presumed, and that discretion which prompts to care." This has since been repeated and followed in a great number of cases and is well settled, with the addition that where the dangers are obvious and patent, though incident to the employment, failure to give instructions or warning of danger is not negligence: Rummel vs. Dilworth, 131 Pa., 509; Baldwin vs. Urner, 206 Pa., 459; Vant vs. Roelofs, 217 Pa., 535.

As no instructions were given the plaintiff in this case, so far as the testimony shows, it becomes necessary for us to inquire whether the defendants were excused from that duty because the plaintiff had such experience from which knowledge of the dangers of the machine may reasonably be presumed, and was possessed of that discretion which prompts to care, and whether the dangers were obvious and patent.

The experience of an employee which is necessary to excuse an employer from giving instructions and warn him of danger must be such that he must necessarily have acquired a knowledge of the danger from his continued opportunity of observing it: Fletcher vs. Traction Company, 190 Pa., 117. The plaintiff, it is true, only worked at the machine at which he was injured ten days, but he had worked in the same room where it was located for more than a year before that. He had observed, from others doing it and from his own experience, where to stand when operating it to avoid the dangerous parts of it. could see that in standing at that place he was so far from the danger that he could not reach it. He knew that if he got his hand or clothing in, or even close to the rapidly revolving lickerine rollers he would be drawn into them and injured. He knew that they were fitted with numerous sharp teeth, or hooks, that they drew the cotton waste into them, and that they tore and mangled it. He therefore we think had acquired such knowledge of the dangers of the machine from his opportunities of observation that gave him such experience as excused instructions.

He

Whether he was possessed of the dis

cretion which prompts to care and had power to avoid it depends largely, if not altogether upon his age and intelligence.

In Nagle vs. Allegheny Valley Railroad Co., 88 Pa., 35, the Supreme Court says: "An infant of the age of fourteen years is presumed to have sufficient capacity to be sensible of danger and to have the power to avoid it, and this presumption will stand until overthrown. by clear proof of the absence of such discretion as is usual with infants of that age. When an infant's responsibility for negligence is presumed to commence is a question for the Court and not for the jury." In Thompson on Negligence, Vol. 4, Section 4095, the author says: "Negligence cannot be predicated of a master's employment of a boy about a dangerous machine, or of his failure to warn him against the danger thereof, where the boy appreciated

the danger connected with the use of the machine." In Shearman and Redfield on Negligence, Sec. 73A, the authors. say, "The master is not required to obvious or clearly appreciated by the point out dangers which are perfectly his youth. The master is not charged servant after making due allowance for with these duties if the risks are known and he is capable of appreciating them." or are perfectly obvious to the servant, In Kaufhold vs. Arnold, 163 Pa., 269, it is decided that the servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the employer is not responsible for those injuries to which the employee voluntarily subjects himself. The rule applies to infants under the age of fourteen years where the employer has not been guilty of negligence. In Cracraft vs. Bessemer Limestone Company, 210 Pa., 15, Justice Potter says, " Generally speaking, the duty of an employer to give information to an employee, as to the particular perils and dangers of the service in which he is engaged, is unquestioned. But this duty does not require warning against such dangers as are the subject of common

knowledge, or are open and apparent | observe and avoid it by keeping at a to ordinary observation."

In Kehler vs. Schwenk, 144 Pa., 348, it is said, “All the cases agree that the measure of a child's responsibility is his capacity to see and to appreciate danger; and in the absense of clear evidence of the lack of it, he will be held to such measure of discretion as is shown in those of his age and experience. The measure varies, of course, with each additional year, and the increased responsibility is gradual. It makes no sudden leap at the age of fourteen. That is simply a convenient point at which the law, founded upon experience, changes the presumption of capacity and puts upon the infant the burden of showing his personal want of the intelligence, prudence, foresight, or strength usual in those of such age.'

The plaintiff here is over the age of fourteen, and as we have said appeared to be a bright and intelligent boy, and is therefore presumed to have sufficient capacity to be sensible of danger and power to avoid it, as the law presumes boys of that age possess such capacity and power. The danger here was so obvious that anyone who is at all sensible of danger could not help but observe it. He complains he was not properly instructed, yet he admits that he knew the proper place to stand to feed the

safe distance.

The cases which appear to question this position, some of which were cited by plaintiff, do not do so, as in all of them the danger was not obvious, or the duties imposed upon the injured person required him to come in close contact with dangerous machines or portions of machines, and in such case where an inexperienced person with no knowledge of the danger was not instructed how to avoid it, it was held that he could recover for injuries sustained thereby. These cases however do not apply to the question involved here.

3. It was shown that machines such as the one at which plaintiff was injured could be protected by a covering over the lickerine, and that they are in general use. This one was not provided with such a covering. If it had been, the accident could not have happened.

