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Commentaries on the law of negligence in all relations online

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apply, where death does not result from the injury, in so far as those
rules are peculiar to the relation of master and servant. In the cases
which have arisen under it, the court have cited and applied their pre-
vious decisions in cases where death did not result from the injury,
and where the statute was, hence, not involved; and they have also
cited and applied the language of text-writers and the decisions of
other courts on the general doctrines of negligence. 4 The somewhat
exceptional view of the Kentucky court as to who are to be deemed fel-
low servants engaged in the same common employment, does not seem
to owe its origin, in any degree, to a consideration of the terms of this
statute. 5 If the person killed was an employ^ of a jailway company,
and not a stranger to it, in order to a recovery under the statute the
misconduct of the company or its agents or servants must have been so
gross as to imply actual malice, or anti-social recklessness. 6 But if the
person killed was a stranger to the railway company, then, under an-
other section of the same statute, 7 while punitive damages cannot be
recovered unless the jury should find that the company, its agents or
servants, had been guilty of willful neglect, yet there can be a recovery
of compensatory damages if the killing was the result of want of ordi-
nary care on the part of the defendant. 8 When the grade of negligence
denominated "willful neglect" is established, the court has generally
ruled that the master must pay damages, no matter how negligently
the person killed may have acted. 9 But in one case 10 a recovery was
denied on the ground of contributory negligence in the deceased ; and
the opinion proceeded on the idea that such negligence on the part of
the servant as is implied from a voluntary assumption x>f risks of acci-
dent which may flow from visible dangers which are the result of the
master's negligence will operate to bar a recovery under the statute.
On the other hand, if the killing was by a railway company, then, un-
der the provision of the statute last quoted, as ordinary negligence on
the part of the company will authorize a recovery, so ordinary negli-

*Post t Vol. VI. 10 Bush (Ky.) 263; Claxton v.Lex-

* See, for Instance, Sullivan v. ington ftc. R. Co., 13 Bush (Ky.)
Louisville Ac. Bridge Co., 9 Bush 636.

(Ky.) 81, and Louisville Ac. R. Co, 'Claxton v. Lexington ftc. R. Co.,

v. Filburn, 6 Bush (Ky.) 574. 13 Bush (Ky.) 636; Louisville ftc.

'Post, 8 5297. R. Co. v. Mahony, 7 Bush (Ky.)

• Claxton v. Lexington Ac. R. Co., 235, 239; Dlgby v. Kenton Iron Co.,
13 Bush (Ky.) 636; Jacobs v. Louis- 8 Bush (Ky.) 167; Jacobs v. Louis-
ville Ac. R. Co., 10 Bush (Ky.) 263, ville ftc. R. Co., 10 Bush (Ky.) 263.
273. " Sullivan v. Louisville Ac. Bridge

T Stanton's Rev. Stat. Ky. 510, § 1. Co., 9 Bush (Ky.) 81.
'Jacobs v. Louisville ftc. R. Co.,


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[2d Ed.

gence on the part of the deceased, contributing to the accident, will
be a bar to it. 11 Where a case was put to the jury under instructions
which, in effect, declared the defendant, a railway company, answera-
ble in any event for the death of an employ^, in consequence of a tree
having fallen across its track, the judgment was, of course, reversed. 12

§ 4605. Under Massachusetts Statute Giving Bight of Action for
Injuries Resulting in Death. — A statute of Massachusetts provides
that in certain cases of death occasioned by the negligence of a cor-
poration, etc., the damages shall be "assessed with reference to the
degree of culpability of the corporation or its agents or servants." 18
It is held that a corporation is not rendered liable under this statute
by showing that it had assumed a contractual or gwwi-contractual re-
sponsibility for third persons who were not its servants, but the serv-
ants of a third party, through whose negligence the injury happened. 14

§ 4606. Under Wisconsin Statute Giving Bight of Action for In-
juries Causing Death. — It is held that a recovery can be had under
the statute of Wisconsin making one who negligently causes the death
of another liable to an action for damages if the person killed could
have recovered if death had not ensued, 15 for the death of a railroad
employ^ caused by the negligence of other employes for which the de-
ceased could have maintained an action under the Fellow-Servant Act
of that State M if the injury had not been fatal. 1 *

u Jacobs v. Louisville Ac. R. Co.,
10 Bush (Ky.) 263; Claxton v. Lex-
ington Ac. R. Co., 13 Bush (Ky.)

u Louisville Ac. R. Co. v. Fllburn,
6 Bush (Ky.) 574.

