I. & P. R. Co., 118 Iowa, 148, 91 N. W. 1034, 59 L. R. A. 698, 96 Am. St. Rep. 371, 20 Am. Neg. Rep. 677; but it has since been followed in Stephenson v. Sheffield Brick & Tile Co., 151 Iowa, 371, 130 N. W. 586, and is to be regarded now as the doctrine of that court. Most of the cases holding that there is no assumption by a servant of the risk of violation by the master of a statutory duty imposed for the protection of the servant cite and rely upon the case of Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, decided by the United States Circuit Court of Appeals Co., 47 Wash. 492, 92 Pac. 274 (1907); Dukette v. Northwestern Woodenware Co., 61 Wash. 95, 111 Pac. 1065 (1910); Anderson v. Pacific Nat. Lumber Co., 60) Wash. 415, 111 Pac. 337 (1910); Gustafson v. A. J. West Lumber Co., 51 Wash. 25, 97 Pac. 1094 (1908). -Failure to provide emery wheel with an exhaust fan to carry off dust; servant's eye injured by dust lodging therein. Indianapolis Foundry Co. Lackey, (Ind. App.), 97 N. E. 349 (1912). v. -Failure to guard an emery belt used in a factory to polish metal; workman injured by a particle of metal thrown from belt. La Porte Carriage Co. v. Sullender, (Ind. App.), 71 N. E. 922 (1904) -Failure to guard a device used for crushing old car wheels; servant in jured by piece of wheel flying over casing. Green V. American Car & Foundry Co., 163 Ind. 135 (1904). -Failure to guard vats of boiling water in a veneer factory; servant injured by falling therein due to slipping of a defective log hook. Chamberlain v. Waymire, 32 Ind. App. 442 (1903). -Operation of train backward by night without lights on rear end, as required by a city ordinance, in consequence of which a switchman killed. Chicago & E. R. Co. v. Lawrence, 169 Ind. 319 (1907). was -Failure to guard an elevator shaft; employee injured by falling therein while moving a truck onto the elevator. Murphy V. Grand Rapids Veneer Works, 142 Mich. 677 (1906). -Failure to equip cars with automatic couplers; employee injured by being compelled to go between cars. Patten v. Faithorn, 152 Ill. App. 426 (1910); McGarvey v. Detroit, T. & I. R. Co., 83 Ohio St. 273 (1911). -Failure to use proper couplers for cars on logging train; experienced brakeman injured while trying to make coupling. Betterly v. Boyne City, G. & A. R. Co., 158 Mich. 385 (1909). -Failure to equip electric cars with electric or air brakes, in consequence of which a motorman was killed in a collision between his car and a train at a crossing. Rivers v. Bay City Traction & El. Co., 164 Mich. 696 (1910). -Failure to provide a cage in a mine with an iron cover; workman injured by fall of coal from car down shaft. Durant v. Lexington Coal Min. Co., 97 Mo 62, 16 Am. Neg. Cas. 397 (1888). -Failure to guard cog wheels of planer in a box factory; servant, seventeen years of age, injured by losing his balance and falling into cogs while assisting one of the company for whom he worked in pulling wet board away from planer. Bair v. Heibel, 103 Mo. App. 621 (1903). -Failure to guard shafting in consequence of which an employee was caught and killed. Collins v. Star Pa for the Sixth Circuit on July 5, 1899. The case was an action for personal injuries to a switchman in the defendant's railroad yards occasioned by his getting his foot caught in a guard rail which the defendant had not blocked, in violation of a statute of Ohio which required the blocking of guard rails so as to prevent the feet of employees from being caught in them, and prescribed a penalty for the violation of the Act. The trial court directed a verdict for the defendant on the ground that, the defendant's failure to block its switches and rails being obvious, the plaintiff must be held to have assumed the risk notwith per Mill Co., 143 Mo. App. 333 (1910). -Failure to equip cars with selfcouplers; laborer in railroad yards injured while attempting to make coupling. Greenlee v. Southern R. Co., 122 N. C. 977, 41 L. R. A. 399, 65 Am. St. Rep. 734 (1898). -Failure to guard side-edger saw; injury to servant by contact. Hill v. Saugested, 53 Ore. 178, 98 Pac. 524, 22 L. R. A. (N. S.) 634 (1909). -Failure to guard a set-screw in shafting; clothing of servant caught on set-screw, causing injury, while he occupied dangerous position in performance of his duties. Hall v. West & Slade Mill Co., 39 Wash. 447, 81 Pac. 915 (1905). -Failure to provide belt shifters; employee injured while assisting in removing belt. Whelan v. Washington Lumber Co., 41 Wash. 153, 19 Am. Neg. Rep. 587, 83 Pac. 98 (1905). -Failure to guard shafting used in running grindstones, and coupling connecting lines of shafting; employee injured by stumbling against shafting while engaged in sharpening large chisel. Hoveland v. Hall Bros. Marine R. & Ship Building Co., 41 Wash. 164, 82 Pac. 1090 (1905). -Failure to guard power shaft extending a short distance from the floor under a long sewing machine table and used to operate many machines; operator's hair caught in shaft when she knelt down to search for fallen shuttle. Balzer v. Warring, (Ind.), 95 N. E. 257 (1911). -Failure to surround vats containing hot liquids with proper safeguards, in consequence of which an employee was injured by falling into an unguarded opening caused by raising of a trap door in the top of one of such vats. Lind v. Uniform Stave & Package Co., 140 Wis. 183 (1909). B. Special Statutory Provisions. Some