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The principle is well stated by the Supreme Court of Connecticut, in a case where the injury the servant complained of was caused by his coming accidentally in contact with machinery which, it was claimed, ought to have been covered so as to protect against such an accident. “The employee here was acquainted with the hazards of the business in which he was engaged, and with the kind of machinery made use of in carrying on the *business. He inust be held to have understood the [*552) ordinary hazards attending his employment, and therefore to have voluntarily taken upon himself this hazard when he entered into the defendant's service. Every manufacturer has a right to choose the machinery to be used in his business, and to control that business in the manner most agreeable to himself, provided he does not thereby violate the law of the land. He may select his appliances, and run his mill with old or new machinery, just as he may ride in an old or new carriage, navigate an old or new vessel, occupy an old or new house, as he pleases. The employee having knowledge of the circumstances on entering his service for the stipulated reward, cannot complain of the peculiar taste and habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service.” 1
'Hayden o. Smithville Manf. Co., 29 Conn.548, 558, per ELLSWORTH,J., wbo, in citing authorities, refers, among others, to what is said by BRAMWELL,B., in Williamso. Clough, 8 H.& N.258,260. See, also, Priestley o. Fowler, 3 M. & W.1; Dynen o. Leach, 26 L. J. Exch. 221; S. C. 40 Eng. L. & Eq. 491; Seymour o. Maddox, 16 Q. B. 326. This last case was thought by the Court of Appeals of New York to have gone too far. See Ry. man o. Fowler, 24 N. Y. 410. A rail. way company is not bound to change its machinery in order to apply every new improvement or supposed improvement in appliances; and an employee who consents to operate the machinery already provided by the company, koowing its defects, does 60 at his own risk. Wonder o. B. & O. R. R. Co., 32 Md. 411. The case of Coombs 0. New Bedford Cordage
Co., 102 Mass. 572; 8. C. 3 Am. Rep. 506, was very similar in many respects to that of Hayden o. Smithville Manf. Co., supra, and the same general prin. ciple was laid down. The failure to employ sufficient assistance does not render the employer liable to a servant who, knowing the facts, had continued in the business without objection. Skipp o. Eastern Counties R. R. Co., 9 Exch. 223; S. C. 24 Eng. L. & Eq. 396. But, see Thorpe 0. Miss., &c., Co., 89 Mo. 650. In Woodley v. Metropolitan R. R. Co., L. R. 2 Ex. D. 384, it is said by COCKBURN, Ch.
It is competent to an employer, at least so far as civil consequences are concerned, to invite persons to work for him under circumstances of danger caused or aggravated by want of due precautions on the part of the employer. If a man chooses to accept the employ
[*553] *2. The master may also be guilty of actionable negli
gence in exposing persons to perils in his service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most freqnently in the employment of infants. It has been repeatedly held that the case of an infant is no exception to the general rule which exempts the master from responsibility for injuries arising from the hazards of his service. But while this is unquestionably true as a rule, it would be gross injustice, not to say absurd- . ity, to apply in the case of infants the same tests of the master's culpable negligence which are applied in the case of persons of maturity and experience. It may be ordinary caution in one case to apprise the servant of the danger he must guard against, while in the case of another, not yet beyond the years of thoughtless. childhood, it would be gross and most culpable, if not criminal, carelessness for the master to content himself with pointing out. dangers which were not likely to be appreciated, or if appreciated, not likely to be kept with sufficient distinctness and caution in mind, and against which, therefore, effectual protections ought to be provided. The duty of the employer to take special precautions in such cases, has sometimes been very emphatically asserted by the courts.' The Supreme Court of Massachu
ment, or to continue in it, with a full knowledge of the danger, he must abide the consequences, so far as any claim to compensation against the employer is concerned.” Again: “That which would be negligence in a company, with reference to the state of their premises, or the manner of conducting their business, so as to give a right to compensation for an injury resulting therefrom to a stranger lawfully resorting to their premises, in ignorance of the existence of the danger, will give no such right to one who, being aware of the danger, voluntarily encounters it, and fails to take the extra care necessary for avoiding it.” See further, Fort Wayne, &c., R. R. Co. o. Gildersleeve, 33 Mich. 133; Ladd v. New Bedford, &c , R. R. Co., 119 Mass. 412; S. C. 20 Am. Rep. 331; Gibson 0. Erie R. Co., 63 N. Y. 449; S. C. 20 Am. Rep. 552: Belair o. Chicago, &c., R. R. Co., 43 Iowa, 662; St. Louis, &c., R. R. Co. 0. Britz, 72 III. 256, and see cases cited, p. 636, n. 1 supra. The master need not use the newest or safest ap. pliances. He must furnish reasonably safe ones. Hull v. Hall, 78 Me. 114; Probst o. Delamater, 100 N. Y. 266; Sweeney 0. Berlin, &c., Co., 101 N. Y. 520; Bajus v. Syracuse, &c., Co., 103 N. Y. 312; Hickey o. Taaffe, 105 N. Y. 26; Allerton, &c., Co. v. Egan, 86 III. 253; Simmons v. Chicago, &c., Co., 110 III. 340; Smith v. St. Louis, &c., Co., 69 Mo. 32; Siela 0. Hannibal, wc., Co., 82 Mo. 430; Huhn t. Miss, c., Co., 92 Mo. 440; Mich. Centr., &c., Co. 0. Smithson, 45 Mich. 212; Guthrie v. Louisville, &c., Co., 11 Lea, 372; Tabler v. Hannibal,