"Mass. Rev. Laws 1902, ch. 171,
§ 2; Mass. Pub. Stat, ch. 112, § 212.

"Littlejohn v. Fitchburg R. Co.,
148 Mass. 478; s. c. 2 L. R. A. 602;
20 N. B. Rep. 103. In this case the
defendant was operating a road
owned by the Commonwealth, under
an agreement by which the Com-
monwealth was to maintain the
road-bed. The train was derailed
by reason of a defect in the road-
bed, due to the negligence of the

Commonwealth, killing the children
of the plaintiff, who was employed
by the Commonwealth, and, with his
children, was riding on a free pass:
Littlejohn v. Fitchburg R. Co., su-

"Wis. Stat. 1898, | 4255.

» Wis. Stat 1898, § 1816; Laws
1893, ch. 220.

* Ban v. Chicago 6c. R. Co., 95
Wis. 69; s. c. 69 N. W. Rep. 997.
As to when an employ^ of a rail-
way company can recover under the
Wisconsin Fellow-Servant Act for
injuries sustained through the negli-
gence of fellow servants, — see post,
§ 5309.


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part n.



CXVIII. General Principles, §§ 4608-4716.

Art. I. General Doctrines and Theories, . §§ 4608-4636.

Art. II. As to the Servant's Knowledge or

Means of Knowledge of the Bisks, §§ 4640-4654.

Art. III. Continuing in Service after Ac-
quiring Knowledge of Danger, . §§ 4657-4672.

Art. IV. Bisk of Dangers Outside of Scope

of Employment, §§ 4675-4683.

Art. V. Bisks Assumed by Minors and In-

experienced Persons, .-..§§ 4685-4694.

Art. VI. Bisk of Dangers in Premises or

Place of Work, §§ 4697-4705.

Art. VII. Bisk of Injury from Dangerous or
Defective Tools, Machinery, Ap-
pliances, etc., §§ 4707-4710.

Art. VIII. Bisk of Injury from the Unfitness
or Negligence of Fellow Serv-
ants, §§ 4712-4716.

CXIX. Accepting the Bisks of Bailway Service, . §§ 4718-4797.

Art. I. , Accepting Bisks of Injuries in

Coupling and Uncoupling Cars, §§ 4718-4731.

Art. II. Accepting Bisks of Injuries from
Unblocked Progs, Switches,
Guard-Bails, Defective Cattle-
Guards, Culverts, and Other De-
fects in the Bailway-Track, . . §§ 4734-4744.

Art. III. Bisk of Injury from Objects Too

Near the Track, Engine, or Cars, §§ 4747-4762.

Art. IV. Accepting or Not Accepting the
Bisk of Other Injuries in Bail-
way Service, §§ 4765-4797.

CXX. Accepting Bisk of Injury from Elevators

in Buildings, §§ 4802-4805.


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


CXXI. Bisks Assumed and Not Assumed by Min-
ers and Other Persons Working in

Mines, '....§§ 4807-4810.

CXXII. Various Other Bisks Assumed or Not As-
sumed, §§ 481B-4841.



Art. I. General Doctrines and Theories, §§ 4608-4636.

