mitting one's domestic animals to stray or trespass; permitting animals entrusted to one's keeping to stray or trespass; starting a fire under such conditions that it may spread beyond control, and do injury; manufacturing, storing, or transmitting dangerous agencies, such as gas, electricity, and high explosives; collecting and storing water in large quantities; conducting blasting operations (under certain conditions); excavating so as to remove the adjoining landowner's lateral support; keeping one's premises, to which the public is invited, in a dangerous condition; maintaining on one's land a dangerous machine, pit, or structure, which may be attractive to children of immature judgment.

In addition to the foregoing instances of acting at peril, which will be treated more at length in the following pages, it should be stated that where one is in possession of his mental faculties, of the age of discretion, and has knowledge or opportunity to form an estimate of the dangers of any act which he is about to and does perform, he is said to have acted at his peril. Such an instance of acting at peril is usually spoken of, however, as "assumption of risk, and most frequently arises in connection with employments of a more or less hazardous nature, but it may also arise in the case of one who is a trespasser upon another's premises, or even in the case of one who is a licensee or guest.

3. Same subject-Assumption of risk by employee. "The rule is now well settled that, in general, when a servant, in the execution of his master's business, receives an injury, which befalls him from

one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself."4 The rule thus stated is said to be one of general public policy, resting both upon the implied contract that the servant, when he accepts the employment, also accepts and has in contemplation the incidental hazards that he will be subjected to in the employment, and upon the fact that he and his fellow-servants have a great deal to do with increasing or diminishing the hazards of the employment, and perhaps the further reason that any other rule would be so unreasonable and ruinous in its application as to make the transaction of business by the aid of employees too onerous to undertake."

4. Same subject-What risks are incident to the business. The risks which the servant is held to assume on acceptance of employment from the master are those ordinary and usual, open and obvious risks which are connected with the employment undertaken, in the manner and form in which it is being conducted by the master. The servant cannot close his eyes to risks of the employment and afterwards complain of them, as he is held to assume all those which the exercise of ordinary care and prudence on his part would have discovered; but he is not obliged to go about scrutinizing, testing, or measuring to detect perils not obvious to the ordinary person and 4 Cooley, Torts (student's ed.), p. 635; Crown v. Orr, 140 N. Y. 450, LEADING ILLUSTRATIVE CASES.

5 Hutchinson v. Ry. Co., 5 Exch. 343 (Eng.); Priestly v. Fowler, 3 M. & W. 1 (Eng.).

Rogers v. Leyden, 127 Ind. 50; Lucey v. Hannibal Oil Co., 129 Mo. 32. See subjects, LAW OF AGENCY and LAW OF FELLOW-SERVANT AND COMPENSATION, for further discussion.

about which he is not informed. The servant also assumes and must bear the burden of perils subsequently arising, and which become known to him, and this is so whether such perils arise from defects and dangers ordinarily obvious or not. "If a servant, knowing that the master has neglected his duty and that he is thereby subject to dangers not incident to the employment, continues in the service, the increased danger becomes an incident of the service which he assumes, and, for an injury resulting therefrom, the master is not liable."8

But in some jurisdictions it is said "the law does not prescribe a rule so inflexible or unwise as that a servant must forthwith refrain from using a defective machine or appliance, or immediately quit the service of the master, upon the discovery of the defect in the machine or appliance, or that he is working by the side of a negligent fellow servant, upon the pain of conferring immunity upon the master for all liability for an injury incurred in consequence of such defect or incompetency. The true test in all such cases is, whether a person of ordinary prudence, acting with such prudence, would, under all the circumstances, have refused to incur the risk." It is

7 Johnston v. Oregon S. L. & U. N. R. Co., 23 Ore. 94; Flockhart v. Hocking Coal Co., 126 Ia. 576; Indianapolis, etc., Transit Co. v. Foreman, 162 Ind. 85; Balle v. Detroit L. Co., 73 Mich. 158.

8 Skinner v. Central Vt. R. Co., 73 Vt. 336. Carey v. Sellers, 41 La. Ann. 500. In the last case it is stated: "However gross the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises or appliances, yet where the servant knows the defects and dangers, and still knowingly and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against his master in case of injury."

