labor, is unsafe or unfit in any particular, and notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it result in injury to him. The reason assigned for this was, that the servant was a volunteerthat he voluntarily entered into or continued in the employment at his own risk, and waived any results occurring from the defect, inasmuch as he was a free agent and had power to accept or reject the employment. 2. That the servant contracts with reference to things as they are known to be, or with proper care could have been known, and takes upon himself the natural and ordinary risks and dangers incident to the service, fairly arising within the scope of his employment, including negligence of his fellow-servants, hence no wrong is done if he suffers from a risk he has assumed; volenti non fit injuria. 13 This ruling was modified in cases where the servant objected or protested against, or informed the master of the defect;14 so that in such cases it was left to the jury to determine whether the servant had been guilty of negligence. It was further modified so as to allow the jury to determine the question of negligence when the master promised to remedy the defect, or held out inducements to the servant to remain in the service, notwithstanding the defect.1 15 This doctrine is correct, but has not

13 Hough v. Railroad Co., 100 U. S. 215; Cooley on Torts, 541; Sherm. & Red. Neg., sec. 94; Woodley v. Railroad Co., 2 Exch. Div. 381; Devitt v. Pacific R. Co., 50 Mo. 302; Loonam v. Brockway, 28 How. Pr. 472; Dale v. Railroad Co., 63 Mo. 435.

11 Illinois R. Co. v. Jewell, 46 Ill. 99; Toledo R. Co. v. Eddy, 72 Ill. 138; Crutchfield v. Railroad Co., 76 N. C. 320; Allerton Packing Co. v. Egan, 86 Ill. 253; Davis v. Railroad Co., 20 Mich. 105; McMillan v. Railroad Co., 20 Barb. 449; Patterson v. Railroad Co., 76 Pa. St. 389; Lumley v. Caswell, 48 Iowa, 159; Fairbanks v. Haentzsche, 73 Ill. 236; Perry v. Ricketts, 55 Ill. 234.

15 Holmes v. Clark, 6 H. & N. 319; 7 H. & N. 937; Holmes v. Worthington, 2 Fost. & Fin. 533; Laning v. Railroad, 49 N. Y. 521; Conroy v. Vulcan Iron Works, 62 Mo. 35; Paterson v. Wallace, 1 Macq. H. L. Ca. 748; Kelley v. Silver Springs Co. 7 Rep. 60; Kroy v. Railroad, 32 Ia. 357; Greenleaf v. Railroad Co. 33 Ia. 52; Muldowney v. Ill. Railroad, 39 Iowa, 615; Way v. Railroad Co. 40 Ia. 341; Lumley v. Caswell, 47 Ia. 159; Jones v. Roach, 9 Jones & Sp. 248; Crutchfield v. Railroad Co. 78 N.C. 300; Hough v. Railroad Co. 100 U. S. 215; Shanny v. Androscoggin Mills, 66 Me. 420; Snow v. Housatonic Railroad Co. 8 Allen, 441; Col. Railroad v. Ogden, 3 Col. 499; Patterson v. Pittsburg Railroad, 76 Pa St. 389.

been well defined. Is it limited to cases where the promise is given, and to defective as well as dangerous machinery, etc., and must the promise be fulfilled within a reasonable time?

The doctrine rests upon the analysis above given, and the rule is, that where the master by the exercise of ordinary care, knew, or could have known, of the defects (or promised to repair it) the servant is not guilty of negligence by working such defective machinery, unless the defect is so dangerous that a person in the exercise of ordinary care would not undertake it. Promise to repair is really only evidence of knowledge of the defect on the part of master, and even in such cases, the servant cannot continue after the defect becomes dangerous, notwithstanding promise to repair. In Clark v. Holmes,16 the court held that a servant was not guilty of negligence by remaining in the service after knowledge of the defect, by a promise of the master to repair, unless the defect was such that he "materially contributed to the injury by his own rashness." In another case17 it was held that if defective machinery may be used with care, the master, having promised to repair, and neglected so to do, is liable for any injury to the servant, unless the defect was so glaring and palpably dangerous that a man with common prudence would not use it. To the same effect are the cases cited below, 18 although some are not directly in point. To be in harmony with the adjudications, the master to be liable must have known or could have known the defect, by the exercise of ordinary diligence, and the servant must not continue after the defect becomes necessarily dangerous, so that a person exercising ordin

16 7 Hurl. & N. 937.

