In Holmes v. Clarke (e), decided in 1862, the plaintiff was employed by the defendant to oil dangerous machinery. At the time the plaintiff entered upon the service the machinery was fenced, but the fencing became broken by accident. The plaintiff complained of the dangerous state of the machinery, and the defendant promised him that the fencing should be restored.1 The plaintiff, without any negligence on his part, was injured in consequence of the machinery remaining unfenced. An obligation to fence machinery was imposed by 7 & 8 Vict. c. 15, s. 21. Upon these facts the Exchequer Chamber affirmed the judgment of the Court of Exchequer, holding the defendant liable for the injury. The learned judges, although they agreed in affirming the judgment of the court below, differed as to the grounds upon which the decision should rest. The Lord Chief Justice thought that, independently of any statutory duty, the *negligence of the defendant in not fencing the machinery [507*] was sufficient to support the action, and adopted the doctrine laid down by the House of Lords in The Barton Hill Coal Company v. Reid (f). Justices Wightman and Willes differed from those reasons, but suggested no others. Mr. Justice Crompton founded his judgment on two propositions, namely, that there was no defence within the principle laid down in Priestly v. Fowler (g), and that the plaintiff had not contributed to the injury by his own negligence. Mr. Justice Byles did not rest upon the right of the plaintiff to recover on the statutable obligation incumbent on the master to fence the machinery, nor yet on the Ryan v. Fowler, 24 N. Y. 410; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Strahlendorf v. Rosenthal, 30 Wis. 674; Perry v. Marsh, 25 Ala. 659; Schooner Norway v. Jensen, 52 Ill. 373; Walsh v. Peet Valve Co., 110 Mass. 23; Akerman v. Dennison, 117 id. 407; Horner v. Nicholson, 56 Mo. 220; Baxter v. Roberts, 44 Cal. 187; Holmes v. N. E. R'y Co., L. R. 4 Ex. Ch. 254; S. C., L. R. 6 id. 123; Mellors v. Shaw, 1 B. & S. 434; Roberts v. Smith, 2 H. & N. 213. See, also, Cooley on Torts, 549 et seq., 605; Bigelow's Lead. Cases on Torts, 697 et seq. (e) 7 H. & N. 937; 31 L. J., Ex. 156. 'It is negligence for which the master may be held responsible, if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. Cooley on Torts, 559; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Patterson v. Pittsburg, etc. R. R. Co., 76 Penn. St. 389; Fort Wayne, etc. R. R. Co. v. Gildersleeve, 33 Mich. 133. (f) 3 Macq. 266. personal knowledge of the master that the machinery was improperly left unfenced, but on the broader ground that the owner of dangerous machinery is bound to exercise due care that it is in a safe and proper condition. Chief Justice Cockburn expressed a doubt whether the statutory duty had any reference to adults. In Britton v. Great Western Cotton Company (h), which was decided in the year 1872, the duty of an employer to fence dangerous machinery was again considered at some length. This case is interesting from three points of view, as it contains, first, an examination of the duty to fence under 7 Vict. c. 15, s. 21; secondly, a consideration of the circumstances which will amount to a knowledge of the dangerous character of machinery on the part of a workman; and, thirdly, a discussion upon previous authorities. At the trial, before Brett, J., it was proved that B., who was twentytwo years old, had been a coal trimmer in the employ of the defendants, from which position he was promoted to be engine driver. A few days afterwards he was asked to grease the bearings between the fly-wheel and spur-wheel of a steam engine. The fly-wheel was fifteen feet in diameter; the spur-wheel sixteen feet. In order to do this work he had to stand on a wall in a cavity made for the purpose, into which he crawled through the spokes of the flywheel. This wheel was on his left hand, revolving in a wheel-race in the engine-house at the rate of fifty-six revolutions a minute. The spur-wheel was on his right hand, revolving at the same rate in a room in the factory. The wall was two feet three inches thick, and the utmost distance between the spokes of the [508*] two wheels *was two feet ten inches. The wheel-race in which the fly-wheel revolved was fenced in the enginehouse along its outer edges, but was unprotected on the wall side at the place where B. was placed to do his work. On the sixth morning of his employment he was caught up by the fly-wheel and killed. An action was brought under Lord Campbell's Act to recover the pecuniary loss caused to his widow and child by his death. The learned judge ruled that there was no duty under the above section to fence the fly-wheel unless children were liable to pass or be employed near it; but that there was an unqualified duty to fence the wheel-race, not being otherwise secured. The (h) L. R., 7 Ex. 130. jury found that the place in question was the edge of a wheelrace, and that B. had not been guilty of contributory negligence. Leave was reserved to the defendants to move to enter a nonsuit, or verdict for them, if upon all the facts the judge ought to have ruled that there was no evidence for the jury of their liability. A rule obtained accordingly was discharged. Bramwell, B., desired to show that, independently of Holmes v. Clarke (g), which was an authority for the plaintiff, he would come to the conclusion that the plaintiff was entitled to succeed. "I am clearly of opinion," said his lordship, "that the place where the deceased was standing ought to have been fenced. I think the true construction of the 7 Vict. c. 15, s. 21, is that there is an unqualified duty to fence 'every fly-wheel directly connected with the steam engine or water wheel, or other mechanical power, whether in the engine house or not,' in all cases, whether children are liable to pass or not. . . . But now we come to the great difficulty in the case. Does the maxim' Volenti non fit injuria' apply? I think not. True, B. was in one sense 'volens.' He need not have gone where he did. But he must not only be a volunteer in the sense that he went there when he might have stopped away, but it must clearly appear that he went voluntarily, with a full knowledge and understanding of the risk." With reference to the argument that the deceased knew the danger as well as his employers, his lordship said, "that may be doubtful in fact, for he seems not to have been a skilled workman, but a coal trimmer. Assuming, however, that he did share his employers' knowledge, it must be remembered that the liability of the defendants here is not at com (g) Supra. 