v. Kansas City, St. J. & C. B. R. Co. 115 Mo. 205, 21 S. W. 503, and Wuotilla v. Duiuth Lumber Co. 37 Minn. 153, 155, 5 Am. St. Rep. 832, 33 N. W. 551, was the defense of assumption of risk insisted upon and discussed. The defense applied, considered, and determined in each of them was contributory negligence, and the distinction between the two defenses was not argued, considered, or determined. The opinions in these cases are not, therefore, determinative of the issue. In the opinions of the courts in O'Mellia v. Kansas City, St. J. & C. B. R. Co. 115 Mo. 205, 212, 218, 21 S. W. 503; Wuotilla v. Duluth Lumber Co. 37 Minn. 153, 155, 5 Am. 3t. Rep. 832, 33 N. W. 551; and Thorpe v. Missouri P. R. Co. 89 Mo. 650, 653, 58 Am. Rep. 120, 2 S. W. 3, and in some of the text-books cited, the two defenses of assumption of risk and contributory negligence are confused or treated as interchangeable, and it is either assumed or stated that a servant can assume no risk the danger of which is not so imminent that no prudent person would continue in the employment and take the risk of the injury likely to result from it. But in other and later decisions the supreme courts of Minnesota and Missouri have clearly disregarded the theory that assumption of risk and contributory negligence are identical, and have expressly declared that, by entering and continuing in the service, an employee assumes, not only such risks as are ordinarily incident to the employment, but also such extraordinary risks as become apparent to the employee by ordinary observation, or have been discovered and incurred without complaint, whether the danger from them was so imminent that no prudent person would incur it or not. Smith v. Winona & St. P. R. Co. 42 Minn. 87, 43 N. W. 968; Berger v. St. Paul, M. & M. R. Co. 39 Minn. 78, 38 N. W. 814; Devitt v. Pacific R. Co. 50 Mo. 302, 305; Epperson v. Postal Teleg. Cable Co. 155 Mo. 346, 372, 50 S. W. 795, 55 S. W. 1050; Roberts v. Missouri & K. Teleph. Co. 166 Mo. 370, 379, 66 S. W. 155; Steinhauser v. Spraul, 127 Mo. 541, 562, 27 L. R. A. 441, 28 S. W. 620, 30 S. W. 102; Fleming v. St. Paul & D. R. Co. 27 Minn. 111, 114, 6 N. W. 448; Clark v. St. Paul & S. C. R. Co. 28 Minn. 128, 9 N. W. 581; Greene v. Minneapolis & St. L. R. Co. 31 Minn. 248, 47 Am. Rep. 785, 17 N. W. 378; Wilson v. Winona & St. P. R. Co. 37 Minn. 326, 5 Am. St. Rep. 851, 33 N. W. 908.

the discharge of this duty, and may be led to furnish more defective places and appliances than he otherwise would do; and that for this reason the doctrine of assumption of risk ought not to be permitted to apply in cases in which the danger is not so imminent that prudent persons would not incur it. The answer to this contention is: (1) That the servant is constantly at liberty to accept or reject the employment, and may do so at any time in case the wages do not in his opinion compensate him for the hazards as well as the work of his avocation; that he ought in the first instance to assume the known or obvious risks of the employ ment, because his constant use of the place and appliances necessarily makes him more familiar with them than in the nature of things his master or inspector can ordinarily be; and (2) that by a simple complaint to his employer he may relieve himself from the assumption of the risk for a reasonable time to enable the master to remove the defect. But a discussion here of the question what the rule of law upon this subject ought to be will prove fruitless if that rule is already established by controlling authority, and the question whether or not it has become thus settled will, therefore, first be considered. Is it the law of assumption of risk declared or sustained by the decisions of the Supreme Court which are controlling here, that the risks which may be lawfully assumed are those only from which the danger is so imminent that no prudent person would incur it? Is it the law generally adopted by the Federal courts, and usually applied by the courts of the states? If it is, many courts have misconceived this rule, and the books are full of long lines of erroneous decisions upon this subject.

