these rules is the so-called doctrine of "assumed risk." There is no practical distinction in principle between this doctrine and that involved in the Latin maxim, but in this country the principle involved is more frequently discussed under the former name than the latter. The principle maybe stated thus: A servant, by entering upon and continuing in a given employment, by the fact of such continuance is presumed to have voluntarily assumed the risk of personal injuries he may receive, by reason of the ordinary dangers inherent in the employment, by reason of any defect not necessarily inherent in the employment which he knew and understood as a danger before injury received, whether such defect was occasioned by his master's failure to perform his common-law duty of furnishing his men with a safe place to work or not. This doctrine is one of the commonest and most successful defenses interposed by employers in this country in actions brought against them by their injured employés. In most of the American states the question whether the servant assumed the risks of personal injury from defective appliances has been treated as a matter of law for the judge to determine, and the continuance in employment with knowledge and comprehension of defects from which personal injuries are afterward received has been ordinarily held sufficient to authorize and require the trial judge to take the case from the jury and dismiss the plaintiff's action. Under the ordinary American rule continuance at his work by the employé with knowledge of a dangerous defect in machinery or in his place of employment can mean but one thing—a conscious, willing assent to the continuance of the danger to his life or safety, and a voluntary assumption of all chances of personal injury from it, absolving the master from all responsibility for such injuries, even if this defect exists by the master's carelessness or indifference to the employé's safety. Even if the workman protests against the exposure of his life by such defect, if he keeps at work he assumes the risk he protests himself unwilling to assume. A somewhat different rule is adopted in England, where the question whether the workman voluntarily took his chances of being injured is for the jury to say from the circumstances.[1]
- ↑ Smith vs. Baker, Ap. Cas. 1891, p. 325.
