enters his employ knowing the method in which the business is conducted assumes the risk of such method.

The doctrine of assumption of risk in this class of cases is of modern origin. Its application to the law of master and servant was first suggested by Lord Abinger in Priestley v. Fowler, 3 Mees. & W. 1, 15 Am. Neg. Cas. 410n. [Exch. 1837], and was first declared in this country in Farwell v. Boston & Worcester R. Corp., 4 Metc. (Mass.) 49, 15 Am. Neg. Cas. 407, 38 Am. Dec. 389, in 1842. The opinion in that case, written by Chief Justice Shaw, places the doctrine squarely on the basis of contract, and its reasoning has been universally adopted by the courts of this country. Speaking of the exemption of the master from liability to his servant for an injury through the negligence of a servant of the same master engaged in a different department of duty, it is said: "The master is not excused from liability, in such case, because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself, and he is not liable in tort as for the negligence of his servant because the person suffering does not stand

this ruling as not, however unconsciously, introducing the notion that to some extent the man had taken the risk of the danger by being in the place at all. But whatever may have been the meaning of the local courts, we are of opinion that the possibility of such a minute miscalculation, under such circumstances, whatever it may be called, was so inevitably and clearly attached to the risk which Schlemmer did not assume, that to enforce the statute requires that the judgment should be reversed." Four justices dissented from the opinion and judgment of the Federal court.

The matter of assumption of risk has been held to be immaterial in a case arising under the Federal Safety Appliance Act, as a provision of that law expressly declares that in any action based on a violation of the Act, the employee injured shall not be held to have assumed the risk of injury from violations. Johnson V. Great

Northern R. Co., 178 Fed. 643 (1910).

In Inland Steel Co. v. Kachwinski, 151 Fed. 219 (1907), the Federal court followed the Indiana rule that a master, against whom an action is brought to recover for injuries caused by being hit by a piece of scrap iron, due to the master's failure to guard a place where scrap iron and steel were broken into smaller bits by allowing a large steel ball to fall upon the scrap, cannot set up the defense of assumption of risk.

An Oregon statute (Laws 1907, p. 302), which requires every owner of a factory, mill, or workshop to provide reasonable safeguards for all machinery which it is practicable to guard, under penalty for failure to comply with its provisions, and which gives a right of action to an employee whose injury is the proximate result of the master's noncompliance with its provisions, was held in Welsh v. Barber Asphalt Pav. Co., 167 Fed. 465 (1909), to preclude the defense of assumption of

in the relation of a stranger, but is one whose rights are regulated by contract, express or implied." The mutual rights and liabilities of master and servant were universally determined upon that basis for half a century without question, until legislation of the character of that now in question, which is of more recent origin than that of the assumption of risk, began to be adopted in various States. Then the theory began to be asserted that the doctrine had its origin, not in a contract, but in the maxim volenti non fit injuria, and that the maxim applied equally whether the risk assented to arose from mere neglect or the violation of a statutory duty. Whatever the origin of the doctrine, in the end it is the servant's agreement that creates the assumption of risk. The servant must be volens (that is, willing, consenting, agreeing), and to apply the maxim amounts to nothing other than to say the law regards the servant as consenting to existing conditions by continuing his service with knowledge of the conditions (that is, that he agrees to them and assumes them as a part of his contract). It has been doubted whether the maxim has any application where there has been a breach, by a defendant of a statutory obligation. Baddeley v. Granville, L. R. 19 Q. B Div. 425; Yarmouth v. France, L. R. 19 Q. B. Div. 647; Wilson v Merry, 19 L.. T. (N S.) 30, L R. 1 II. L. Se. 326, 16 Am. Neg. Cas. 756n.

risk. The court said that the question involved was one as to which the Federal courts are bound by the decisions of the highest court of the State, and in absence of a holding by the Supreme Court of Oregon on the point, the decisions of the highest court of Washington, from which State the Oregon statute was borrowed, would be followed.

In a case arising in a Federal court in the State of Washington, it was held that the defense of assumption of risk was precluded by the Act of Conress of June 11th, 1906, known as the "Employer's Liability Act?' which provides that no contract of employment, entered into by or on behalf of any employee, shall constitute any bar or defense to any ac tion brought to recover damages for personal injuries to or death of such employee." Malloy v. Northern Pac.

