Coal Co. v. Davidson, (Ala.), 55 So. 886 (1911), that a workman employed in a mine does not assume the risk of the operator's failure to comply with the provisions of Ala. Code, 1907, sec. 1016, which requires the maintenance of ample means of ventilation in mines for the circulation of air through all working places, so as to render harmless noxious gases generated therein.

But, the benefits of the Alabama Employer's Liability Act (Ala. Code 1907, sect. 3910, subdiv. 1), authorizing a recovery for an injury to a servant caused by any defect in the ways, works, machinery or plant, are not available to a servant who has been intrusted with the duty of seeing that a cotton gin is in proper condition, since in such a case he assumes the risk of injury incident to the operation of the gin when in a defective condition. Maddox v. Chilton Warehouse & Mfg. Co., 171 Ala. 216, 55 So. 93 (1911). In this case it was a part of the servant's duty to remedy the defect.

243, 19 L. R. A. (N. S.) 646 (1908).

District of Columbia. In Philadelphia, B. & W. R. Co. v. Tucker, 35 App. D. C. 123 (1910), the provision of a statute that "no contract of employment shall constitute any bar or defense," was held to abrogate the defense of assumed risk, on the theory that the doctrine of assumed risk results from the contractual relation between master and servant.

Georgia. Under the Act of Congress prescribing the liability of carriers by railroad for injuries to their employees, a servant may assume the risk of injury as in other employments, except as to such acts as are violative of statutes enacted for the securing of the servant's safety. Bowers v. Southern R. Co., 10 Ga. App. 367 (1912).

Indiana. In Island Coal Co. V. Swaggerty, 159 Ind. 664, 13 Am. Neg. Rep. 267 (1902), the court held a mine owner liable to a workman who was injured because of the former's failure to provide the statutory signals for raising and lowering an elevator in a mine. "The doctrine of assumption of risk," said the court, "does not apply to a case where the injury occurs by reason of the negligent nonobservance of a positive fixed duty enjoined by a statute."

One employed as a driver in a coal mine did not assume the risk of injury by falling slate, from the failure of the mine boss to see that all loose slate, coal and rock overhead in mines

where employees have to travel to and from work shall be taken down or carefully secured, as required by sect. 8580, Burns 1908. It was contended by counsel that the doctrine of assumed risk was applicable, since the statute enjoins no specific act upon the mine boss, but leaves him free to exercise his judgment as to whether the loose coal should be taken down or secured. "We do not concur in this view," said the court, "the statute is explicit and mandatory. Take down or secure, and the alternative expression, does not create any uncertainty." Princeton Coal Min. Co. v. Howell, 46 Ind. App. 572 (1910). A similar decision was rendered in Antioch Coal Co. v. Rocky, 169 Ind. 247 (1907).

It will be noticed that some of the leading cases emphasize a distinction between statutory regulations which are stated in general terms and which are little more than re-enactments of the common-law rule, and those which prescribe specific means or methods for the protection of servants, and declare that assumption of risk is no defense to a violation of the latter statutes, but is available as a defense to the former. Monteith v. Kokomo Wood Enameling Co., 159 Ind. 149, 12 Am. Neg. Rep. 381, 58 L. R. A. 944 (1902); Whiteley Malleable Castings Co. V. Wishon, 42 Ind. App. 288 (1908); Cleveland, C. C. & St. L. R. Co. v. Bossert, 44 Ind. App. 245 (1909).

In American Rolling Mill Co. v. Hul

linger, 161 Ind. 673 (1903), the court said: "The rule concerning assumed risk is different in cases arising under the Employers' Liability Act, where definite duties are not prescribed, than what it is where a statute points out definitely what the master must do under certain cases to guard the safety of the employee."

The same distinction was noted in Cleveland, C. C. & St. L. R. Co. v. Powers, 173 Ind. 105 (1909), in which the court said that "we have a distinct line of cases in this State, as applied to master and servant, holding that, where a statutory duty is dis regarded by the master, it is not necessary that the complaint allege that the servant was ignorant of the master's failure to comply with such statute, nor allege facts showing that he did not assume the risk." In this case the court held that, in an action by a servant to recover damages for injuries caused by being struck by a rapidly moving passenger train while he was on his way through the mas ter's railroad yards to report for duty as required by the rules of the mas ter, it was not necessary for the serv ant to negative in the complaint his knowledge of the master's violation of a city ordinance in the operation of its train, or to allege facts showing that the servant did not assume the risk of injury.

Iowa. The plea of assumption of risk will not be available to a master

where the negligent act charged was a violation of an express and specific statutory regulation. Thus, in Poli v. Numa Block Coal Co., 149 Iowa, 104 (1910), it was held that a miner's use of a cage which was provided with a cover too small to protect those using the same from falling lumps of coal, is no defense to the master who has failed to comply with Iowa Code, sec. 2489, which requires those who operate mines to provide "proper covers overhead on all cages." It was contended in this case that plaintiff should be held as matter of law to have assumed the risk because the danger therefrom was obvious and that he was familiar with the conditions, and Sutton v. Des Moines Bakery Co., 135 Iowa, 390 (1907), was cited to support the claim. Speaking in this connection, the court in the Poli case said: "It is to be conceded that in the opinion referred to (Sutton Case) an expression is used to the effect that, if there was a breach of statutory duty by the employer with reference to a safety device, plaintiff was nevertheless not absolved from the consequences of his voluntary assumption of the risk. The case was one in which the plaintiff's contrib utory negligence was so obvious that the court was united in the opinion that the order of the district court in directing a verdict for defendant should be affirmed. In disposing of the appeal, the opinion went somewhat beyond the last ground here men

