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In New York, in Laning v. R. R.,' Folger, J., regarded the whole question as one of contributory negligence, and held that the plaintiff's knowledge of the intoxicated condition of a fellow servant was a fact for the jury and merely cast upon the plaintiff a higher degree of care. But in Gibson v. R. R.? it was held that a conductor who was struck and killed by the projecting roof of a depot building was barred from recovery by his knowledge of its character. He took service subject to the risks incident to the position and mode of construction of the depot, and if the defendant did nothing after the employment to aggravate the danger, there was no liability. In Sweeney v. Envelope Co.3 it was held by Danforth, J., that a servant accepts a service subject to the risks of the use of such machinery as is then in use therein. The defendant if he chose might carry on the business with an old rather than a new machine, and could not be required to keep in his employ a servant who would not run it. Threats of dismissal if the servant will not work at the machine are therefore not coercion. He distinguishes sharply between the permanent character and plan of the plant, as to which the owner must be allowed the fullest freedom of choice, and failure to maintain in good repair such premises and appliances as the owner may choose to use. However, in Bajus v. R. R., while Danforth, J., still maintained his previous opinion, substantially that of Lindley, L. J., in Yarmouth v. France, the majority of the court held that there was no difference between supplying an originally defective appliance and allowing a good one to fall into disrepair, and that a servant who knew of either condition, though supervening since his employment, assumed the risk thereof.

This attitude, substantially that of the Massachusetts courts, had been adopted by practically all American jurisdictions. In North Carolina alone 6 is Smith v. Baker followed. In Alabama, Holborn v. R. R.,' a case brought under an Employers' Liability clause of the code of that state, in which it was decided that mere continuance after knowledge of the defect did not bar the plaintiff from recovery unless he had failed to notify his employer, was



1 49 N. Y. 521.

63 N. Y. 449. 101 N. Y. 520.

103 N. Y. 312. 5 See, for an admirable collection of cases, Labatt, Master and Servant, chaps. xvii and xx.

6 See Lloyd v. Hanes, 126 N. C. 359. 7 84 Ala. 138.

overruled by Railroad v. Allen, on the authority of Thomas v. Quartermaine (the court apparently not having seen the later case of Smith v. Baker decided the preceding year). In the Supreme Court of the United States no case has been decided where there has been both a knowledge of the defect and a complaint of it, but the general tendency of authority is in favor of the position taken by the Massachusetts court. However, in Railroad v. Archibald, White, J., says: “Where an employee receives for use a defective appliance, and with knowledge of the defect continues to use it without notice to his employer, he cannot recover for an injury from the defective appliance thus voluntarily and negligently used."

Upon one point there has been considerable difference of opinion in the American authorities. Where the statute has imposed upon a master the duty of taking some particular precaution to protect his servant, it has been decided, in Baddeley v. Lord Granville, that the servant, by continuing in the employment with the knowledge that the statutory protection was not afforded, did not thereby consent to its breach. As was said by Lord Bramwell, the most ardent champion of the strict application of the maxim volenti non fit injuria, in the case of Britton v. Great Western Cotton Co.: 6 "In such case the plaintiff is not placed in the dilemma which arose when the action is for breach of a duty at common law; that dilemma is this, either the danger was obvious or it was not. If obvious, the servant must have known it as well as the employer (he would thereby be barred by the maxim); if it was not obvious, there was no negligence in the employer. Here the duty is statutory. If the deceased dispensed with the performance of it, knowing the duty and knowing the danger, I think he would be volens, but not otherwise.” Whether the servant, even, knowing of the statute creating the duty, can expressly agree to dispense with its performance, would seem to depend upon whether a penalty has been imposed upon its breach. Such a penalty would indicate that the statute was not intended to confer a merely personal privilege and benefit upon the servant which he could if he chose waive by express agreement to do so, but was designed to impose a rule of conduct in which the state has an interest and the breach of which it regards as an offense against itself. The very purpose


99 Ala. 374 (1892). 8 The italics are the writer's. 5 L. R. 7 Exch. 130; 41 L. J. Exch. 99.

? 170 U. S. 665.
4 19 Q. B. D. 423.

of imposing the penalty is to enable the state to enforce by penal action compliance with the statute; the servant's economic inferiority and dependence preventing his right of suit from being an efficient guarantee of its enforcement. In Griffith v. Dudley 1 it had been held that a servant may by express contract waive the benefit of the Employers' Liability Act. That act, however, was intended merely to remove from the servant certain disabilities under which at common law he labored, and he might therefore if he please consent to waive its benefit. In Kinsley v. Pratt? it was held that an employee by entering a factory in which the owner had failed to furnish the protection prescribed by the Factory Acts of 1886, assumed the risk of such lack of protection if she knew that no protection was in fact given.3

In Narramore v. R. R. Co., 4 Taft, J., holds that mere knowledge on the part of the employee that the company is violating the statute, and his continuance in the service thereafter without complaint, does not amount to an assumption of the risk such as will bar recovery. He says the only ground for passing such a statute “is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by a positive law because he had not previously shown himself capable of protecting himself by contract, and it would entirely defeat this purpose to permit the servant to contract the master out of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute." He was of the opinion therefore that even an express consent to waive the performance of the act would be invalid, the statute being imposed for the protection of the servant and in the interest of the public, and enforceable by criminal prosecution. A fortiori, no waiver will be implied from mere continuance in service with knowledge of its breach.5


9 Q. B. D. 357

2 148 N. Y. 372. 3 The case was decided largely on the authority of O'Maley v. Gas Light Co., 158 Mass. 135, a case decided not under an act providing for specific precautions and imposing a penalty for their violation, but under the Massachusetts Employers' Liability Act.