Art. II. As to the Servant's Knowledge or Means of Knowledge

of the Bisks, §§ 4640-4654.
Art. III. Continuing in Service after Acquiring Knowledge of

Danger, §§ 4657-4672.
Art. IV. Bisk of Dangers Outside of Scope of Employment,

§§ 4675-4683.
Art. V. Bisks Assumed by Minors and Inexperienced Persons,

§§ 4685-4694.
Art. VI. Bisk of Dangers in Premises or Place of Work, §§ 4697-

Art. VII. Bisk of Injury from Dangerous or Defective Tools, M*-

chinery, Appliances, etc., §§ 4707-4710.
Art. VIII. Bisk of Injury from the Unfitness or Negligence of Pel-
low Servants, §§ 4712-4716.

Article I. General Doctrines and Theories.


4608. A comprehensive statement of

the doctrine of accepting
the risk.

4609. Special statements of the doc-


4610. Reason of the rule relating to

acceptance of the risk.

4611. Distinction between accept-

ance of- the risk and con-
tributory negligence.

4612. Application of the maxim vo-

lenti non fit injuria.

4613. Servant assumes risks ordina-

rily incident to the employ-


4614. Servant accepting the risk of

master's negligence.

4615. Risks of employments involv-

ing unusual or extraordi-
nary hazards.

4616. Accepts risks of danger from

defect in something for the
condition of which he him-
self id responsible.

4617. Injury from defects which the

servant is employed to re-

4618. Risks of the special or unfore-

seen negligence of the mas-
ter, or his representative.

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[2d Ed.


4619. Risk of injury from the negli-

gence of persons creating
conditions for which the
master is responsible.

4620. Doctrine that risk of injury

from non-compliance with
statutes is assumed and
protection of the statute
waived by the 1 servant.

4621. Contrary doctrine that the

servant does not accept the
risk and waive the protec-
tion of the statute by re-
maining in the service.

4622. Effect of such statutes upon

the contributory negligence
of the servant

4623. Operation of other statutes

upon the question of 'serv-
ant accepting the risk.

4624. Servant proceeding in viola-

tion of known rules accepts

4625. Risk of injury in consequence

of defective rules or the ab-
sence of rules.

4626. Risk of injury from failing to

obey rules which have been
abandoned or revoked.

4627. Does not assume risk of dan-

ger which is questionable or
debatable, etc.


4628. Assumes risk of an unusual

and extra-hazardous method
of performing work.

4629. Assumes risk of injury from

voluntarily adopting a dan-
gerous instead of a safe

4630. Assumption of risk where the

servant is ordered to per-
form a dangerous duty.

4631. Does not assume risk of tem-

porary conditions which are
unusual and extraordinary.

4632. Assumes risk of inevitable or

inscrutable accidents.

4633. Rule as to assumption of risk

does not apply where rela-
tion of master and servant
does not exist

4634. Effect of express contract be-

tween master and servant,
by which the servant as-
sumes the risk.

4635. Contracts exonerating master

from liability in considera-
tion of allowing servant to
participate in railway relief
fund, hospital fund, sick
benefits, accident and death
benefits, etc.

4636. Rules of employer, putting the

risks of the service upon
the employs.

§ 4608. A Comprehensive Statement of the Doctrine of Accepting
the Risk. — If the servant, before he enters the service, knowB, or if
he afterwards discovers, or if, by the exercise of ordinary observation
or reasonable skill and diligence in his department of service, having
regard to his age and experience, he can discover, that the building,
premises, machine, appliance, or fellow servant, in connection with
which or with whom he is to labor, is unsafe or unfit in any particular,
and if, notwithstanding such knowledge, or means of knowledge, he
voluntarily enters into or continues in the employment without ob-
jection or complaint, — he is deemed to assume the risk of the danger
thus known or discoverable, and to waive any claim for damages
against the master in case it shall result in injury to him. 1