tioned, and made use of the language on which appellant now relies, without any general discussion of the question as to the effect of statutory regulation upon the application of the rule of assumption of risk. * * * Statutory reg. ulation of the manner in which any particular line of business shall be carried on is an exercise of the police power of the State, and is intended in some instances as an instrument of protection to the public generally, and in others as a protection to certain classes of employees exposed to certain hazards. To say that the Legislature in enacting these measures of protection, which in some degree equalize the advantages of employer and employee and afford a needed protection to the persons and lives of the latter, intended that a master might violate the statute to the injury or death of his servant, and then escape liability by pleading and proving that his offense against the law was habitual, obstinate and notorious, is inconsistent with justice, and it is hardly extravagant to say, repugnant to good morals. Such a rule offers a premium to contemptuous disregard of the statute, and robs it substantially of all value to the class in whose interest it was enacted." This quotation from the opinion in the Poli case, it will be noticed, either overrules or explains away the doctrine announced in the Sutton Case.

"We have already held," said the

court in Stephenson v. Brick & Tile Co., 151 Iowa, 371 (1911), "that an employee does not assume the risks incident to the use of a machine which is not guarded as required by statute, although he knows of the unguarded condition and apprehends the danger incident to the use thereof," (citing Poli v. Numa Block Coal Co., supra). It is also true, however, that an employee working about an unguarded machine may be guilty of contributory negligence," [citing Tyrrell v. Cain (Iowa, 1910), 128 N. W. 536].

In Verlin v. United States Gypsum Co., (Iowa), 135 N. W. 402 (1912), it was held that a servant whose hand was injured by being caught in the cogwheels of a machine while he was attempting to oil the same, because the wheels had negligently been left unguarded, in violation of statute, did not assume the risk of injury, since it was no part of his duty to remedy the defect. The court said that "the statute exacting proper guards for specified pieces of machinery, including cogwheels, was enacted for the protection of employees exposed to danger therefrom, and to recognize assumption of risk as a defense in such cases where it was not the employee's duty to remedy the defect would defeat the purpose of the law," citing Poli v. Numa Block Coal Co., 149 Iowa, 104 (1910), and Stephenson v. Sheffield Brick Co., 151 Iowa, 371 (1911).

Kansas. The question as to whether

the plea of assumed risk is available in an action based on a master's violation of a statute, was not decided in Madison v. Clippinger, 74 Kan. 700, 88 Pac. 260 (1906). The matter was however, definitely settled in Western Furniture & Mfg. Co. v. Bloom, 76 Kan. 127, 90 Pac. 821, 11 L. R. A. (N. S.) 225, 123 Am. St. Rep. 123 (1905), in which it was held that "in an action brought by an employee against his employer to recover damages for injuries received on account of the failure of the latter to comply with the provisions of "the Factory Act" (Laws 1903, chap. 356, p. 540), requiring manufacturers to safely guard their machinery for the purpose of protecting their employees, assumption of risk is not a defense." See, also, Kansas Buff Brick & Mfg. Co. v. Stark, 77 Kan. 648, 95 Pac. 1047 (1908).

"The prime object of the statute" (requiring guarding of salt pans), said the court in Lewis v. Barton Salt Co., 82 Kan. 163, 107 Pac. 783 (1910), "is to deter employers from unnecessarily exposing their employees to danger, even when the danger is apparent and where employment is accepted or is continued under such circumstances that the common law imputes knowledge of the danger to the employee and consequently an assumption of risk." In this case it appeared that an employee fell into an unguarded pan in a soap factory when working

at night in a poorly lighted room.

Kentucky. There is no assumption of risk by a miner of a coal operator's failure to comply with a statute (Russell's Ky. Stat., sec. 2489a), requiring props to be furnished in suffi cient numbers to secure the roof of the place in which miners are compelled to work. Speaking with reference to contributory negligence and assump. tion of risk, the court said: "We think the safe rule is to hold that, unless the danger from lack of props is not only imminent, but so obvious that an or dinarily careful man would not have worked under the conditions, the own. er has the responsibility He having failed in his statutory duty, the liability for all consequences is upon him, unless the miner could see, or know, by ordinary care, that the situation was dangerous and imminently So. In other words, there is no assumption of risk by the laborer where the master neglects a statutory duty; but such laborer is still liable for his contrib utory negligence. The two proposi tions are not identical To constitute contributory negligence, there must be some act or failure on the part of the laborer, in addition to the ordinary risks imposed by the character of his work under the conditions created by the master's conduct which would amount to culpable negligence on the laborer's part; such, for example, as a failure to look, to observe, to test in some way, the safety of the roof in

this instance, or, if it had been unsafe, and obviously so, and the danger thereby imminent, his continuing to work under those conditions." Low v. Clear Creek Coal Co., 140 Ky. 754 (1910).

Louisiana. In Louisiana it has been held that the failure of a railroad company to erect "telltales" or warning signals at a distance of about 150 feet from the approaches to an overhead bridge, in accordance with the requirements of Act of 1882, No. 39, p. 51, to warn employees riding on the top of freight cars, does not create a risk which a brakeman assumed, although he stated in his application for employment, that he understood that it was necessary for the railroad company to have overhead bridges at certain points on its line, and that he was aware of his exposure to injuries by being knocked off the side or top of cars, unless he used care to avoid injury, and he agreed to acquaint himself with all overhead bridges. Hailey v. Texas & P. R. Co., 113 La. 533 (1904).

But in a New York case it was held that a brakeman upon a railroad, who was aware of the fact that no warning signals had been placed upon a bridge, which crossed over the tracks, and that the bridge was so low as to be dangerous to trainmen riding on the tops of cars, assumes the risk of the lack of such warnings, although a statute requires them. Fitzgerald, v. New York Cent. & H. R. R. Co., 59 Hun. (N. Y.)