the said rock crusher in an unsuitable and unsafe place, and very near and by certain dangerous, unfenced, and unguarded machinery; that said defendant well knew that the said place at which said plaintiff was set to work was dangerous and unsafe; that said plaintiff was standing in the only practical place in which he could stand to oil said machinery, and in close proximity to said dangerous, unprotected, and unguarded gearing, whereby the said plaintiff was exposed to great and unnecessary risks not required by his employment; that the said defendant disregarding its duty to provide a safe place for said plaintiff to work in and disregarding its duty to use reasonable and ordinary care for the safety of said plaintiff, nevertheless ordered said plaintiff to work in and about said unsafe place, and plaintiff was injured by reason of the unsafeness and dangerous condition of said place in which he was set to work; that plaintiff had no knowledge of the unsafe condition of the said place in which he was required to work in and about said rock crusher, and was never at any time warned or informed as to the unsafe condition of said place." The allegations of the amended complaint, hereinbefore substantially set forth, show that the sole reason for the unfortunate injury to plaintiff was that he allowed the sleeve of his coat to catch in certain exposed and uncovered gearing over which it was necessary for him to reach in the performance of his work as an oiler. The complaint in one count is substantially that the defendant was negligent in not warning him, he being a man inexperienced in the use of machinery, as to the danger and the necessity for care in the performance of this duty; and in the second count that the defendant was negligent in setting him to work in a place dangerous by reason of the fact that the gearing about which he was compelled to perform his work was un. protected and unguarded. There is absolutely nothing in the complaint to intimate that the exposed condition of this gearing was not obvious. Fairly construed, the allegations of the amended complaint affirmatively show that the only condition of the machinery having to do with plaintiff's injury was patent to any casual observer, and that any one, no matter how inexperienced he was in the use or knowledge of machinery, would necessarily know of the risk entailed in working over gearing, and that if he allows his hands or arms to come in contact with the gearing he would be severely injured. Whatever danger was attendant upon the performance of his duties by plaintiff in that place was clearly apparent to any one. That danger was the possibility of allowing his hands or arms to come in contact with the uncovered and unguarded gearing. That one's hands or arms will be hurt, if allowed to become involved in the cogs of moving machinery, is so apparent a fact that certainly any adult must know it. In spite of such a general allegation of the absence of knowledge on the part of the employee as we have in this case, a complaint is demurrable, if the specific allegations thereof show that he must have known of the defects and the danger therefrom. See 1 Labatt on Master and Servant, § 388; Cleveland, etc., Co. v. Powers, 173 Ind. 105, 88 N. E. 1073, 89 N. E. 485. Under these circumstances, even if we assume that there was any negligence on the part of defendant in respect to the matters alleged in either count, a complete answer to plaintiff's action is to be found in the law relative to assumption of risks, as it existed in this State at the time he received his injuries. With full knowledge of the alleged defect in the matter of the machinery, and with full understanding and appreciation of the dangers there from attendant upon the performance of his duties as oiler, he voluntarily entered upon the employment and continued therein to the time of his accident, a period of nearly two months, without making any complaint as to the conditions. As to such a situation, under the law as it was at the time of the accident, there is practically no disagreement among the authorities. The employee assumes the risk, and cannot recover for injuries resulting therefrom. This rule is recognized by section 1970 of the Civil Code, where it is provided that mere knowledge by an employee of the defective or unsafe character or condition of any machinery, etc., shall not be a bar to recovery, unless it shall also appear that the employee fully understood, comprehended, and appreciated the dangers incident to its use, and thereafter consented to use the same, or continued in the use thereof. It was not until the Act of April 8, 1911, (Stats. 1911, p. 796), was enacted that any attempt was made to abolish the defense of assumption of risk. The rule and its limitations have been fully discussed in various decisions of this court. See Long v. Coronado R. Co., 96 Cal. 269, 13 Am. Neg. Cas. 328, 31 Pac. 170; Limberg v. Glenwood Lumber Co., 127 Cal. 598, 7 Am. Neg. Rep. 588, 60 Pac. 176, 49 L. R. A. 33; Murdock v. Oakland, etc., Co., 128 Cal. 22, 7 Am. Neg. Rep. 584, 60 Pac. 469; Anderson v. Seropian, 147 Cal. 201, 208, 81 Pac. 521; Sanborn v. Madera Flume, & Trading Co., 70 Cal. 261, 266, 13 Am. Neg. Cas. 436, 11 Pac. 710; Vestner v. Northern Cal., etc., Co., 158 Cal. 284, 289, 110 Pac. 918; Bush v. Wood, 8 Cal. App. 647, 655, 97 Pac. 709. See, also, 1 Labatt on Master and Servant, §§ 388, 393. As was said in Brett v. Frank & Co., 153 Cal. 272, 94 Pac. 1052: "The requirement that the place of employment shall be reasonably safe is itself always to be considered in connection with the rule of law as to the assumption by the employee of known and understood risks." There is nothing in the facts of this case, as disclosed by the complaint, to take it out of the operation of the rule precluding recovery. The facts shown by a fair construction of the allegations of the complaint present a case where the only inference that can reasonably be drawn is that plaintiff knew that the gearing over which he was to reach in doing his work was uncovered and unguarded, and understood and appreciated the risk and danger attendant upon the performance of his work under such conditions and that he nevertheless voluntarily assumed his employment without any complaint as to the conditions, and continued therein to the time of the injury, a period of nearly two months, without any complaint or criticism of such conditions. In view of what has been shown as to the obviousness of the danger, it is also clear that the defendant was not guilty of negligence productive of