17 Conroy v. Vulcan Iron Works, 62 Mo. 35.

18 Hough v. Railroad Co. 100 U. S. 215; Paterson v Railroad Co. 76 Pa. St. 389; Laning v. Railroad Co. 49 N. Y. 521; Railroad v. Gildersleeve, 33 Mich. 133; Leclair v. Railroad Co. 20 Minn. 9; Brabbetts v. Railroad, 38 Mo. 289; Ford v. Railroad Co.110 Mass.261; Holmes v. Worthington, 2 Fos. & Fin. 533; Stoddard v. Railroad Co. 65 Mo. 514; Buzzell v. Laconia Manfg. Co.48 Me. 113; Couch v. Steele, 3 Ell. & Bl. 402; Kroy v. Railroad Co. 32 Iowa, 357; Greenleaf v. Railroad, 33 Iowa, 52; Snow v. Railroad, 8 Allen, 441; Rigby v. Hewitt, 5 Exch. 243; Haly v. Felton, 11 . B. 143; Senior v. Ward, 1. E. & E. 385; Chicago v. Plott, 89 Ill. 141; Stevenson v. Jewett, 16 Hun. 210; Flike v. Railroad Co. 53 N. Y. 549; Whart. Neg. 220; Sherm. & Red. Neg. § 96; Cooley on Torts, 563; Keegan v. Kavanaugh, 62 Mo. 232.

ary care would not have used it.19

The next question is, must the defect be remedied within a reasonable time after the promise? In other words, if the servant continues in the service beyond a reasonable time after the promise is made, can he recover? In Belair v. Railrord Co.,20 Crutchfield v. Railroad Co..21 Hough v. Railroad Co., 22 and sevral text writers, it asserted, but not decided that this limitation is a part of the rule, except that one writer, 23 adds, "and as we think for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." This limitation is not found in the other cases. It does not harmonize with the doctrine. It is more in harmony with the rule and the reasons for it, to hold that the servant can rely on the promise until the defect becomes so dangerous that a person with ordinary care would not risk it, and this agrees with well considered cases.24

Is this a question exclusively for the jury? As previously stated, the question of fact is whose fault caused the injury? Whether the servant was guilty of negligence in performing the service, after knowledge of the defect? The master and servant are obliged to do their duty, and if either fail, liability attaches for the consequences, because in law it is the result of the carelessness of him who has failed to do his duty; hence, in all cases their relative duties are to be balanced, and the question is, whose act was the proximate cause of the injury. The presumption is that both master and servant did their duty; the master that he promised and kept in order safe machinery, etc., and the servant that he assumed the ordinary risks incident to the use of such machinery, etc. ;25 hence for the ser

19 Railroad Co. v. Swett, 45 Ill. 197; Porter v. Railroad Co. 60 Mo. 160; O'Donnell v. Railroad Co.59 Pa. St. 239; Harrison v. Railroad Co.31 N.J.L. 293; Meban v. Railroad Co. 73 N. Y. 585; Dale v. Railroad Co 63 Mo. 455; Dorsey v. Phillips Com. Co. 42 Wis. 583; Devitt v. Railroad, 50 Mo. 302: Baylor v. Railroad Co. 40 N. J. 23; Owens v. Railroad Co. 1 Lans. 108; McGlynn v. Brodie, 31 Cal. 376.

20 43 Iowa, 662.

21 78 N. C. 300.

22 100 U. S. 215.

23 Sherm. & Redf. Neg. § 96; Wharton Neg. 220; Thompson Neg. 1009. Also see Shanny v. Androscoggin Mills, 66 Me. 420; Holmes v. Worthington, 2 Fost. & Fin. 533.