1 Hay den v. Smithville Man. Co., 29 Conn. 548; McGorty v. Southern


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

Special Statements of the Doctrine. — This doctrine is so
plain that it could hardly be made plainer by multiplying special

ftc. Teleph. Co., 69 Conn. 635; s. c.
38 Atl. Rep. 359; 61 Am. St Rep.
62; Western Ac. R. Co. v. Bishop, 50
Ga. 465 (assumption of risk under
special contract) ; Johnson v. West-
ern Ac. R. Co., 55 Ga. 133; Central
R. Ac. Co. v. Kenney, 58 Ga. 485
[compare Central R. Ac. Co. v. Kelly,
58 Ga. 1071; Chicago Ac. R. Co. v.
Jackson/ 55 111. 492; s. c. 8 Am. Rep.
661; Camp Point Man. Co. v. Bal-
lou, 71 111. 417; St Louis Ac. R. Co.
y. Britz, 72 111. 256; Chicago Ac. R.
Co. v. Munroe, 85 111. 25; Morris
y. Gleason, 1 Bradw. (111.) 510; To-
ledo Ac R. Co. y. Asbury, 84 111. 429;
Chicago Ac. R. Co. v. Ward, 61 111.
130; Indianapolis Ac. R. Co. v. Flan-
igan, 77 111. 365; Moss v. Johnson, 22
111. -633; Pioneer Fireproof Const
Co. y. Howell, 90 111. App. 122; s. c.
aff'd, 189 111. 123; 59 N. E. Rep. 635;
Lumley v. Caswell, 47 Iowa 159;
8. c. 7 Rep. 559; St Louis Ac. R. Co.
y. Irwin, 37 Kan. 701; s. c. 16 Pac.
Rep. 146; 1 Am. St Rep. 266; Wal-
ker y. Scott (Kan.), 64 Pac. Rep.
615 (no off. rep.); rev'g s. c. 10
Kan. App. 413; 61 Pac. Rep. 1091;
Sullivan v. Louisville Bridge Co.,
9 Bush (Ky.) 81; Tillotson y.
Texas Ac. R. Co., 44 La. An. 95;
s. c. 10 South. Rep. 400 (where
he continues in Jhe service with
knowledge that the proper precau-
tions have not Been taken for his
safety); Buzzell v. Laconia Man.
Co., 48 Me. 113; s. c. 77 Am. Dec.
212; Wormell v. Maine Ac. R. Co.,
79 Me. 397; s. c. 1 Am. St Rep. 321;
4 N. Eng. Rep. 692; 10 Atl. Rep.
49; Hanrathy v. Northern &c. R. Co.,
46 Md. 280; Ladd v. New Bedford
R. Co., 119 Mass. 412; s. c. 20 Am.
Rep. 331; Lovejoy v. Boston Ac. R.
Corp., 125 Mass. 79; s. c. 28 Am.
Rep. 206; Goodnow v. Walpole Em-
ery Mills, 146 Mass. 261; s. c. 15 N.
E. Rep. 576; Scanlon v. Boston ftc.
R. Co., 147 Mass. 484; 8. c. 9 Am. St.
Rep. 732; 18 N. E. Rep. 209; Myers
y. Hudson Iron Co., 150 Mass. 125;
s. c. 15 Am. St Rep. 176; 22 N. E.
Rep. 631; Lothrop v. Fitchburg R.
Co., 150 Mass. 423; s. c. 23 N. E.
Rep. 227; Gleason v. New York Ac.
R. Co., 159 Mass. 68; s. c. 34 N. E.
Rep. 79; Goldthwait v. Haverhill Ac.
St R. Co., 160 Mass. 554; s. c. 36