statutes contain provisions expressly abolishing the defense of assumption of risk. Thus, in the case of Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 487 (1903), which was an action to recover damages sustained by a brakeman on a railroad based on a violation of a Federal statute requiring the use of automatic couplers, it was held that the defense of assumed risk had been abolished by the statute. An Illinois statute (Laws 1905), making it unlawful for a carrier engaged in moving traffic between points within the State, to haul any car not equipped with automatic couplers which shall work for the purposes intended, imposes an absolute duty upon the carrier to provide such appliances, and to keep them in repair. The statute further expressly provides that "any employee of such common carrier who may be injured by any train, locomotive, tender car or similar vehicle in use contrary to the provisions of this Act, shall not be deemed to have assumed the risk thereby occasioned, nor to standing the statute. The judgment was reversed, and in the opinion it is said that "assumption of risk is a term of the contract of employment, express or implied, from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk." Proceeding upon the theory that the doctrine of the assumption of risk rests really upon contract, the court holds that a contract to waive the performance of a duty imposed by statute and enforceable by a criminal prosecution will not be recognized by a court, but is void. have been guilty of contributory negligence, because of continuing in the employment of such common carrier." In an action by a switchman who was injured while attempting to open, by hand, an automatic coupler which would not work by impact, the railroad company cannot, under the provisions of the statute, set up assumption of risk as a defense. Luken V. Lake Shore & M. S. R. Co., 248 Ill. 377 (1911). And in Patten v. Faithorn, 152 Ill. App. 428 (1910), it was held that in an action based upon the failure of a master to use automatic couplers as required by statute, the doctrine of assumed risk does not apply. A similar decision was rendered in Johnson v. Great Northern R. Co., 178 Fed. 643, 102 C. C. A. 89 (1910), which was an action based on the Federal Safety Appliance Act (U. S. Comp. Stat. 1901, p. 3174), providing that "any employee of any such common carrier, who may be injured by any locomotive car or train in use contrary to the provisions of this act, shall not be deemed thereby to have assumed the risk occasioned thereby, although continuing in the employment of such carrier after the unlawful use of such locomotive car had been brought to his knowledge." The same rule attains in Ohio based on a statute similar to the Federal law. McGarvey v. Detroit, T. & I. R. Co., 83 Ohio St. 273 (1911). And under a provision of the Code of Iowa which states that "any railroad employee who may be injured by the running of such an engine (without safety appliances) contrary to the provisions of said sections shall not be considered as waiving his right to recover damages by continuing in the employment of the company," it was held in Bryce v. Burlington, C. R. & N. R. Co., 119 Iowa, 274 (1903), that if the statute requiring automatic couplers applied to switch engines which were not so equipped, and in consequence thereof an employee was injured, "the question of the assumption of risk would be eliminated from the case." The court held, however, that the statute was inapplicable to such engines. In North Carolina it has been held that the doctrine of assumption of risk has been abolished by the Act of Feb. 23, 1897, which makes railroad companies liable for injuries caused by defects in machinery, ways, or appliances, and expressly declares that any contract waiving the benefit of the statute is null and void. Coley North Carolina R. Co., 128 N. C. 534 (1901); 129 N. C. 407, 57 L. R. A. 817 (1901); Cogdell v. Southern R. Co., 129 N. C. 398 (1901); Thomas v. Raleigh & A. Air-Line R. Co., 129 N. C. 392 (1901); Mott v. Southern R. Co., 131 N. C. 234 (1902). v. In Baynes v. Billings, 30 R. I. 53, 21 Am. Neg. Rep. 239 (1909), it was held that the plea of assumption of risk The case of Knisley v. Pratt, supra, [148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367], decided by the Court of Appeals of the State of New York in 1896, is cited in a number of the cases which sustained the defense of assumption of risk where the act complained of is the violation of a statutory duty, and the reasoning is substantially the same in all such cases. The New York statute (Laws 1890, c. 398, § 12) required all cogwheels to be covered in factories where women were employed, and the plaintiff, who was a woman engaged in cleaning machinery while it was in motion, was injured by being caught in the was not available as a defense to an action to recover damages for injuries to a boy who had been requested by the elevator boy to go to the top of the elevator to put in place a screen which was intended to prevent objects from falling into the elevator, but, on account of being misplaced, had itself become a source of danger, and who, while so engaged was caught and injured when the elevator was started, in consequence of the defendant's failure to furnish certain mechanical device designed to prevent the starting of an elevator car while the doors of the shaft are