*

*

R. Co., 151 Fed. 1019 (1907). The plaintiff in this case was injured while operating an unguarded saw in the workshop of a railroad company which conducted an interstate business.

Under the Washington Code, secs. 6587, 6594, which requires the operators of mills and factories to provide reasonable safeguards for machinery and vats, whenever practicable, and which make such operators liable for injuries to employees resulting from noncompliance with its provisions, it was held in Carstens Packing Co. v. Swinney, 186 Fed. 50, 108 C. C. A. 152 (1911), that a servant did not assume the risk of injury from falling into a vat of hot glue, left uncovered contrary to the provisions of statute, caused by the slipping of a plank carrying him into a vat, while he was attempting to oil the bearings of a shaft in the performance of his duties. In

The passage of a law like that now under consideration implies that the class of employees for whose protection it was intended had not been able to protect themselves without it. Its object, as indicated by the title of the Act, is to provide for the health, safety, and comfort of employees in factories, mercantile establishments, mills, and workshops in this State, and the authority for it is found in the police power of the State. The effect of it is to create a new situation in the relation of master and servant, and to present the new question whether the doctrine of assumption of risk heretofore applied to that relation should apply in the same way to the new conditions. The duty of the master has been changed. He may no longer conduct his business in his own way. He may no longer use such machinery and appliances as he chooses. The measure of his duty is no longer reasonable care to furnish a safe place and safe machinery and tools, but in addition to such reasonable care he must use in his business the means and methods required by the statute. The law does not leave to his judgment the reasonableness of inclosing or protecting dangerous machinery, or permit him to expose to increased and unlawful dangers such of his employees as may be driven by force of circumstances to continue in his employ rather than leave it and take chances on securing employment elsewhere under lawful conditions. The guarding of the machinery mentioned in the statute is a duty required of the master for the protection of his workmen, and he owes the specific duty to each person in his employ. To omit it is a misde

its opinion the court cited numerous decisions rendered by the Supreme Court of Washington.

An employee is not relieved from assumption of risk in working around unguarded machinery, nor from his own want of ordinary care which may directly contribute to produce an injury, by the enactment of Minn. Rev. Laws, 1905, sec. 1813, which declares that all saws and other dangerous appliances in any factory, mill or workshop shall be so located as not to be dangerous to workmen, and every dangerous place in and about mills, near to which any employee is obliged to pass or to be employed, shall be securely fenced or otherwise protected. In this case it appeared that the plaintiff was familiar with the machinery

he had been directed to repair, and instead of stopping the machinery before attempting to remedy the trouble, as he was authorized to do, he opened the housing at night, and thrust his hand into a known place of danger next to the saw in an attempt to discover the cause of the trouble and to repair it while the machinery was in motion, in consequence of which his arm was severed by the saw. "There were two ways," said the court, "in which he could have replaced the chain upon the sprocket wheels, one of which was absolutely safe and known by him to be so, the other extremely dangerous and so known to him to be. He voluntarily chose the latter way when there was no occasion or necessity for so doing, and in doing

meanor subjecting him to a criminal prosecution. The necessity for such legislation is suggested by a consideration of a sentence from the opinion in the Knisley Case [Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367], which says: "There is no rule of public policy which prevents an employee from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks." Notwithstanding the theoretical liberty of every person to contract for his labor or services and his legal right to abandon his employment if the conditions of service are not satisfactory, practically, by stress of circumstances, poverty, the dependence of his family, scarcity of employment, competition, or other conditions, the laborer frequently has no choice but to accept employment upon such terms and under such conditions as are offered. Under such circumstances, experience had shown, before the passage of the statute, that many employers would not exercise a proper degree of care for the safety of their workmen. The servant had to assume the risk of injury, and the master took the chance of a suit for damages. It was to meet this precise situation and protect employees in such situation that this legislation was adopted. It imposes upon the master an absolute, specific duty-one which he cannot delegate and against his neglect of which he ought not to be allowed to contract. If the employee must assume the risk of the employer's violation of the statute, the Act is a delusion so far as the protection

so received the injury of which he complains. He cannot, therefore, hold the defendant responsible for an injury which thus directly resulted from his own voluntary and unnecessary choice of the more dangerous of the two ways of doing the work he attempted to do." Erdman v. Deer River Lumber Co., 182 Fed. 42, 104 C. C. A. 482 (1910).