N. E. Rep. 486; Goodes v. Boston
Ac. R. Co., 162 Mass. 287; s. c. 38
N. E. Rep. 500; French v. Columbia
Spinning Co., 169 Mass. 531; s. c.
48 N. E. Rep. 269; Davis v. Detroit
ftc. R. Co., 20 Mich. 105; 8. c. 4 Am.
Rep. 364; Fort Wayne 4c. R. Co. v.
Gildersleeve, 33 Mich. 133; Woods v.
St Paul Ac. R. Co., 39 Minn. 435;
8. c. 40 N. W. Rep. 510; Le Clair v.
First Division Ac. R. Co., 20 Minn.
9; Devitt v. Pacific R. Co., 50 Mo.
302 [compare Dale v. St Louis Ac.
R. Co., 63 Mo. 455] ; Malm v. Thelin,
47 Neb. 686; s. c. 66 N. W. Rep. 650
(by voluntarily entering into or con-
tinuing in the employment where
the risks are known to him or ob-
vious to persons of his experience
and understanding); Allen v. Bos-
ton Ac. R. Co., 69 N. H. 271; s. c.
39 Atl. Rep. 978; Durand v. New
York Ac. R. Co., 65 N. J. L. 656;
s. c. 48 Atl. Rep. 1013; Atha Ac. Co.
v. Costello, 63 N. J. L. 27; 8. c. 42
Atl. Rep. 766; De Graff v. New York
Ac. R. Co., 3 Thomp. ft C. (N. Y.)
255; s. c. on second appeal, 76 N. Y.
126; 19 Alb. L. J. 134; Laning v.
New York ftc. R. Co., 49 N. Y. 521;
s. c. 10 Am. Rep. 417; 2 Thomp.
Neg. (1st ed.), p. 932; Gibson v.
Erie R. Co., 63 N. Y. 449; 8. c. 20
Am. Rep. 552; rev'g s. c. 5 Hun (N.
Y.) 31; Haskin v. New York ftc. R.
Co., 65 Barb. (N. Y.) 129; s. c. aff'd
sub nom. Hasklns v. New York ftc.
R. Co., 56 N. Y. 608; Wright v. New
York ftc. R. Co., 25 N. Y. 562; rev'g
s. c. 28 Barb. (N. Y.) 80; Jones v.
Roach, 9 Jones ft Sp. (N. Y.) 248;
Ryan v. Porter Man. Co., 57 Hun
(N. Y.) 253; s. c. 32 N. Y. St Rep.
621; 10 N. Y. Supp. 774; Coyle v.
Mangan, 3 Misc. (N. Y.) 11; 8. c.
21 N. Y. Supp. 773; 50 N. Y. St. Rep.
567; Recka v. Ocean S. S. Co., 3
Misc. (N. Y.) 526; s. c. 52 N. Y. St
Rep. 417; 23 N. Y. Supp. 3; Crutch-
field v. Richmond ftc. R. Co., 78 N. C.
300; s. c. 76 N. C. 320; Fricker v.
Penn Bridge Co., 197 Pa. St 442;
8. c. 47 Atl. Rep. 354; Ortlip v. Phil-
adelphia Ac. Traction Co., 9 Pa. Dlst.
Rep. 291; Kelly v. Baltimore ftc. R.
Co. (Pa.), 11 Atl. Rep. 659 (no off.
rep.); Rooney v. Carson, 161 Pa. St.
26; s. c. 28 Atl. Rep. 996 (employe*
laid off until new mill should be

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[2d Ed.

statements and explanations. On the one hand, as already seen, 2 the
master is bound to use reasonable cate to the end of seeing that the
place wherein the servant is put to work, and that the tools, machinery
and appliances with which he is put to work, and that the fellow
servants with whom he is required to work, are reasonably safe and —
in the case of fellow servants— reasonably careful and competent. The
rule under consideration does not contradict the rule which imposes
this duty upon the master, but qualifies it. The* meaning is that if
the master fails in the performance of this duty, but if, notwith-
standing his failure, the servant, being fully advised of the dangers
of the employment, whether springing from the negligence of the
master or not, voluntarily goes into the service or continues therein,
he takes the risk of such dangers as are known to him, as are obvious
to ordinary observation or to such an inspection as he has a reasonable
opportunity to make, or such as would be discovered by the exercise of
reasonable care and attention for the promotion of his own safety.
A statement of the doctrine in this language may not be found in any
one case, but it is the result of a concurrence or consensus of nearly
all the cases. 8 The meaning also is that it is lawful for an employer