open, as required by a statute, which expressly states that it shall be no defense to the action that the person injured had knowledge that the elevator was being operated contrary to the requirements of statute. But see Langlois v. Dunn Worsted Mills, 25 R. I. 645, 16 Am. Neg. Rep. 161 (1904), supra. The Constitution of South Carolina, Art. 9, sec. 15, provides that "knowl. edge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances, shall be no defense to an action for injury caused thereby, except as to the conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them." It is, therefore, the law of this State that a servant cannot assume the risk of injury. Youngblood v. South Carolina & G. R. Co., 60 S. C. 9, 85 Am. St. Rep. 824 (1900); Bodie v. Charleston & W. C. R. Co., 61 S. C. 468, 10 Am. Neg. Rep. 478 (1901); Carson v. Southern R. Co., 68 S. C. 55, 16 Am. Neg. Rep. 158 (1903). Likewise, in Virginia, the Constitution, sec. 162, provides that "knowl edge by any railroad employee injured of the defective or unsafe condition or character of any machinery, ways, appliances or structure shall be no defense to an action for injury caused thereby." This provision has been construed as abrogating the former rule which forbade recovery by an employee who knowingly used defective machinery. Norfolk & W. R. Co. v. Cheatwood's Adm'x, 103 Va. 356 (1905). IV. Violation of Ordinances. In Illinois a distinction has been made between the effect of the violation of municipal ordinances requiring the guarding of dangerous situations, but which do not impose any civil liability in case of disobedience, and statutes which create such liability. Cases on this subject hold that such ordinances do not preclude an assumption of the risk of their violations. Chicago Packing & Prov. Co. v. Rohan, 47 Ill. App. 640 (1893); Munn v. L Wolff Mfg., 94 Ill. App. 122 (1900); Browne v. Siegel, Cooper & Co., 191 Ill. 226 (1901). In Munn v. L. Wolff Mfg. Co., supra, the court held that one who was unprotected cogwheels and in consequence lost her arm, though a compliance with the statute, which was entirely practicable without impairing the efficiency of the machinery, would have been a complete protection to her. The court differentiates ordinary risks and obvious risks, holding that the rule of the assumption of risk in the two cases. is entirely distinct. Doubt is expressed as to whether the assumption of obvious risks can be said to rest wholly upon the implied agreement of the employee, and the language used by the Supreme Judicial Court of Massachusetts in the case of O'Maley v. South Boston Gas employed at an emery wheel, which was not protected as required by an ordinance providing that "in every factory, workshop or other place or structure where machinery is employed, the belting, shafting, gearing, elevators and every other thing, when so located as to endanger the lives and limbs of those employed therein while in the discharge of their duties, shall be, as far as practicable, so covered or guarded as to insure against any injury to such employees," cannot recover for injuries sustained by reason of the want of such an appliance, where he exposed himself to the danger and continued his work with full knowledge of the danger. Violations of ordinances in Indiana, contrary to the ruling in Illinois, as to the operation of trains are given the same effect as violations of statutes with reference to the question of assumption of risk. Pittsburgh, C. C. & St. L. R. Co. v. Moore, 152 Ind. 345, 7 Am. Neg. Rep. 100, 44 L. R. A. 638 (1898); Baltimore & O. S. W. R. Co. v. Peterson, 156 Ind. 364 (1901). V. Attempt to Comply With Statute. It has been held that the "Factory Act" (Wash.) of 1903, which requires employers to provide proper guards for cogs, saws and dangerous machinery, does not deprive a master of the right to interpose the defense of assumption of risk, where he had made a bona fide effort and had exercised due care to provide a guard for an edger, which an experienced employee had used for three years without objection, and where the employee was injured by an accident which could not have been reasonably anticipated. The court said that where a master has made an intelligent, careful, judicious, and honest effort to comply with the requirements of the Factory Act, and an experienced and skillful servant has ample opportunity for seeing, knowing and learning whether the guard provided is proper, and with such opportunities continues his work, he will be held to have assumed the risk of his employment, including the sufficiency of such guard; to hold otherwise, the court continued, would be to announce not only the doctrine that the master must provide the servant with a reasonably safe place to work, but also that he must under af circumstances be an insurer of the life and safety of his servant. Johnson v. Northern Lumber Co., 42 Wash, 230, 84 Pac. 627 (1906). And in Daffron v. Majestic Laundry Co., 41 Wash. 65, 82 Pac. 1089 (1905), it appeared that the master made a bona fide effort to provide a proper guard for a mangle used in a laundry, but on account of the improper character of the guard adopted the hand of the servant in charge of the machine, who was an experienced operator, became tangled in apron strings and was forcibly drawn over the top of the guard. The statute prescribed no particular kind of guard nor was there |