&c., Co., 5 S.W. Rep. 810 (Mo).; Miss, &c., Co. o. Lyde, 57 Tex. 505; Buras 6. Chicago, c., Co., 69 la 450; Louisville, &c., Co. o. Orr, 84 Ind. 50. See Bradbury 0. Goodwin, 103 Ind. 286. A master is not liable for using an appliance of a kind which has long been safely used and from the use of which an injury could not reasonably be anticipated. Burke e. Witherbee, 98 N. Y. 562; Kitteringham o. Sioux City, &c., Co., 62 Ia. 285; Sjogren o. Hall, 53 Mich. 274; Richards o. Rough, Id. 212. Where the master furnished suitable windlass, ropes, &c., for building a windmill, he was held not liable for negligence of the men in guying the wind. lass. That is a servant's duty. Peschel o. Chicago, &c., Co., 62 Wis 338, and see Floyd o. Sugden, 134 Mass. 563; Robinson 6. Blake Mig. Co., 143 Mass. 528. He is liable for using a safe machine in an unusual and dangerous way without warning servant. White 0. Nonantum, &c., Co., 144 Mass. 276. Master held re. sponsible for exposing servant to poi. sonous exhalations. West o. St. Louis, &c., R. R. Co., 63 Ill. 545; Citizens' Gas. Co. o. O'Brien, 118 Ill. 174. It is the master's duty to prescribe sufficient rules for tbe conduct of the business. Regan o. St. Louis, &c., Co., 6 S. W. Rep. 371 (Mo.); Sheehan e. New York, &c., Co., 91 N. Y. 332; Abel o. Pres., &c., Del., &c., Co., 103 N. Y. 581. But he need not adopt the safest system. Hannibal, &c., Co. . Kanaley, 17 Pac. Rep. 324 (Kan.). The servant takes the risk of his fellow servant's failure to obey the rules. Slater 0. Jewett, 85 N, Y. 61.
'King o. Boston, &c., R. R. Co., 9 Cush. 112; Gartland 0. Toledo, &c., R. R. Co., 67 Ill., 498. See a hard case in Murphy o. Smith. 19 C. B. (N. 8.) 361. If he understands the risk he is held to accept it. Hickey 0. Taaffe, 105 N. Y. 26; McGingis o. Can. Sou. Bridge Co., 49 Mich. 466; Viets 0. Toledo, &c., Ry. Co., 55 Mich. 120; Brazil, &c., Co. 9. Cain, 99 Ind. 282; Atlas Eng. Works o. Randall, 100 Ind. 293; Youll o. Sioux City, &c., Co., 66 Ia. 346; Curran v. Merch., &c., Co., 130 Mass. 374; Williams v. Churchill, 137 Mass. 243; Rock 0. Ind., &c., Mills, 142 Mass. 22. So a patent danger as from un. covered machinery. Fones v. Phillips 39 Ark. 17; Ciriack Merch., &c., Co., 15 N. E. Rep. 579 (Mass.); or from falling lumber. East, &c., R. Co. o. Sims, 6 S. E. Rep. 595; Contra, Miss. Pac., &c., Co., o. Callbreath, 66 Tex. 626. But whether a boy takes risk from fire when working on a fifth foor with no fire escape is for the
jury to say. Schwander 0. Birge, 33 Hun, 186.
2 Grizzle o. Frost, 3 Fost. & F. 622;. Coombs o. New Bedford Cordage Co., 102 Mass. 572; S. C. 3 Am. Rep. 506; O'Connor 0. Adams, 120 Mass. 427. In Bartonshill Coal Co. 0, McGuire, 3 Macq. H. L. 300, 311, Lord CHELMSFORD, in speaking of an injury to a. young girl from exposure to chinery in the building where she was employed, says: “It might well be considered that, by employing such a helpless and ignorant child, the master contracted to keep her out of harm's way in assigning to her any work to be performed.” One who put a boy of Afteen in charge of a wild and fractious horse in a place where trains of cars, moved by steam, were approaching in opposite directions, was held liable for an injury to the boy in consequence of the horse being frightened and becoming unmanageable. Hill o. Gust, 55 Ind. 45. The general obligation of the master
[*554) setts * has very properly said, in a case in which
defendants relied for their protection upon a notice of danger which they had given to the party injured: “The notice which the defendants were bound to give the plaintiff of the nature of the risks incident to the service which he undertook, must be such as to enable a person of his youth and inexperience in the business intelligently to appreciate the nature of the danger attending its performance. The question, indeed, on this branch of the case is not of due care on the part of the plaintiff, but whether the cause of the injury was one of which, by reason of his incapacity to understand and appreciate its dangerous character, or the neglect of the defendants to take due precautions to effectually inform him thereof, the defendants were bound to indemnify him against the consequences. But in determining this question it is proper and necessary to take into consideration not only the plaintiff's youth and inexperience, but also the nature of the service which he was to perform, and the degree to which his attention, while at work, would need to be devoted to its performance. The obligation of the defendants would not necessarily be discharged by merely informing the boy that the employment itself, or a particular place or machine in the building or room in which he was set to work, was danger.