Norfolk, etc., R. R. Co. v. Ampey, 93 Va. 108.

essential to the assumption of risk by the servant, not only that he should know the defect out of which the danger arises, but that he should appreciate the danger, or that the danger should be manifest to a man of ordinary intelligence and experience in the line of work in which the servant is engaged.10 Though the servant know of the defect, if he continue in the work, either because of the necessity of his position, as being on the road with an engine, or because of fear of punishment, or where the danger is not obvious and he continues by reason of the assurance of the master, or those representing him, that there is no danger in continuing to use the defective appliance, his continuance will not operate as an assumption of the risk.11

Where state or federal statutes require the adoption of new devices for the protection of the servant, which the master fails to adopt, and the employee, either ignorant of that fact or expecting daily compliance with the law, continues in the service with the old appliances, he is generally not held to assume the risk of injury therefrom.12

10 Mullin v. Cal. Horseshoe Co., 105 Cal. 77; Myhan v. Louisiana, etc., Co., 41 La. Ann. 964; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Anderson v. Clark, 155 Mass. 368. But an adult servant of ordinary intelligence is presumed able to comprehend dangers open and obvious to persons of ordinary understanding. Diesenrieter v. Kraus-Merkel Malting Co., 97 Wis. 279.

11 Olney v. Boston, etc., R. Co., 71 N. H. 427; Eldridge v. Atlas S. S. Co., 134 N. Y. 187; Consolidated Coal Co. v. Wombacker, 134 Ill. 57; McKinnon v. Riter-Conley Mfg. Co., 186 Mass. 155; McKee v. Tourtellotte, 167 Mass. 69. Where the danger is open and patent, the assurance of the master will not prevent the servant from assuming the risk of injury by continuing to use the defective appliance. Wells & French Co. v. Kapaczynski, 218 Ill. 149; Toomey v. Eureka, etc., Co., 89 Mich. 249.

12 Greenlee v. So. Ry. Co., 122 N. C. 977, 41 L. R. A. 399; Buehner Chair Co. v. Feulner, 164 Ind. 368; Narramore v. Cleveland, etc., Ry. Co., 96 Fed. 298; Monteith v. Kokomo, etc., Co., 159 Ind. 149.

5. Same subject-Assumption of risk by trespasser, licensee, or guest.-"Where mischief happens to a trespasser by reason of the defective or dangerous condition of the premises upon which he trespasses, he is very properly held to assume the risk, and no recovery can be had against the keeper of those premises. As it is commonly and somewhat more artificially put, the implied duty to prevent harm from unsafe premises does not exist in favor of a trespasser." 13

The same doctrine which is applied to trespassers, or at least one very similar thereto, is also applied in the case of injuries to licensees, guests, and under some circumstances to servants. To quote again from Professor Street: "A doctrine very similar to that which is applied in the case of trespassers, but not 13 Street, Foundations of Legal Liability (Tort), vol. I, p. 155. As instances, Professor Street cites the following cases:

́(1) Sullivan v. Boston, etc., R. Co., 156 Mass. 378: The plaintiff's intestate climbed upon the defendant's building to recover a ball with which he had been playing and which had lodged there. While so upon the building he came into contact with a live wire used to conduct electricity from the defendant's works to an adjoining building, and was killed. It was held that no action lay.

"(2) Reardon v. Thompson, 149 Mass. 267: The defendant dug a hole partly on his own premises and partly on the premises of a third person who consented to the digging. The plaintiff came along at night and fell in. The hole was not near enough to the regular path to constitute a nuisance or menace to those who were entitled to use the path. It was held that an action could not be maintained.

"(3) Lary v. Cleveland, etc., R. Co., 78 Ind. 323: The plaintiff, without invitation and as a mere intruder, entered upon the unenclosed premises of the defendant, upon which was a building of the defendant in a state of visible decay. While there, a sudden storm blew a fragment of the dilapidated building against the plaintiff, injuring him severely. The building had once been used as a freight house, but had been long since abandoned as a place of public business, and was not so situated with reference to any public way as to endanger travelers thereon. It was held, in an action for damages for injuries received, that the plaintiff could not recover.''

See also Ryan v. Towar, 128 Mich. 463, LEADING ILLUSTRAtive Cases.