Injuries arising from a danger which he voluntai'ily and with

full appreciation of the risk encounters. If, therefore, the

servant, with full knowledge and appreciation of tlie added

danger, engages to work in an unsafe place (that is not as

safe as due care on the part of the master would make it)

he assumes the risk of the situation as it is and cannot re-

cover from the master for an injury resulting from it.^

But what of risks arising subsequent to the contract, or

not known to the servant until after he has entered upon

the employment ? In such a case it cannot be said that he

impliedly contracted to assume them, unless, indeed, it be

argued that he impliedly contracted to assume any risks of

which he subsequently receives notice, a contention that

1 See Bigelow on Torts (7th ed.), §§ 753-764.

2 Consolidated Coal Co. v. Haenni, 146 111. 614.

3 Mere knowledge of defects is not enough : there must also be an ap-

preciation of the added risk. Cook v. R. Co., 31 Minn. 45.

* Coombs i\ New Bedford Cordage Co., 102 Mass. 572 ; Mahoney v.

Dore, 155 Mass. 51-3 ; Powers v. New York R., 98 N. Y. 274; Crown v.

Orr, 140 N. Y. 450; Ragon v. Toledo R., 97 Mich. 265.

5 Sweeney v. Berlin, &c. Co., 101 N. Y. 520; Knisley v. Pratt, 148 N. Y.

372; O'Maley v. South Boston Gaslight Co., 158 Mass. 135; Saxton v.

Hawkaworth, 20 L. T. n. s. 851, Cases supra.

23

354 LIABILITY OF MASTER

would push the doctrine of the implied terms to its extreme

limits. In such cases the courts fall back upon the maxim

volenti non fit injuria, and hold that if the servant remains

in the employment after a full knowledge and appreciation

of the risk arising from the failure of the master to perform

any one of the personal or non-assignable duties, and for

such a length of time and under such circumstances as to

be satisfactory evidence of his intent to assume the risk

rather than abandon the service, the risk is shifted from the

master to the servant and the latter cannot recover for an

injury arising from it.^ Whether the evidence is sufficient

to establish a voluntary assumption of the risk is a question

of fact.^ Mere knowledge of the risk is not enough: the

maxim is not ^'- scienti non fit injuria''' but ^'•volenti non fit

injuria''^ Remaining in the employment after knowledge

of the risk is not conclusive,* although, as in other similar

cases, the court may think it conclusive under the facts and

circumstances of a particular casc.^

Whether there is any distinction between cases where the

risk is primarily thrown on the employer by the common law

and cases where it is imposed upon him by statute, the courts

are not agreed. It is generally held that there may be an

assumption by the servant of the general statutory risks

enumerated in the Employers' Liability Acts.^ But a dis-

tinction is taken between such cases and the case where the

statute prescribes a specific duty, as the blocking of guard-

rails and switches or the fencing of machinery, and the

master fails to comply with the statute. In such a case some

1 Ciriack v. Merchants' Woolen Co., 151 Mass. 152.

2 Smith V. Baker, 1891, A. C. 325; Mahoney v. Dore, 155 Mass. 513;

Great N. Ry. v. Kasischke, 104 Fed. Rep. 440.

8 Smith ('. Baker, supra, pp. 337, 355. But see Powers v. New York,

&c. R., 98 N. Y. 274.

* Ibid. ; Northern Pac. R. v. Mares, 123 U. S. 710 ; Hawley v. North-

ern Central R., 82 N. Y. 370.

6 M'Peck V. Central Vt. R., 79 Fed. Rep. 590; Powers i'. New York,

&c. R., 98 N. Y. 274.

В« O'Maley v. South Boston Gaslight Co., 158 Mass. 135.

TO SERVANTS FOR HIS OWN TORTS. 355

courts hold that the risk cannot be shifted to the servant,^

while other courts hold that it may.^ Assumption of risk

is to be clearly distinguished from contributory negligence

which is a bar whether the master's duties arise at common

law or by statute.^

While the doctrine of the assumption of the risk is thus

firmly established, it is subject to certain important qualifi-

cations which may now be briefly enumerated.

(1) The servant must know and clearly appreciate the

risk arising from the master's failure to perform one of the

prescribed duties. In other words the assumption of the

risk must be really voluntary. This is a question of fact

and should ordinarily be left to the jury.^ The facts may,

however, be so obvious that the court will determine as an

indisputable inference that the servant did assume the risks.^

Risks existing at the time the servant enters the employment,

and of which he has actual or constructive notice, are gener-

ally held to be voluntarily assumed.^ Risks arising after he

enters the service are not shifted to the servant until he has

consciously and volimtarily encountered them for such a

time as to be satisfactory evidence of assumption."

(2) The servant must not be acting under coercion, as a

convict^ or a seaman,^ or a terrorized foreigner,^'' or, possibly,

a minor.ii But a fear of discharge, or a threat of discharge,

1 Narramore v. Cleveland, &c. Ry., 96 Fed. Rep. 298.

2 Knisley v. Pratt, 148 N. Y. 372, 149 N. Y. 582.

^ Narramore v. Cleveland, &c. Ry., 96 Fed. Rep. 298 ; Freeman v. Glens

Falls Paper Mill Co., 70 Hun, 530, affirmed 142 N. Y. 639.

4 Smith V. Baker, 1891, A. C. 325.

5 O'Maley v. South Boston Gaslight Co. ,158 Mass. 135. See the differ-

ence of judicial opinion in Davis r. Forbes, 171 Mass. 548.

8 Coombs V. New Bedford Cordage Co., 102 Mass. 572; Mahoney v.

Dore, 155 Mass. 513 ; Crown v. On; 140 N. Y. 450. But see Wallace v.

Central Vermont R., 138 N. Y. 302.

T Smith r. Baker, 1891, A. C 325; Libby v. Scherman, 146 111. 540.

8 Chattahoochee Brick Co. v. Braswell, 92 Ga. 631.

9 Eldridge v. Atlas Steamship Co., 134 N. Y. 187.

10 Wells & F. Co. V. Gortorski, 50 111. App. 445.

11 Brazil Coal Co. v. Gaffney, 119 Ind. 455 ; Kehler y. Schwenk, 151 Pa.

St. 505. Infancy in and of itself does not prevent the assumption of risfe

356 LIABILITY OF MASTER

is not coercion,^ thoudi it seems to be considered by some

courts evidence that the servant was not acting voluntarily.^

(3) The servant must not be acting under necessity, as

where a new risk arises subsequent to the employment which

he must for the once reluctantly encounter.'^

(4) If the master promises to remedy the defect the ser-

vant does not assume the risk during such time as may rea-

sonably be allowed for the performance of the promise,* or

until all reasonable expectation that the promise will be per-

formed is at an cnd,^ unless the danger is so imminent that

no prudent person would encounter it.^

(o) The servant may reasonably rely upon the master's

superior judgment in case the latter assures him there is no

danger, unless the danger is so obvious that the assurance

ought not to influence the conduct of a reasonably prudent

man in like circumstances^

В§ 284. Contributory negligence.

The doctrine that the master is liable to the servant for

the negligent failure to perform any one of the personal or

non-assignable duties, is subject to the further qualification

that the servant cannot recover for injuries due in any proxi-

mate degree to his own contributory negligence.^ This is

De Graff v. New York Cent., &c. R., 76 N. Y. 125; Michael v. Stanley, 75

Md. 464.