It is well settled that it is the duty of an employer to provide reasonably safe standard of safety is whether the appliappliances for his employees, and the ance is in common use. A workman assumes all risks of dangers which he has had an opportunity to become acquainted with and can appreciate unless he complains and is induced to remain at work by the promise of removing them: P. & R. R. R. vs. Hughes, 119 Pa., 301; Talbot vs. Sims, 213 Pa., 1; Jones vs. Burnham, 217 Pa., 286.

machine was in front of it where he was out of reach of the dangers of the In Lee vs. Dobson, 217 Pa., 349, it is lickerine. He knew this from his ob- said, "There is no uncertainty in the servation of where all he had seen oper-law applicable to cases of this kind. The ate it stood, during the more than a year he worked in the same room with it, and from his experience in operating it for ten days himself. Instructions in that particular were therefore unnecessary, as they would only have informed him of what he did know. It is impossible to conceive what other instructions could have been given him except to warn him not to allow his hand or clothing to come in contact with the lickerine. He knew of this danger, for it was right before his eyes. The most ordinary degree of care and prudence would have enabled him to have discovered the danger, and he was therefore bound to

master is not an insurer of the servant's safety. While he is required to furnish reasonably suitable and safe means with which to carry on his business, yet the servant will be deemed to have assumed all risks naturally and reasonable incident to his employment; and to have notice of all risks which to a person of his experience and understanding are or ought to be open and obvious. When one undertakes a perilous employment by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot afterwards complain in case of injury in consequence thereof that the machinery

was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe: Rummell, Admr., vs. Dilworth, 111 Pa., 343; Danisch vs. Amer, 214 Pa., 105." In Kaufhold vs. Arnold, 163 Pa., 269, it is held that even a minor under fourteen years of age assumes the risks of all dangers in his employment however they may arise against which he may protect himself by the exercise of ordinary observation and care.

The dangers in this machine were obvious, and the plaintiff being of the age at which he is presumed to be sensible of danger is presumed to have observed them during the more than a year he worked near and at the machine, and as he continued to work at it, he must therefore be held to have assumed the risks of his employment.

A different rule prevails where the danger is latent, for then he is not presumed to have assumed the risk of his employment. This is the distinction between the cases relied on by the plaintiff and this case, and the reason they do not rule it is that here the danger was obvious and there was no duty imposed upon him that required him to come in close enough proximity to danger to be injured by it.

to say, in a majority of instances, what is, and what is not, negligence as an abstract proposition. When, therefore, the facts of a given case are undisputed, and the inferences, or conclusions to be drawn from the facts, indisputable; when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond a cavil, then contribu tory negligence is matter of law. In such a case there would be nothing for the jury to decide. The case has decided itself, and it only remains to the court to declare the rule. When the facts are unchallenged, and are such that reasonable minds could draw no other inference or conclusion from them, than that the plaintiff was, or was not at fault, then it is the province of the court to determine the question of contributory negligence as one of law." West Chester Railway vs. McElwee, 67 Pa., 311; Germantown Railway vs. Walling, 97 Pa., 55; Baker vs. Fehr, 97 Pa., 70.

The standard of duty which was required of the plaintiff in this case was fixed and defined. The dangerous rollers of the lickerine were out of his reach when he stood where from observation and experience he knew he should stand to perform his duties. He was In addition to there being no testimony not required in their performance to go to submit to the jury on the question of near the point of danger, and he could defendant's negligence there was such see where it was and knew how dangerevidence of plaintiff's contributory negli-ous it was. His duty therefore was to keep away from it. The facts are indisputed, and no reasonable man draw any other conclusion than that the plaintiff was at fault in not keeping away from the danger but in actually placing his hand or arm in a perfectly obvious place of danger.

gence as prevents a recovery.

It is too well settled to need the citation of authorities that the burden is on the plaintiff not only to show negligence on the part of the defendant, but that he was not guilty of any that contributed in any degree to the accident. In Bannon vs. P. R. R., 29 Sup., 231, it is decided that when there is no conflicting testimony and the standard of individual duty has been judicially determined, the decision of the question of negligence affecting the plaintiff's right to recover and the liability of the defendant becomes the duty of the Court. In Beach on Contributory Negligence 162, the learned author says, 66 What amounts to negligence is, as we have already seen, a question of law. It is for the court

can

At the argument of this rule the plaintiff contended that because the Act of 29 May 1901, P. L., 322, Sec. 8, requires that all gearing and belting in mills such as this should be provided with proper safeguards, and there were none at this machine, the defendants cannot avail themselves of either the defense that the plaintiff assumed the risk of his employment or that he was guilty of contributory negligence, as the rollers of this machine were not properly guarded.

The authorities of other states, cited by | sented to his son's employment does not af the defendant, which show that where fect the case. it is required by statute to have all safety appliances in common use attached to a machine, and they are not so attached, the workman cannot be held in any case to have assumed the risk of his employment, for they have no appli