The danger from the negligence of fellow servants is not so imminent that persons of ordinary care and prudence will not and do not incur it, and yet the Supreme Court and the courts of America and England generally agree that, in the absence of statutory provisions to the contrary, an employee who, with others, enters the service of a common master, assumes the risk of their negligence. Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914. The danger from unblocked frogs upon a railroad is not so imminent that employees of ordinary care and prudence would not and do not engage and continue to operate trains over them, and yet the Supreme Court It is said that if, by entering or contin- and other courts hold that such servants asuing in the service, an employee may assume sume the risk of the injuries which they the risk of a defect which arises from the may entail. Southern P. Co. v. Seley, 152 violation of the duty of the master to exer- U. S. 145, 155, 38 L. ed. 391, 396, 14 Sup. cise ordinary care to provide a reasonably | Ct. Rep. 530; Appel v. Buffalo, N. Y. & P. R. safe place or reasonably safe appliances, the Co. 111 N. Y. 550, 19 N. E. 93; Gillin v. master may be in large part relieved from Patten & S. R. Co. 93 Me. 80, 86, 44 Atl.

361; Wood v. Locke, 147 Mass. 604, 18 N. E. | on two grounds. That doctrine is that, 578; Mayes v. Chicago, R. I. & P. R. Co. 63 while it is the duty of the master to exercise Iowa, 563, 14 N. W. 340, 19 N. W. 680. The ordinary care to provide a reasonably safe danger of injury from low bridges on rail-place for the servant to work and reasonroads is not so grave that servants of ordi- ably safe appliances for him to use, and nary, prudence and care would not and do while, unless he knows or by the exercise not engage and continue to operate railroads of reasonable care would have known that through them, and yet they assume the risk this duty has not been discharged by the of the injuries which result from these master, he may assume that it has been, bridges. Myers v. Chicago, St. P. M. & O. and may recover for any injury resulting R. Co. 37 C. C. A. 137, 138, 95 Fed. 406, from the failure to discharge it, yet he as407; Brossman v. Lehigh Valley R. Co. 113 sumes all the ordinary risks and dangers inPa. 490, 57 Am. Rep. 479, 6 Atl. 226; Smith | cident to the employment upon which he env. Winona & St. P. R. Co. 42 Minn. 87, 43 ters and in which he continues, including N. W. 968; Devitt v. Pacific R. Co. 50 Mo. those resulting from the negligence of his 302, 305. The danger of injury from work- master which are known to him, or which ing on the greasy floor of a packing house, would have been known to a person of ordior from depressions in cement floors, is not nary prudence and care in his situation by so grave that persons of ordinary prudence the exercise of ordinary diligence. The first would not and do not engage and continue ground upon which this rule of law rests is to work upon them, and nevertheless the the maxim, Volenti non fit injuria. A servrisk of such injuries is assumed by the servant is not compelled to begin or continue to ants who engage in the employments. Cudahy Packing Co. v. Marcan, 54 L. R. A. 258, 45 C. C. A. 515, 517, 106 Fed. 645, 647; Kleinest v. Kunhardt, 160 Mass. 230, 35 N. E. 458; Hoard v. Blackstone Mfg. Co. 177 Mass. 69, 71, 58 N. E. 180. The danger of injury from tending the revolving knives of a relishing machine (Bohn Mfg. Co. v. Erickson, 5 C. C. A. 341, 343, 12 U. S. App. 260, 55 Fed. 943, 945), from swinging a loaded trunk from one car to another by means of a strap attached to it (Gowen v. Harley, 6 C. C. A. 190, 197, 12 U. S. App. 574, 56 Fed. 973, 980), from loading marble slabs upon their edges upon a wagon and drawing the wagon along the street (Motey v. Pickle Marble & Granite Co. 20 C. C. A. 366, 369, 36 U. S. App. 682, 74 Fed. 155, 158), from using a plugged iron gas pipe, rather than a wooden bar, to tamp dynamite into drilled holes (King v. Morgan, 48 C. C. A. 507, 511, 109 Fed. 446, 450), were not so imminent that prudent servants familiar with the duties of these various avocations would not and did not engage and continue to use the defective articles; and yet this court has held in all these cases that these servants assumed the risks of the injuries which resulted from them. All these decisions are inconsistent with the theory submitted to the jury in this case for their guidance, and expressed in the opinion of the majority of this court in Southern P. Co. v. Yeargin, and the decision in King v. Morgan was rendered subsequent to that in the Yeargin Case, so that the later opinion, as well as the earlier opinions of this court, are not in accord with the charge given to the jury by the court below. Are all these decisions wrong?