C. C. A. 499. 5 Compare the language used by Wills, J., in Baddeley v. Granville: “As to the result of past breaches of the obligation, people may come to what agreements they like, but not as to future breaches, of which there ought to be no encouragement given to the making of an agreement between A and B, that B shall be at liberty to break the law which has been passed for the protection of A.”


The argument of Taft, J., would seem to expose conclusively the fallacy of the position taken by Bartlett, J., in Knisley v. Pratt, that "while the statute contemplates the protection of a certain class of laborers it does not deprive them of their free agency and the right to manage their own affairs." As he says, it is because their economic inferiority deprives them of freedom to contract that the legislature deems it wise to interfere for their protection. Such economic inferiority would equally force them to contract to exempt the master, just as it prevented them from contracting to force the master to secure them protection.

However, as Taft, J., points out, a servant may be debarred from recovering for injury received from the breach of a statutory duty on his master's part by his own contributory negligence. A servant who continues to work, knowing that a statutory protection has been omitted, while he does not waive the liability for the violation of the statute, is bound to use care commensurate with the added risk to avoid the injurious consequences of such a breach of the statute.2

In many cases the plaintiff, who was not in the defendant's employment, but who was working on the defendant's premises in the performance of his employment with another, either an independent contractor with such defendant, as in Woodley v. R. R., 3 Stevens v. Gas Co., 4 Wagner v. Elevated R. R., or Membery v. R. R., or a shipper of goods, as in Miner v. R. R.,' or a railroad company which had trackage rights over the defendant's lines, as in Wood v. Lock, has been held to be barred by his knowledge of the danger from recovering for injuries received from the dangerously defective condition of the premises. At first glance it would seem that the servant did not encounter the risk voluntarily, but was forced to do so in the performance of a duty which he owed to his master; and that he had a right, under the recent decisions in trade and labor cases, to work for his master, with which the defendant could not directly or indirectly interfere, by persuading his master to discharge him, or by rendering the service so dangerous that he would be forced

1 See Monteith v. Kokomoko Co., 159 Ind. 149, following Narramore v. Co. and the cases cited in the latter case.

2 Such are the cases of McCarthy v. Foster, 156 Mass. 511, Keenan v. Electric Light Co., 159 Mass. 376, Krause v. R. R., 53 Oh. St. 43, Schlemmer v. R. R., 207 Pa. St. 198, often cited as supporting the decision of Knisley v. Pratt, supra. 3 L. R. 2 Exch. 384.

4 73 N. H. 159.

6 188 Mass. 437 (1905). 6 54 App. Cas. 179.

Mass. 398.

147 Mass. 604.



to abandon it. And that therefore the relation between the defendant and plaintiff was not one which was wholly voluntary on either side, or which the plaintiff could be said to have freely entered into. However, it is to be noted that the plaintiff's right upon the premises is dependent upon his employer's relation to the defendant, as in Bowe v. Hunking. If his employer should choose to engage to do work upon a building patently defective, or if he should choose to contract to do repair or construction work upon a railway, as in Woodley v. Ry., while the ordinary operations of the line were going on, the defendant would owe no duty to such employer save not to enhance the open and manifest dangers of the job by some additional fault of omission or commission. So the servant of a railroad which leases rights over tracks patently defective has no right to expect that the lessor line shall afford him better protection than it does to its own servants. His employing company has entered into an agreement whereby its business shall be conducted upon the defendant's tracks under like conditions as the defendant conducts its own traffic. So much but no more could the plaintiff's employer have asked; so much and no more can the plaintiff himself ask. The defendant's duty to him is no greater than the duty to his employer. In Miner v. R. R., however, the question is somewhat more difficult. In that case the plaintiff's employer was a shipper. He was sent to obtain from the railway goods which had been consigned to his employer. His employer, and so he, had the right therefore to find the premises safe for the unloading of goods, and so, had there been merely some defect creating a slight danger in the approaches, it would seem that the plaintiff's employer would have had the right to encounter it in order to obtain his goods, and so that the plaintiff might equally encounter it without assuming the risk thereto. However, the facts show that the defendant's only negligence was in affording the plaintiff a place to unload the car, which was dangerous by reason of its proximity to the rails, whereby the plaintiff's horse was frightened. And it appeared that the plaintiff might, at the cost of some personal inconvenience and trouble, have caused the car to be shifted to a point at which it might have been safely unloaded. If he chose to encounter the risk rather than undergo a slight inconvenience and take a little trouble, it cannot be said that he


135 Mass. 380. 2 As, had the defect been open and notorious, would have been the case of Stevens v. Gas Co.

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