The statute of Wyoming (Laws 1899, secs. 2573, 2582) requiring the fencing of machinery at and about a mine, and providing that a cause of action shall accrue to a servant who is injured by the wilful failure of the master to comply with the law, was construed in Maki v. Union Pac. Coal Co., 187 Fed. 389, 109 C. C. A. 221 (1911), as not abolishing the defense of assumption of risk, but the court

held that it is still available to the defendant in such an action. While recognizing that there are authorities which hold a different doctrine, the court regarded the better rule and weight of authority as in favor of the availability of assumed risk as a defense. In reaching this decision the court relied upon St. Louis Cordage Co. v. Miller, 126 Fed. 495, 15 Am. Neg. Rep. 476, 61 C. C. A. 477, 63 L. R. A. 551 (1903), and Denver & Rio Grande R. Co. v. Norgate. 141 Fed. 247, 20 Am. Neg. Rep. 65, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981 (1905).

VII. English Decisions.

The English decisions relating to a servant's knowledge of the master's

of the former is concerned. He is in the same condition as before it was passed. He is compelled to accept the employment; he must assume the risk; when he is killed or crippled, he and those dependent on him have no remedy, and the law is satisfied by the payment of a fine. The more completely the master has neglected the duty imposed upon him by statute for the servant's protection, the more complete is his defense for the injury caused by that neglect. Justice requires that the master, and not the servant, should assume the risk of the master's violation of the law enacted for the servant's protection, and in our opinion this view is in accordance with sound principles of law.

For many years we have held, in the construction of the Mining Act, that neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by a willful violation of the provisions of that Act. Bartlett Coal & Mining Co. v. Roach, 68 Ill. 174, 14 Am. Neg. Cas. 308n; Litchfield Coal Co. v. Taylor, 81 Ill. 590, 14 Am. Neg. Cas. 309n; Catlett v. Young, 143 Ill. 74, 14 Am. Neg. Cas. 307, 32 N. E. 447; Carterville Coal Co. v. Abbott, 181 Ill. 495, 7 Am. Neg. Rep. 40, 55 N. E. 131; Western Anthracite Coal & Coke Co. v. Beaver, 192 Ill. 333, 61 N. E. 335; Spring Valley Coal Co. v. Patting, 210 Ill. 342, 20 Am. Neg. Rep. 57, 71 N. E. 371; Kellyville Coal Co. v. Strine, 217 Ill. 516, 75 N. E. 375, 20 Am. Neg. Rep. 62; Waschow v. Kelly Coal Co.. 245 Ill. 516, 92 N. E. 303. It is true that these decisions were based partly on the language of the section which gives an action for an injury occasioned by a "willful" violation of the Act and partly on the requirement contained in section 29 of article 4 of the Constitution that the General Assembly shall pass laws for the protection of operative miners. The reasoning on which they are based is, however, applicable to the present case, as is the language in Carterville Coal

breach of his statutory duty to take certain precautions to protect the servant from injury by dangerous machinery, have established the doctrine that the defendant does not discharge his statutory obligation by merely affecting the servant with notice of the danger, which. but for the former's breach of duty, would not exist. Thomas v Quartermaine, L. R. 18 Q. B. Div. 685, 56 L. J. Q. B. (N. S.) 340, 13 Am. Neg. Cas. 128n, 130n (1887). The same doctrine was applied in Britton v. Great Western Cotton Co., L. R. 7 Exch. 130, 13 Am. Neg. Cas.

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529n (1872), in which a servant was injured by being caught in an unprotected flywheel while engaged in oiling the bearings.

In Baddeley v. Granville, L. R. 19 Q. B. Div. 423, 56 L. J. Q. B. (N. S.) 501 (1887), the court regarded a contract between a master and servant releasing the former from liability for injuries caused by the master's violation of a statutory duty as against public policy, the theory being that there ought to be no encouragement given to the making of an agreement between two persons whereby one of