The doctrine of assumption of risk is placed by the authorities and sustained up.

work for his master. Ordinarily, he does not work for him under a contract for a stated time. He is at liberty to retire from his employment, and his master is free to discharge him, at any time. The latter constantly offers him day by day his wages, his place to work, and the appliances which he is to use. The former day by day voluntarily accepts them. By the continuing acceptance of the work and the wages he voluntarily accepts and assumes the risk of the defects and dangers which a person of ordinary prudence in his place would have known. No one can justly be held liable to another for an injury resulting from a risk which the latter knowingly and willingly consented to incur. Fitzgerald v. Connecti cut River Paper Co. 155 Mass. 155, 161, 31 Am. St. Rep. 537, 29 N. E. 464; Leary v. Boston & A. R. Co. 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115; Buzzell v. Laconia Mfg. Co. 48 Me. 113, 7 Am. Dec. 212; Mundle v. Hill Mfg. Co. 86 Me. 400, 407, 30 Atl. 16.

The second ground upon which assumption of risk is based is that every servant who enters or continues in the employment of a master without complaint thereby either expressly or impliedly agrees with him to assume the risks and dangers incident to the employment which a person of ordinary prudence in his situation would have known by the exercise of ordinary diligence and care, and to hold his master free from liability therefor. Thus a master employs a servant to tear down or repair a building that is obviously in danger of falling upon the workman. The latter perceives the dan gerous character of the place, and agrees upon the wages he will accept to perform it. The building falls upon, and injures him. He cannot recover of his employer, because

from.

This clear distinction between assumption of risk and contributory negligence has been repeatedly announced and constantly maintained in the Federal courts and in most of the courts of the states. The law upon this subject which controls this case and all cases of this character in the Federal courts is stated in Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 34 L. ed. 235, 241,

follows, and, so far as our investigation has extended, the rules of law thus announced have never been disregarded or modified by that court in any subsequent decision: "Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employees. Nor are they bound to supply the best and safest or newest of those ap

he willingly assumed the risk. Another to assume and to hold the former harmless employs a servant to feed crude rubber between revolving rollers, and in pushing the material through the rollers his hand is caught and crushed. He cannot recover for his injury, because he voluntarily assumed the risk which the rollers and their use entailed. Sullivan v. Simplex Electrical Co. 178 Mass. 35, 39, 59 N. E. 645. A third employs a servant to paint hatchets under a rack upon which they are placed to dry. During his employment this rack which safe-10 Sup. Ct. Rep. 1044, in the quotation which ly held the hatchets is removed, and a new one is substituted for it which is dangerous because the jar sometimes dislodges the hatchets and causes them to fall upon the workman below. Nevertheless the servant continues to paint beneath them. A hatchet falls upon and injures him. He cannot recover of his master for the injury, because he has voluntarily assumed the risk; and this is none the less true, says Mr. Justice Holmes, that fear of loss of his place in-pliances, for the purpose of securing the duced him to stay. Lamson v. American Axe & Tool Co. 177 Mass. 144, 145, 83 Am. St. Rep. 267, 58 N. E. 585. In the first case the danger may have been so imminent that a person of ordinary prudence would not have entered upon or continued in the employment. But in the two other cases it certainly was not of that character. The truth is that, while assumption of risk and contributory negligence both apply to prevent a recovery in cases in which the servant has knowingly and willingly exposed himself to dangers too imminent for prudent persons to incur, they are neither identical in effect nor coincident in extent, and the latter has no application and constitutes no defense in that great majority of cases in which assumption of risk is an impregnable bar to a recovery where prudent persons assume the obvious dangers of their employments which are neither imminent nor great. Assumption of risk is the voluntary contract of an ordinarily prudent servant to take the chances of the known or obvious dangers of his employment and to relieve his master of liability therefor. Contributory negligence is the causal action or omission of the servant without ordinary care of consequences. The one rests in contract, the other in tort. Contributory negligence is no element or attribute of assumption of risk. The latter does not prevail because the servant was or was not negligent in making his contract and in exposing himself to the defect and danger which injured him, but because he voluntarily agreed to take the risk of them. No right of action in his favor in such a case can arise against the master, because the latter violates no duty in failing to protect the servant against risks and dangers which the latter has voluntarily agreed'

safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employee or servant. But if the employee knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And further, if the employee himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer."