24 Sherm. & Redf. Neg. § 96.

25 Patterson v. Railroad Co. 76 Pa. St. 393; Clark v. Holmes, 7 H. & N. 937; Conroy v. Iron Works, 62 Mo.

vant to recover he must show (1), the defect and injury, (2) negligence of the master, (3) that he did not assume the risk. The negligence of the master is shown by evidence that by the exercise of ordinary care he knew or ought to have known of the defect.26 That

the servant did not assume the risk is shown by evidence that the defect or risk was not incident to the service, i. e. that with ordinary care it was not or ought not to have been known; or if he knew or could have known it he was absolved from negligence by reason of the legal excuses above given, such as a promise to remedy the defect.27 This does not mean that the servant must prove that he has not been guilty of contributory negligence, but is stated to show the primary order of the proof, because in the proof of negligence by the master is really included the rebuttal of the presumption that the injury resulted from the ordinary risks incident to the service. If the servant does not prove this, he does not make out his case, and hence in such cases it is a question for the court and not for the jury.2

28

The question of negligence is a mixed question of law and fact. If the facts are disputed it is for the jury to decide what is established.29 If the plaintiff's evidence is not

35; Stoddard v. Railroad Co. 65 Mo. 514; Keegan v. Kavanaugh, 62 Mo. 232; Railroad Co. v. Swett, 45 Ill. 197; Darsey v. Cons. Co. 42 Wis. 583, Hard v. Railroad, 32 Vt. 478; Gibson v. Railroad Co. 46 Mo. 163; Railroad v. Barber, 5 Ohio St. 541; Brydon v. Stewart, 2 McQueen, 30; Williams v. Clough, 3 H. & N. 259; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Patterson v. Wallace, 1 McQueen, 748; Wood's Master and Servant, sec. 346, and cases cited.

26 Railroad v. Troesch, 68 Ill. 545; Kemz v. Stewart, Daly, 431; Gibson v. Railroad Co. 46 Mo. 163; Haskins v. Railroad, 65 Barb. 129; Owen v. Railroad Co. 1 Lans. 108; Buzzell v. Laconia Manfg. Co. 48 Me. 113; Cayzer v. Taylor, 10 Gray, 274; Keegan v. Railroad Co. 8 N. Y. 175; Ryan v. Fowler, 24 N. Y. 410. 27 Railroad v. Barber, Ohio St. 521; McClellan v. Railroad, 20 Barb. 449; Perry v. Marsh, 25 Ala. 659; Assop v. Yates, 2 H. & N. 767; Huddleston v. Machine Shop, 106 Mass. 282; Campbell v. Railroad Co. 53 Ga. 488; Walsh v. Valve Co. 110 Mass. 23; Wonder v. Railroad Co. 32 Md. 411; Railroad v. Webb, 12 Ohio St. 175; Owen v. Railroad Co. 1 Lans. 108; Patterson v. Railroad, 76 Pa. St. 318; Fort v. Railroad Co. 17 Wall. 554.

28 Owen v. Railroad Co. 1 Lans. 108; Riley v. Baxen. dale, 6 H. & N. 445; Skipp v. Railroad Co. 9 Exch. 223; Assop v. Yates, 2 H. & N. 767; Seymour v. Maddox, 16 Q. B. 326; McMabon v. Lennard, 6 H. L. Ca. 970; Avery v. Bowden, 6 E. & B. 973; McMillan v. Railroad Co. 20 Barb. 449; Railroad Co. v. Webb, 12 Ohio St. 475.

29 Filer v. New York Cent. R. 49 N. Y. 50.

would be removed by an examination of the other clauses. But regarding this clause alone, what conclusion can be drawn from the language used. It seems to us we must say and hold that the testator therein and thereby intended to make, and did make, provision for his wife which was to be in lieu of dower and one-third of the personal esstate. The provision is to continue for her natural life. It is ample and adequate to meet her every want, to secure for her every comfort and every relief which money may provide,and which her physical health or mental infirmity may require under any possible change in her condition. The executors are imperatively directed to bear constantly in mind the wants of his wife; to set aside, use and expend whatever money may be necessary, consistently with her condition, to provide for her comfort and physical health, without limit as to the sums they may spend for these purposes. This is strong and unequivocal language, and excludes all doubt as to the meaning or intent of the testator. We are confident we have not misapprehended it, in the remarks which we have made upon this clause.

