Even when the employer assures the workman of the safety of a machine, the risk is still, according to many decisions, the workman’s. The Circuit Court of Shiawassee County, Michigan, refused to award damages to a workman for injuries sustained from a defective machine which he was operating for his employer. The case went to the Supreme Court on a writ of error, and on December 15, 1900, that court affirmed the previous judgment. It had been shown that the plaintiff warned his employer of the danger of the machine, and that the employer gave assurances to the contrary. Nevertheless, in the words of Judge Moon (Moore?), “one cannot continue to operate a machine which he knows is dangerous simply upon the assurance of his employer that it is not, if he has just as much knowledge of the danger arising from the operation of the machine as the principal has [without assuming the risk].” (82 N. W. Reporter, 1797.)
The decision, read by Judge McLennan, in the recent case of Rice _vs._ the Eureka Paper Company (76 App. Div. 336) before the Fourth Appellate Division of New York State, would seem to indicate that the burden of risk is not to be shifted from the workman even when his employer acknowledges a defect in machinery and promises to remedy it. There is some doubt, however, if such a decision, though valid in many States, will stand in the State where it was given; for the Court of Appeals has several times decided that liability follows from an acknowledgment of defective machinery. On the other hand, this highest court of New York State has won the distinction of carrying the doctrine of assumption of risk to an extreme degree. The case of Gabrielson _vs._ Waydell (135 N. Y. 1) involved the question of the liability of the owners of a maritime vessel for injuries suffered by a sailor in their employ. The captain of the vessel had committed a confessedly unprovoked and particularly brutal assault upon the sailor, who had subsequently sued the owner for damages. The court decided that the sailor had no redress; that “the misconduct of the captain was a risk assumed by the seaman, for the consequences of which the owners are not responsible.”
A fact more curious yet to the unlegal mind is the judicial contention, instanced in the previous chapter, that statutory provisions for the safeguarding of machinery may be waived by the workman. Evidently his burden of risk, like the Hindu’s caste, is born with him, and cannot be laid aside or escaped. The case of the E. S. Higgins Carpet Company _vs._ O’Keefe (79 Federal Reporter, 900) is an illustration. Damages for an injury received from an unguarded machine had been given a fifteen-year-old boy in the United States Circuit Court for the Southern District of New York. The United States Circuit Court of Appeals for the Second Circuit, however, reversed the judgment. The plaintiff was a minor, but this fact was held to have no bearing. “We think the circumstance that he was a minor of no importance,” read the decision of Judge Wallace. “The rules which govern actions for negligence in the case of children of tender years do not apply to minors who have attained years of discretion.” The New York factory act required guards for this particular kind of machine. But that, also, was immaterial. “The provisions of the statute ... requiring cogs to be properly guarded, have no application to the case, except as regards the question of the negligence of the defendant. As construed by the highest courts of the State, the statute does not impose any liability upon an employer for injuries received by a minor in his service in consequence of the fault of the employee, or arising from the obvious risks of the service he has undertaken to perform.” To clinch the matter, Judge Wallace cited the then recent case of Graves _vs._ Brewer before the Fourth Appellate Division of New York State, wherein the court held that “the liability of the employer was not changed by reason of the factory act requiring cog-wheels to be covered, because such protection could be waived and was waived by a person accepting employment upon the machine with the cogs in an unguarded condition, as the danger was apparent, and one of the obvious risks of the employment.” The case of Knisley _vs._ Pratt (148 N. Y. 372) before the New York Court of Appeals was decided in the same way, and also the case of White _vs._ Witteman Lithographic Company. In the latter case the plaintiff was a child of fourteen.