Here the two defenses of assumption of risk and contributory negligence are separately stated, and the first failed because the servant "did not know that the belt in which he was caught had been recently, and perhaps imperfectly, repaired," and "was wholly unaware of the danger attendant upon putting on the belt by hand," while the defense of contributory negligence failed because the defendant failed to satisfy the jury that the servant was not exercising ordinary care in placing the belt upon the pulley.

In Union P. R. Co. v. O'Brien, 161 U. S. | servant may exercise the greatest care, and 451, 454, 456, 40 L. ed. 766, 770, 16 Sup. Ct. yet be precluded from recovery for an inRep. 618, the Supreme Court sustained a jury in the performance of his service, berefusal to submit an instruction to the jury cause the risk was assumed. Miner v. Conupon the express ground that it confused necticut River R. Co. 153 Mass. 398, 26 N. these two distinct defenses,--assumption of E. 994." risk and contributory negligence. Its words were: "The second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an employee in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances."

In Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24, a case in which the opinion was filed November 2, 1903, the Supreme Court says: "The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer's negligence in performing such duties. The employee is not obliged to pass judgment upon the employer's methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. The rule is subject to the exception that where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation. In other words, if he knows of a defect, or it is so plainly observable that he may be presumed to know of it, and continues in the master's employment without objection, he is taken to have made his election to continue in the employ of the master notwithstanding the defect, and in such case cannot

recover.

To the same effect is the opinion of the circuit court of appeals of the sixth circuit in Narramore v. Cleveland, C. C. & St. L. R. Co. 48 L. R. A. 68, 37 C. C. A. 499, 501, 504, 505, 96 Fed. 298, 301, 304, 305, where Judge Taft, delivering the opinion of that court, said: "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. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes, or contributes to cause, the injury to himself; but the correct statement is that no right of action arises. in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly or impliedly to assume. The master is not, therefore, guilty of actionable negligence towards the servant." P. 75, 48 L. R. A., pp. 501, 502, 37 C. C. A., and p. 301, 96 Fed. After discussing various cases in which servants had entered or continued in the employment of their masters after discovering defects in machinery, he said: "Assumption of risk is in such cases the acquiescence of an ordinarily prudent man in a known danger, the risk of which he assumes by contract. Contributory negligence in such cases is that action or nonaction in disregard of personal safety by one who, treating the known danger as a condition, acts with respect to it without due care of its consequences." P. 76, 48 L. R. A., p. 504, 37 C. C. A., and p. 304, 96 Fed. And again: "Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes the risk cannot be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid inju

In Peirce v. Clavin, 27 C. C. A. 227, 230, 53 U. S. App. 492, 82 Fed. 550, 553, the circuit court of appeals of the seventh circuit, in an opinion delivered by Judge Jenkins, said: "The court below ignored wholly the doctrine of assumption of risk, and refused the instructions requested in that behalf, erroneously supposing that absolute knowledge of the defect which existed during the entire time of his service could not, under any circumstances, amount to an assumption of risk, but merely cast upon him greater care in the use, or in avoiding danger from the defective appliance. This is manifest error, for which we think the judgment must be reversed. The doctrine of assump-rious consequences. One who does not use tion of risk is not to be confounded with the doctrine of contributory negligence; for, where the former doctrine is applicable, the

such care, and who, by reason thereof, suffers injury, is guilty of contributory negli gence, and cannot recover, because he, and

not the master, causes the injury, or because | ley v. Gutta Percha & Rubber Mfg. Co. 113 they jointly cause it." P. 77, 48 L. R. A., | N. Y. 540, 21 N. E. 717: Atlas Engine Works p. 505, 37 C. C. A., and p. 304, 96 Fed.