This conclusion is greatly strengthened by other clauses of the will, in which the testator carefully directs how his estate is to be managed and disposed of by his executors or the Fidelity Company, his ultimate trustee. Express provision is made for renting the flouring mills at Minneapolis by the executors; for putting them and the pine lands on Black river into a corporation, or in the event that these properties were not put into a corporation, ther for their sale and conveyance; for cutting the timber on pine lands, manufacturing it into lumber, and selling the same; and for the final distribution of the residue of the estate after all legacies and bequests were paid. These provisions are utterly inconsistent with the idea that the widow was to have dower in the estate, and demonstrate that it was the intention of the testator to make some other provision for her which should be in lieu and satisfaction of all legal rights. And so far from "it plainly appearing by the will" that she should have dower, in addition to that provision, the contrary intention is clearly manifest. Counsel referred to cases which hold that after a provision is made for the widow, where lands are devised to trustees upon trusts for any purpose, with power or direction given the trustees to occupy, manage, or lease the same, or even to cut timber on any part of the lands, this mode of disposition is considered inconsistent with a claim of dower and makes an election necessary. Birmingham v. Kirwin, 2 Schoales & L. 444; Miall v. Brain, 4 Madd. 119; Butcher v. Kemp, 5 Madd. 61: Goodfellow v. Goodfellow, 18 Beav. 365, are instructive upon this point. We do not deem it necessary to go over these cases, inasmuch as the intention to exclude dower is so perfectly plain and clear on the face or the will.

But the learned counsel who combats this view says the direction to the executors to provide for

the comfort and physical health of his wife, created no charge upon the testator's estate; that it was merely a personal direction to them, intended' to be in force only during the settlement of the estate, which the testator contemplated would be closed at the end of five years. Some of the duties imposed upon the executors by the will, it was doubtless expected they would fully discharge or perform in five years. But that was not the case in respect to all the duties intrusted to them. by the will. The direction requiring them to constantly bear in mind the wants of his insane wife, and so set aside, use, and expend whatever money might be necessary to provide for her comfort and support, created a personal trust which was to continue while she lived. This is apparent from the will. The executors

cannot discharge themselves of this important duty as they can of some other -by transfering that trust to the Fidelity Insurance, Trust & Safe Deposit Company of Philadelphia, even if that institution would agree to accept and perform it; for it was a matter of personal trust and confidence reposed in them as trustees by the testator. The will not only provides all the pecuniary means necessary for a full performance of the trust, but it expressly requires the executors to expend whatever may be essential to promote her comfort or meet her wants. To maintain and support such a trust, to enable the executor to perform the duties which it devolves upon them, they have the coutrel of the entire estate, and are required to set aside and retain in their hands a sufficient sum to meet all the possible wants of Mrs. Washburn, of every kind, while she lives. For, as we have said, this is a personal trust confided to them in addition to the ordinary powers and duties of executors. It can not be doubted that the testator regarded it as the most delicate and important duty intrusted to them under the will; therefore he selected for its performance intimate friends and relatives, persons who would most likely take a lively interest in, and watch with the greatest concern over, the welfare and comfort of his unfortunate wife. It seems hardly necessary to add that the second clause creates a personal trust within the strict sense of the term. See Saunderson v. Stearns, 6 Mass. 37; Dorr v. Wainwright, 13 Pick. 328; Dole v. Johnson, 3 Allen, 364; Carson v. Carson, 6 Allen, 397; Warner v. Bates, 98 Mass. 274; Sawyer's Appeal, 16 N. H. 459; 2 Story, Eq. Jur. secs. 1058 et seq; 1 Perry, Trusts, sec. 262; Batchelder v. Batchelder, 20 Wis. 453; Burt v. Herron, 66 Pa. St. 400; In re Sanderson's Trust, 3 Kay & J. 497; Thorp v. Owen, 2 Hare, 608; Erickson v. Willard, 1 N. H. 227; Foley v. Parrey, 1 Cooper, Sel. Cas. 219; S. C. 8 Eng. Con. Ch. R. 444; Stewart v. Chambers, 2 Sandf. Ch. 382.

But the learned counsel insists that the provision in the second clause cannot come within the statute, because the amount to be expended by the executors for the support of Mrs. Washburn rests solely in their discretion, and that a cour

will not review such discretion if exercised in good faith. So he says, whether the amount to be spent for the benefit of the widow is $1,000 or $5,000 a year, is entirely within the discretion of the executors, and that no person can be put to an election until fully advised of the extent and value of the two rights or things he must choose between. In answer to this position we say there can be no doubt, if the executors neglect or refuse to expend whatever money may be necessary to execute the trust, that a court of equity will compel them to do so. There is surely no such uncertainty as to the requisite amount as to be incapable of legal ascertainment. Id certum est quod certum reddi potest. In one sense there is no discretion in the executors or trustees upon the subject. They must expend whatever is necessary for the purposes indicated. The direction is mandatory in the will, leaving no discretion in the executors in that regard. An absolute duty is imposed to expend whatever is necessarv, regard being had to the condition and changing circumstances of Mrs. Washburn. At one time a larger sum may be called for than another, but the provision made is ample and adequate to meet every want and secure every comfort. Certainly a court of equity would find no difficulty in enforcing such an absolute trust, should the executor neglect or fail to perform it. This proposition we deem too plain to require further comment.