started up, and then put to work in
moving machinery and making al-
terations in the new mill, assumes
the increased risk incident to such
work); Frazler v. Pennsylvania R.
Co., 38 Pa. St 104; s. c. 80 Am.
Dec. 467; Oak Bridge Coal Co. v.
Reed, 6 W. N. C. (Pa.) 3; s. c. 6
Cent. L. J. 275; Kelley v. Silver
Spring Ac. Co., 12 R. I. 112; s. c. 34
Am. Rep. 615; 7 Rep. 60; Carlson v.
Sioux Falls Water Co., 8 S. D. 47;
s. c. 65 N. W. Rep. 419; Robinson v. ,
Houston Ac. R. Co., 46 Tex. 540;
International Ac. R. Co. v. Doyle,
49 Tex. 190; Jones v. Shaw, 16 Tex.
Civ. App. 290; s. c. 41 S. W. Rep.
690; Galveston Ac. R. Co. v. Arispe,
81 Tex. 517; s. c. 17 S. W. Rep. 47;
48 Am. k Bng. R. Cas. 350 (railway
track-hand employed on construc-
tion-train assumes risk of injury
from propelling the train from the
rear) ; Chesapeake Ac. R. Co. v. Lee,
84 Va. 642; s. c. 5 S. E. Rep. 679;
Dorsey v. Phillips Ac. Const. Co., 42
Wis. 583; Kielley v. Belcher Ac. Min.
Co., 3 Sawy. (U. S.) 500; Dillon v.
Union Pac. R. Co., 3 Dill. (U. S.)
319; Jones v. Teager, 2 Dill. (U. S.)
64; Bohn Man. Co. v. Erickson, 55
Fed. Rep. 943; s. c. 5 C. C. A. 341;
12 U. S. App. 260; Kohn v. McNulta,

VOL. 4 THOMP. NEG.— 40

147 U. S. 238; s. c. 37 L. ed. 150;
13 Sup. Ct Rep. 298; Assop v. Yates,

2 Hurl, * N. 768; Griffiths v. Gldlow,

3 Hurl, k N. 648; Skipp v. Eastern
Counties R. Co., 9 Exch. 223; s. c. 3
L. J. (Exch.) 23; Woodley v. Metro-
politan Diet R. Co., 2 Exch. Div.
384; Ogden v. Rummens, 3 Fost. k
Fin. 751. Compare Seymour v. Mad-
dox, 16 Q. B. 326; Dynen v. Leach,
26 L. J. (N. S.) (Exch.) 221; Brit-
ton y. Great Western Cotton Co., L.
R. 7 Exch. 130 (must know the dan-
ger and appreciate the risk) ;
Holmes v. Clarke, 6 Hurl, k N. 349;
s. c. aff'd, sub nom. Clarke v.
Holmes, 7 Hurl, k N. 937; s. c. in
full, 2 Thomp. Neg. (1st
p. 953; post, §§ 46 7, 4707.

*Ante t § 4608.

• Strattner v. Wilmington
Elec. Co., 3 Pen. (Del.) 245; s. c. 50
Atl. Rep. 57; Pioneer Fireproof
Const Co. v. Howell, 90 111. App.
122; s. c. aff'd, 189 111. 123; 59 N. E.
Rep. 535; Cleveland Ac. R. Co. v.
Carr, 95 111. App. 576 (risk of load-
ing rails on a moving car) ; South-
ern Ind. R. Co. v. Moore. 29 Ind.
App. 52; s. c. 63 N. E. Rep. 863;
Bryce v. Chicago Ac. R. Co., 103
Iowa 665; s. c. 72 N. W. Rep. 780;
9 Am. k Eng. R. Cas. (N. S.) 832