'If the plaintiff knew, or ought reasonably to have known, the precise danger to him of the machinery or structure in question, and still continued in the master's employment, he may be held to have assumed the extraordinary risk thus created. Dorsey v. Phillips, etc. Construction Co., 42 Wis. 583; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Patterson v. Pittsburgh, etc. R. R. Co., 76 Penn. St. 389; Cooley on Torts, 551, 555, 564, and notes. But this consequence of acquiescence must rest upon positive knowledge, or reasonable means of positive knowledge, of the precise danger assumed, and not on vague surmise of the possibility of danger. Dorsey v. Phillips, etc. Construction Co., supra. But a master is liable for injuries to his servant resulting from the master's negligence in exposing the servant to risks which the latter is incapable of appreciating. Chicago & N. W. R'y Co. v. Bayfield, 37 Mich. 205; Cooley on Torts, 553, and cases cited. mon law but by statute. They were in default, to begin [509*] with; and the *mere circumstance that the deceased entered on a dangerous employment does not exonerate them, unless he knew the nature of the risk to which, in consequence of that default, he was exposed." In touching upon the question whether the deceased was a volunteer, Channell, B., also relied upon the distinction between a statutory and common law liability, and cited the observation of Crompton, J., in Mellors v. Shaw (h), who distinguished between persons who undertake dangerous work in the ordinary course of their employment, and persons who undertake extra risk for extra wages; the latter being properly "volunteers." Some doubt was cast upon the correctness of the decision of the Queen's Bench in Caswell v. Worth (i). In Mellors v. Unwin (k), decided in the Queen's Bench in 1861, the declaration stated that the plaintiff was employed by the defendants, the owners of a mine, as a collier in their mine, and in the course of his employment it was necessary for him to descend the mine by a shaft which, by the negligence of the defendants, was constructed unsafely. It was also alleged that, owing to this fact, and, as defendants well knew, owing to there being no proper apparatus provided by the defendants to protect the plaintiff from injuries arising from the unsafe state of the shaft, a stone fell from the side of the shaft on the head of the plaintiff and wounded him. At the trial it was proved that S., one of the two defendants, was manager of the mine, and that it was worked under his personal superintendence, and that the plaintiff was not aware of the state of the shaft. The jury found the defendants guilty of personal negligence; and on motion to enter a nonsuit, the court held that on this finding S. was liable, and therefore the other defendant was liable also. Murphy v. Smith (1), decided in 1865, was an action to recover damages for an injury sustained by the plaintiff through the explosion of certain combustible materials in the defendant's factory. The defendant was a lucifer match manufacturer; S. was his foreman; and under him was D., who in the absence of S. managed the factory. The plaintiff, a boy about sixteen years of age, was (h) 30 L. J., Q. B. 333. (i) 5 E. & B. 849. (k) 1 B. & S. 437; L. J., 30 Q. B. 333. (7) 19 C. B., N. S. 361. engaged by S. One part of the process of making lucifer matches consists in the mixing of the compound *in which [510*] the ends of the matches are dipped. The mixture is free from danger until the chloride of potass is put to it, then it requires to be stirred with an experienced hand or it may explode. It was no part of plaintiff's duty to touch the mixture. On the occasion in question, however, he stirred up the mixture; an explosion ensued, and he was injured. D. was standing by at the time, but there was no evidence that the plaintiff was acting under D.'s orders, or that S. was not on the premises. The jury found that the accident was caused by the negligence of D., and that at the time he was acting as the manager of the establishment. A rule nisi to enter a verdict for the defendant, or a nonsuit, on the ground that there was no evidence of D.'s being acting manager, so as to take him out of the class of fellow-servants, and that even if he were there was no evidence of negligence on his part, was made absolute. In Wigmore v. Jay (m), the jury were directed that as the defendants had not personally attended to the erection of a scaffolding, through a defect in which (due to the use of an unsound ledger pole) the plaintiff's husband was killed, an action could not be maintained against him, and the full court refused a rule for a new trial on the ground of misdirection. So where the plaintiff was injured by the breaking of one of the rounds of a ladder belonging to his employers, the defendants, while he was ascending, Lord Campbell, in the absence of any knowledge in the defendants of the state of the ladder, directed a nonsuit. The court held that a master does not warrant the soundness of materials supplied to his workmen, but can be liable only for negligence (n).1 (m) 5 Ex. 354. 417; Indianapolis, etc. R. R. Co. v. (n) Ormond v. Holland, E. B. & E. Flanigan, 77 id. 365; Mobile, etc. R. R. 102. 1 See Cooley on Torts, 556, 557; Kelly v. Norcross, 121 Mass. 508; Ladd v. New Bedford R. R. Co., 119 id. 412; Ford v. Fitchburg R. R. Co. 110 id. 240; Indianapolis, etc. R. R. Co. v. Love, 10 Ind. 554; Fort Wayne, etc. R. R. Co. v. Gildersleeve, 33 Mich. 134; Toledo, etc. R. R. Co. v. Fredericks, 71 Ill. 294; Camp Point Manfg. Co. v. Ballou, id. Co. v. Thomas, 42 Ala. 672; Patterson |