Thus, having reached the conclusion that the will makes provision for the widow, within the true Intent and meaning of the statute, the next question to be considered is, does the statute apply to an insane person? On this point it is vigorously insisted that it does not; that the statute provides only for cases where an election is possible; that an insane widow is incapable of making any election, of exercising any intelligent judgment or choice, therefore she cannot come within its terms. The statute manifestly implies choice or election on the part of the widow, or by some instrumentality in her behalf. At the same time it is apparent that the statute contains no exception of persons who are insane or otherwise under disability. Where the widow is sane, is sui juris, capable of making contracts, competent to bind herself by a legal obligation, the way is plain. She can elect whether she will take the devise or other provision made for her in the will of her husband, or whether she will claim that interest in his estate which the law gives her. But when we come to apply the statute to an insane widow, a non compos mentis, one who can exercise no intelligent judgment or choice, one who is not responsible for her acts, then it goes against our notions of right and justice. Still, the law is well settled that in the construction of statutes general words are to have a general operation, unless something is found in the statutes itself which affords grounds for qualifying or restraining them. "No exceptions can be claimed in favor of particular persons or classes unless they are expressly mentioned." Dixon, C. J. in Woodbury v. Shack

leford, 19 Wis. 60. The same principle was recognized and enforced in Lindsay v. Fay, 28 Wis. 177, and is doubtless in accord with the great weight of judicial opinion on this subject. As the legislature has made no exception in the statute, the courts have no right to make one, because to do so would be legislation. Were we to hold that the statute does not include a widow of unsound mind, we should certainly be making addition to it which the legislature has not seen fit to enact. The ill effects of holding that the statute did include an insane widow were most ably presented in the argument of respondents' counsel. These evil consequences, however proper for the consideration of the legislature,can really have no weight in giving consideration to a statute which is plain and unambiguous in its language. The doctrine of an inherent equity, creating an exemption as to any disability where the legislature has made none, must be abandoned, particularly in a country where the legislative power is distinct from the judicial. The result, therefore, on this point, is that we must hold that the general words in the statute have a general application, and since there is no exception as to an insane widow, the court can create none. Demarest v. Wynkoop, 3 Johns. Ch. 137; Lewis v. Lewis, 7 Ired. Law, 73; Thompson v. Egbert, 2 Har. (N. J.) 462; Bank v. Dalton, 9 How. (U. S.) 522.

The next Inquiry is, how and by whom is the election to be made? The counsel for the executors say the right and duty of making an election are personal to the widow, and must be made by her alone. But she is insane, mentally incapable of making a choice or election in the matter. This being the case, can any election be made for her under the statute, or does the power to elect fail on account of her disability? These are questions not free from difficulty, but we think they are susceptible of solution. The counsel for the respondents claims that the guardian of Mrs. Washburn can elect for her, and that the election which he has made to take her legal share in the estate is a valid election and must stand. At the same time, the counsel, with his usual fairness and candor, admits that there are many decisions disaffirming the right of the guardian to elect. This concession is not improvidently made. Many cases can be found which, in effect, hold that the statutory right of election conferred upon the widow is a strictly personal right, and cannot be exercised by another person in her behalf; that even the incapacity of the widow to elect by reason of insanity, furnishes no sufficient ground for the relaxation of this rule. Collins v. Carman's Ex'r, 5 Md. 503; Hinton v. Hinton, 6 Ired. 274; Lewis v. Lewis, supra; Sherman v. Newton, 6 Gray, 307; 3 Har. & McH. 95; Welch v. Anderson, 28 Mo. 293. We are not aware of any direct authority which decides that the guardian of an insane widow may elect for her in the absence of a statute giving him that right. In Brown v, Hodgdon, 31 Me. 65, the widow waived the provision made for her in the will. Subsequently a guardian was appointed on