Mere representation in advance that the service generally, or a particular thing connected with it, was dangerons, might give him no adequate notice or understanding of the kind and degree of the danger which would necessarily attend the actual performance of his work.”! This is not a rule which in its
to give information to one who, from immaturity or otherwise, would not be likely to understand and appreciate it, is affirmed in Sullivan 0. India Manuf. Co., 113 Mass. 396, though it is said it would be sufficient if the servant had the proper information from some other source.
GRAY, J., in Coombs o. New Bed. ford Cordage Co., 102 Mass. 572, 596. Where an inexperienced boy, was sent into a mine to bring out tools and was injured by falling rock negligently left by other workmen, the master was held liable for failure
to inform him of the danger. Jones 0. Florence Min. Co., 66 Wis. 268, citing many cases, and see pole to this case, 25 Am. L. Reg. (N. 8.) 591. Where a minor was injured the day after he entered service as a bruke man by coupling a car with a double deadwood it was held that the master would be liable though the danger could be seen, if as a matter of fact the minor did not know and was not chargeable with the duty to know the risk incurred in the coupling, Louisville, &c., Co. o. Frawley, 110 Ind. 18. See, also, Miss. Pac., &c.,
application is confined exclusively to infants: the principle is a general one which requires good faith and reasonable prudence on the part *of the employer, under the special [*555] circumstances of the particular case; of which infancy, if it exists, may be a very important one, but possibly not more so than some others.'
3. The master may also be negligent in commanding the servant to go into exceptionally dangerous places, or to subject himself to risks which, though he may be aware of the danger, are not such as he had reason to expect, or to consider as being within the employment.
It has been often—and very justly-remarked that a man may decline any exceptionally dangerous employment, but if he voluntarily engages in it he should not complain because it is dangerous.' Nevertheless, where one has entered upon the em
Co. o. Callbreath, 66 Tex. 526. A similar requirement of extra caution and care in the case of small children received by carriers without attendants, was laid down in East Saginaw City Railway Co. o. Bohn, 27 Mich. 503. And see the well reasoned case of Railroad Co. o. Fort, 17 Wall. 553, in which the obligation to give to immature persons information of unknown or unappreciated perils is considered and insisted upon in an opin. ion by Davis, J.
" See Chicago, &c., R. R. Co. 0. Bayfield, 37 Mich. 205: Patterson v. Pittsburgh, &c., R. R. Co., 76 Peun. St. 389; S. C. 18. Am. Rep. 412. Cases of liability for failure to instruct inexperienced adult servants. Parkhurst 0. Johnson, 50 Mich. 70; Smith 0. Oxford Iron Co., 42 N. J. L. 467; Hawkins o. Johnson, 105 Ind. 29; Smith 0. Pen. Car Works, 60 Mich. 501; Miss. Pac., &c., Co. 0. Watts, 64 Tex. 568. If the danger is obvious and familiar, a servant cannot demand instruction as to it. Ber. ger o. St. Paul, &c., Ry. Co., 38 N. W. Rep. 814 (Minn.)
2 “A master cannot be held liable
for an accident to his servant while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowl. edge as the master.” BRAMWELL, B., in Williams 0. Clough, 3 H. & N. 258, 260. See Mad River, &c., R. R. Co. v. Barber, 5 Ohio, (N. 8.) 541. An employee injured by the falling of a hoisting apparatus sued his employer. Held, that the liability of the defendant depended on three facts: 1. The defective and unsafe condition of the apparatus and that the injury proceeded therefrom. 2. That de fendant knew or ought to have known of the defect. 3. That plaintiff did not know of it and had not equal means of knowledge. Malone o. Hawley, 46 Cal. 409. If, in obedience to express orders, an engineer ruos over a track known to biin to be unsafe yet in daily use he is not necessarily guilty of contributory negligence. Hawley o. Nor. Centr., &c., Co., 82 N. Y. 370. See McGlynn o. Brodie, 31 Cal. 376; Baltimore, &c., R. R. Co. 0. Woodward, 41 Md. 268. Of extrinsic and extraordinary risks it is