injury failing to instruct plaintiff as to such danger. There was nothing to tell him in this regard that he did not already know, or must be presumed to have known. In this connection, the language of the Supreme Court of Massachusetts, in Wilson v. Mass. Cotton Mills, 169 Mass. 67, 3 Am. Neg. Rep. 552, 47 N. E. 506, is pertinent. The court said: "The plaintiff's contention is that he was set to work on a dangerous machine without proper instructions. But it is difficult to see what the defendant's officers could have told him that he did not already know. It was apparent that the wheels were uncovered. They were certainly not bound to tell him that if he got his hand in the cogs he would be hurt. This any child of ten would know." While, as to the matters alleged in the second count, it may be assumed that, even although there was no statute in this State requiring guards on such machinery as was here in use, a conclusion that defendant was guilty of negligence in failing to provide guards for the protection of its employees could be sustained, the answer to any claim of liability on account thereof is to be found in what we have said regarding the rule of assumption of risk. We have examined the cases cited by learned counsel for plaintiff, and find nothing therein in conflict with the views we have stated. For instance, in Larson v. Bloemer, 156 Cal. 752, 106 Pac. 62, a case specially relied upon, this court substantially said that the testimony was conflicting upon the question of the ignorance of plaintiff as to the dangers of her employment, and, in reply to the claim that the peril was so obvious that she must be presumed to have been fully cognizant of it, said that from the photograph of the mangle, and the explanation of its mechanism contained in the record, it appeared that plaintiff could not see the heated cylinder which produced so much of the damage suffered by her. Substantially, the case was held to be one where the evidence was of such nature as to support a conclusion that plaintiff did not appreciate the danger of her employment under the existing conditions. Similarly, in other cases earnestly relied upon by appellant, including that of Ingerman v. Moore, 90 Cal. 410, 13 Am. Neg. Cas. 442, 27 Pac. 306, 25 Am. St. Rep. 138, there were circumstances sufficient to make the question of the plaintiff's want of knowledge and full appreciation of the danger and risk, under the existing conditions, one upon which reasonable persons might differ. In Jacobson v. Oakland Meat Co., [Cal.] 119 Pac. 653, likewise, there were special circumstances clearly avoiding the conclusion, as matter of law, that plaintiff had been guilty of contributory negligence. The cases cited by appellant from other jurisdictions are all distinguishable from the case at bar, with the possible exception of Thompson v. Edward P. Allis Co., 89 Wis. 523, 62 N. W. 527. The views expressed in the later case of Renne v. United States, etc., Co., 107 Wis. 305, 83 N. W. 473, on the question of the assumption of risk of an obvious peril, are not at all in conflict with our conclusion. The law, as we understand it, was correctly stated to the jury in that case in an instruction declaring that, if the danger "was such an open and obvious danger as that, considering his age, intelligence, experience, judgment, and discretion, he ought, in the exercise of reasonable and ordinary care, to have known and appreciated it, then the law is that the plaintiff assumed the risk of such danger, and that he cannot recover." We see no escape from the conclusion that the second amended complaint presented such a case as a matter of law, and that it therefore failed to state a cause of action. We are not to be understood as holding that it is essential for a plaintiff to anticipate in his complaint, either the defense of contributory negligence, or assumption of risk, by alleging facts negativing either, but are simply applying the well established rule that, where the allegations of the complaint do affirmatively show contributory negligence or assumption by the plaintiff of the peril producing injury, the pleading fails to state a cause of action for damages. The judgment is affirmed. We concur: SLOSS, J.; SHAW, J. SECOND EMPLOYERS' LIABILITY CASES. No. 120. MONDOU v. NEW YORK, NEW HAVEN & H. R. R. CO. [UNITED STATES SUPREME COURT, JANUARY 15, 1912.] 223 U. S. 1. 1. Master and Servant-Employer's Liability-Abrogation of Common-Law Rules. Congress, in the exercise of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employees, to the extent of abrogating the fellow-servant rule, restricting the defenses of contributory negligence and assumption of risk and extending the carrier's liability to cases of death. 2. Master and Servant-Employer's Liability-Power of Congress. The power of Congress to regulate the liability of a carrier engaged in interstate commerce, for injuries sustained by an employee while engaged in such commerce, embraces instances where the causal negligence is that of another employee engaged in interstate commerce. 3. Master and Servant-Employer's Liability Act-Liberty of Contract. The provision of the Employer's Liability Act of April 22, 1908, c. 149, § 5 (35 Stat. 65), declaring void any contract, rule, regulation or device, the purpose or intent of which is to enable a carrier to exempt itself from the liability which the Act creates, is not repugnant to the Fifth Amendment to the Constitution of the United States as an unwarranted interference with the liberty of contract. 4. Master and Servant-Employer's Liability Act-Classification. That the liability created by the Employer's Liability Act of April 22, 1908, c. 149 (35 Stat. 65), is imposed only on interstate carriers by railroad, although there are other interstate carriers, and is imposed for the benefit of all employees of such carriers by railroad who are employed in interstate commerce, although some are not subjected to the peculiar hazards incident to the operation of trains or to hazards that differ from those to which other employees in such commerce, not within the Act, are exposed, does not render the classification repugnant to the "due process of law" clause of the Fifth Amendment. 5. Master and Servant-Employer's Liability Act-Supremacy over State Laws. The regulation of the relations of common carriers by railroad and their employees, while both are engaged in interstate commerce, prescribed by the Employer's Liability Act of April 22, 1908, c. 149 (35 Stat. 65), supersedes the laws of the States in so far as the latter cover the same field. |