain a weight of 150 pounds,

MaBS. 85; s. c. 23 N. E. Rep. 731; and knowing that if the rope should

Foley v. Pettee Mach. Works, 149 break the saw will swing forward

Mass. 294; s. c. 4 L. R. A. 61; 21 and strike him, — assumes the risk) ;

N. E. Rep. 304; Goodnow v. Walpole Ladonia Cotton Oil Co. v. Shaw, 27

Emery Mills, 146 MasB. 261; Rich- Tex. Civ. App. 65; 8. c. 65 S. W.

ards v. Rough, 53 Mich. 212; Eich- Rep. 693 (employ 6 knew that plat-

ler v. Hauggi, 40 Minn. 263; s. c. 41 form sagged down close to rollers

N.W. Rep. 975; Bartley v. Howell, 82 of oil-cake crusher, and that force

Minn. 382; s. c. 85 N. W. Rep. 167; was necessary to feed oil-cake

Scharenbroich v. St. Cloud Fiber- through slot in platform on to

Ware Co., 59 Minn. 116; s. c. 60 N. rollers — assumed riBk of cake giv-

W. Rep. 1093; Alexander v. Tennes- ing way suddenly and letting his

see ftc. Min. Co., 3 N. M. 173; s. c. hand go through into the rollers) ;

3 Pac. Rep. 735; Reynolds v. Knee- Erdman v. Illinois Steel Co., 95 Wis.

land, 63 Hun (N. Y.) 283; s. c. 44 6; s. c. 69 N. W. Rep. 993.

N. Y. St. Rep. 458; 17 N. Y. Supp. * Henry Wrape Co. v. Huddleston,

895; Monoghan v. New York ftc. R. 66 Ark. 237; s. c. 50 S. W. Rep. 452;

Co., 45 Hun (N. Y.) 113; s. c. 9 Yates v. McCullough Iron Co., 69

N. Y. St. Rep. 672; Healey v. Smith, Md. 370; s. c. 19 Md. L. J. 837; 16

63 Hun (N. Y.) 631; s. c. 43 N. Y. Atl. Rep. 280; Price v. United States

St. Rep. 804; 17 N. Y. Supp. 851; Baking Co., 130 Mich. 500 ; s. c. 9 Det.

Howey v. Lake Shore ftc. R. Co., Leg. N. 122; 90 N. W. Rep. 286

13 Misc. (N. Y.) 641 (brakeman at- (employ 6 injured while using her

tempted to remedy the defect, the foot to shift a belt, no belt-shifter

danger from which was obvious); having been provided — risk as-

Windover v. Troy City R. Co., 4 Burned).
App. Div. (N. Y.) 202; s. c. 38 N. Y.

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GENERAL PRINCIPLES. [2(1 Ed.

ger results from the negligence of the master,* or from his. violation
of a statute, 4 or a municipal ordinance. 5

§4708. Assumes Risks of Injuries from Defects in Appliances
in Known and Common Use. — A servant assumes the risks of injuries
from simple and ordinary appliances and methods, the nature of
which he understands, or which is easily understood. 6 It is a part
of this doctrine that the duty, of inspection, by an employer, of the
appliances used by his employes, does not extend to the small and
common tools in every-day use, of the fitness of which the employfe
using them may reasonably be supposed to be competent judges. 7 The
rule that a workman assumes the risks from defects in simple tools,
of which the workmen are as good judges as the master, does not
apply to defects in tools used by fellow servants, the reason being that
the injured -servant does not have an opportunity to inspect them. 8

§ 4709. Assumes Risks of Injuries from Defects in Machines of
Ordinary Construction, although Other and Safer Machines are in
Use. — A servant assumes the risks incident to the use of a machine of
ordinary construction, similar to other machines in use for the same
purpose, where the defect is open and visible, although other and safer
machines are in use, 9 and although the injury might have been pre-
vented by a contrivance sometimes applied to similar machines. 10

§4710. Risk of Injuries from Dangerous Machinery. — Under
many circumstances, the master will not be blameworthy for not
knowing more about the machinery than the servant knows, — as
where a servant is an experienced machinist, who has worked about the

•Hunt v. Kile, 98 Fed. Rep. 49; 7 Wachsmuth v. Shaw Electric

s. c. 38 C. C. A. 641. Crane Co., 118 Mich. 275; s. c. 76 N.

4 Williams v. Wagner Co., 110 Wis. W. Rep. 497; 5 Det. Leg. N. 510.

456; s. c. 86 N. W. Rep. 157; ante, See also, Miller v. Erie R. Co., 47

§ 4620. Compare ante, § 4621. N. Y. Supp. 285; s. c. 21 App. Div.

•Swift ft Co. v. Pue, 66 111. App. (N. Y.) 45; Marsh v. Chickering,

651. 101 N. Y. 396.