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

to direct the manner in which his work shall be performed, and that
he may employ men to work with dangerous implements and in un-
safe places, without incurring liability for injuries sustained by work-
men who know or ought to know the hazards of the service. 4 Stated
somewhat differently, the rule is that where the employ^ is not placed
by his employer in a position of undisclosed danger, but he is a mature
man, doing the ordinary work which he has engaged to do, and whose
risks are obvious to any one, he assumes the risk of the employment,
and no negligence can be imputed to the employer for an accident to
him therefrom. 8 Again, it is said that an employ^ does not assume
the risk of a latent hazard of which he is ignorant, and which he
would not know by the use of proper diligence or reasonable observa-
tion, but which is known to the employer; but he does assume the
risk of an extraordinary hazard so open and obvious as plainly to ap-
pear to and be observed by him without effort. 6 He assumes all the
risks ordinarily incident to the employment, but he has a right to rely
upon the master's implied promise to furnish safe machinery, and it
is not his duty to inspect the appliances furnished him ; but he takes
the risk of such secret defects as cannot be discovered by ordinary
observation and diligence, and no more. 7 It may be collected from
another decision that an employ^ who contracts for the performance

(such dangers as he knows and ap-
preciates, and also such as by the
exercise of ordinary diligence he
ought to know and appreciate;
brakeman on side-ladder of freight-
car struck by bolts on bridge pro-
jecting to within fifteen inches of
the car) ; Choctaw Ac. R. Co. v. Hol-
loway, 114 Fed. Rep. 458; s. c. 52
C. C. A. 260. Another case states
the rule to be that a servant as-
sumes the usual and obvious risks
of his employment, and also risks
consequent upon special dangers
known to him, or which he could
discover with ordinary care, but not
the negligence of his employer:
Christensen y. Lambert, 67 N. J. L.
341; s. c. 51 Atl. Rep. 702; aff'g
s. c. 66 N. J. L. 531; 49 Atl. Rep.
577; Sanderson v. Panther Lumber
Co., 50 W. Va. 42; s. c. 40 S. B. Rep.
368; 55 L. R. A. 908; Huda v. Amer-
ican Glucose Co., 154 N. T. 474;
s. c. 40 L. R. A. 411; 48 N. E. Rep.
897; aff'g s. c. 12 App. Div. (N. Y.)
624 (assumes risk of method known
to and acquiesced in by him, if not
in violation of any statute, — as,
screwing down windows adjoining
a fire-escape) ; Webb* v. Gulf Ac. R.


Co., 27 Tex. Civ. App. 75; s. c. 65
S. W. Rep. 684 (risk to experienced
man of unloading ties from moving
train, as he had often done before).

* McGorty v. Southern Ac. Teleph.
Co., 69 Conn. 635, 643; s. c. 38 Atl.
Rep. 359.

•Kohn v. McNulta, 147 U. S. 238;
s. c. 37 L. ed. 150; 13 Sup. Ct Rep.
298. But it is said that the doctrine
of obvious risks does not include
the danger resulting from inade-
quate or defective machinery and
appliances, where the defects are
known to the master and he falls to
remedy them, where the business is
not hazardous and the defects are
not obvious; since the servant may
rely upon the master's duty to fur-
nish him reasonably safe and suita-
ble appliances: Meehan v. Judson,
43 App. Div. (N. Y.) 46; s. c. 59 N.
Y. Supp. 578.

e Carlson v. Sioux Falls Water Co.,
8 S. D. 47; s. c. 65 N. W. Rep. 419.

T Jones v. Shaw, 16 Tex. Civ. App.
290, 295; s. c. 41 S. W. Rep. 690. In
many cases it is his duty to inspect
the appliances furnished him: Post,
§ 4649.

Digitized by



of hazardous duties, assumes such risks as are incident to their dis-
charge, from causes open and obvious, the dangerous character of
which causes he has an opportunity to .ascertain ; and that, if he chooses
to accept employment, or to continue in it, with knowledge of the
danger, he must abide the consequences so far as any claim against
his employer is concerned. 8 Another way of stating the doctrine is
to say that if the employ6 does not ask for further safeguards, but
conducts himself so as to assure his employer that he is content with
the machinery and appliances which have been furnished him, and
will himself assume the risk of injury from them, — he cannot put upon
his employer the risk of such injuries and recover damages from him
for that reason. 9 It has been stated that where a master employs one

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