•Sims v. East &c. R. Co., 84 Ga. 8 Daly v. Lee, 167 N. Y. 537

152; s. c. 10 S. E. Rep. 543; Foster (mem,); s. c. 60 N. E. Rep. 1109;

v. Kansas Salt Co., 60 Kan. 859; s. aff'g s. c. 39 App. Div. (N. Y.) 188;

c. 57 Pac. Rep. 961; Omaha Bot- 57 N. Y. Supp. 293; 6 Am. Neg. Rep.

tling Co. v. Theiler, 59 Neb. 257; 150.

s. c. 80 N. W. Rep. 821; Henggler • French v. Aulls, 72 Hun (N. Y.)

v. Conn, 68 N. J..L. 240; s. c. 52 Atl. 442; s. c. 54 N. Y. St. Rep. 866; 25

Rep. 280 (defective hinge connect- N. Y. Supp. 188.

ing two parts of ladder) ; Plunkett M Ross v. Pearson Cordage Co., 164

v. Donovan, 36 N. Y. St Rep. 91; Mass. 257; s. c. 41 N. E. Rep. 284;

s. c. 12 N. Y. Supp. 454; Olson v. 2 Am. ft Eng. Corp. Cas. (N. S.)

Doherty Lumber Co., 102 Wis. 264; 585; 49 Am. St. Rep. 459.
s. c. 78 N. W. Rep. 572.

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4 Thomp. Neg.] assumption of risk by the servant.

machinery for fourteen months, without anticipating a particular dan-
ger, such as the danger of bolts projecting from the flywheel coming
in contact with a pipe running near the wheel ;\* but this cannot be
affirmed of those dangers and defects which would be discoverable by
such an inspection as the law requires of the master, but not by such
inspection and observation as may fairly be expected of the servant. 12
So, although the servant may have equal opportunities with the mas-
ter to discover defects in a machine about which he is required to
work, yet where the duty of inspection rests upon another servant,
and the defect is one which would not be discovered from the mere
fact of using the machine, the employ6 injured by the defect will not
be conclusively presumed to have assumed the risk of injury from it. 18
Again, it may be a matter of skill to determine whether a machine or
appliance is in fact dangerous, — as, to determine how much strain a
wheel which has been worn will stand, in which case an employe who
is not an expert will not be conclusively held to have assumed the
risk from the fact of working about it. 14 So also, if the timber used
as a lever is sound and suitable for the purpose, but not large enough
for the strain put upon it, the risk of its breaking by reason of not
being large enough has been held to be a danger assumed by the serv-
ant, it being obvious. 15 On the other hand, if the machinery or appli-
ance is unusually dangerous, it is said that the employ6 assumes only
such risk from using it as a reasonably prudent and careful man would
expect to proceed therefrom. 16 Again, it has been held that the mere
fact that an employ6 is willing to operate a machine which he knows
is lacking in safety-appliances which have come into general use,
does not, of itself, put upon him the assumption of the risk. 17 Dis-
missing theories, it has been held that the risk was not assumed as
matter of law, under the following circumstances: — Where a wuz-
chine started from a dead stop while being operated in the manner
recognized in the defendant's factory, and cut off both the arms of a
workman employed thereon, 18 — the view of this and other courts being
that the likelihood of the sudden starting of machinery, when the

"Detroit Crude-Oil Co. v. Orable, "Bridges v. St. Louis Ac. R. Co.,
94 Fed. Rep. 73; s. c. 36 C. C. A. 94. 6 Mo. App. 389.
"Ante, §§ 3801, 4643, 4650. "Bonn v. Chicago Ac. R. Co., 106
"Nicholds v. Crystal Plate-Glass Mo. 429; s. c. 17 S. W. Rep. 680.
Co., 126 Mo. 55; s. c. approved by "Kerns v. Chicago &c. R. Co., 94
court in banc, 28 S. W. Rep. 991. Iowa 121; s. c. 62 N. W. Rep. 692.
This rule was applied, although the "Lloyd v. Hanes, 126 N. C. 359;
injured employe was himself a fore- s. c. 35 S. E. Rep. 611 (must be so
man of the shop and had helpers grossly or clearly defective that em-
working under him, it not being ployg must know the extra risk),
his duty to see that the appliances "Packer v. Thomson-Houston
were kept in order: Nicholdsv. Electric Co., 175 Mass. 496; s. c. 56
Crystal Plate-Glass Co., supra. N. E. Rep. 704.



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agencies furnished to keep it at rest are in the proper position, is not
one of the ordinary risks^of the employment voluntarily assumed by
the servant; 19 where an employ^ was set at work at night near a gear-
ing not protected as required by statute, and was not informed of it
when instructed concerning it, but was injured by being caught in it
before he had an opportunity to become familiar with his surround-
ings; 20 where an experienced machinist left the head of his machine
and went to a lunch-box some eight or ten feet distant, and then, turn-
ing around and facing the machine, which worked regularly, and
which threw chips only occasionally, and not then without giving
warning by its irregular action, was injured from a flying chip of
steel, and >chips. had never before struck at the point where he was
standing to his knowledge; 21 where an employ6 fifteen years" old had
his sleeve caught while holding a belt on a pulley made of rags, to
assist in its repair. 22



Article VIII.



Bisk of Injury from the Unfitness or Neg-
ligence of Fellow Servants.



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