
    WILLIAM H. DUNKERLEY, Jr., v. WEBENDORFER MACHINE COMPANY.
    Argued February 24, 1904
    Decided June 13, 1904.
    1. The willingness of a servant to assume the risk of obvious dangers is not shown by the fact that he knew of the danger, in a case where the servant has made complaint, received a promise of repair and continued work in reliance on the promise.
    2. Dowd v. Erie Railroad Co., 41 Vroom 451, followed.
    In tort. On rule to show cause.
    Before Gummeee, Ci-iiee Justice, and Justices Dixon, Garrison and Swayze.
    For the plaintiff, James G...Blauvelt.
    
    For the defendant, John B. Humphreys.
    
   Tlic opinion of the court was delivered by

Swayze, J.

Tlie plaintiff was injured by the bursting of a rapidly revolving emery wheel, while he was grinding-spindles. The defect complained of was in the centres that held the spindles, which were so worn that they permitted a vibration, which caused the bursting of the wheel. The defect was known to the plaintiff, who made complaint to Marston, the superintendent. Marston told the plaintiff that “he was having a new pair of centres made and he would put them in at the first opportunity.”

The judge charged that the plaintiff perceived the danger, and that, if that were all he could not recover; that if the jury believed the evidence as to Marston’s promise, then the defendant took the risk of that danger and relieved the plaintiff from the assumption of danger, subject to this— that he was bound to exercise reasonable care and prudence for his own safety.

The charge was in accordance with the legal rule approved by this court in Dowd v. Erie Railroad Co., 41 Vroom 451. The opinion in that case was filed so recently before the argument of the present case that it could hardly have been known to counsel. We have examined the able and elaborate argument in the present case, but fail to find any suggestion or authority therein which leads us to change the view expressed in the Dowd case.

The difficulty with which the defendant contends is that there is negligence on its part, in the first instance, in failing to exercise reasonable care about the machine. Eor this negligence the defendant is liable unless'it exculpates itself. It only exculpates itself when it shows that the plaintiff assumed the risk. In some cases the assumption of risk is shown by the fact of accepting employment; the mere acceptance of the employment evinces a willingness to assume the ordinary risks of that employment, as a sailor assumes the risk of perils of the sea. In other cases it is shown by the servant continuing at work, without complaint, where a new danger arises which is obvious or discoverable by the exercise of ordinary care; and, although the servant does not assume the risk of the master’s negligence, yet if, with knowledge of that negligence, he continues to work without complaint, the master is exculpated. The master is not exculpated, however, unless the willingness of the servant to incur the risk is shown or reasonably inferred from the circumstances of the case. Such willingness is not shown, nor is it reasonably inferred from knowledge of the danger by the servant, where the other circumstances negative such inference. The circumstances that the servant complains, receives a promise of repair and continues to work in reliance upon the promise, negative the inference of willingness on his part to exempt the master from liability. By making the promise, the master relieves the servant from the assumption of risk and remains liable for his negligence, notwithstanding the servant’s knowledge. This view of the law is borne out by the authorities-in other jurisdictions. Clarke v. Holmes, 7 Hurlst. & N. 937; Holmes v. Worthington, 2 Fost. & F. 533; Hough v. Texas and Pacific Railroad Co., 100 U. S. 213; Northern Pacific Railroad Co. v. Babcock, 154 Id. 190; Swift v. O’Neill, 187 Ill. 337; 58 N. E. Rep. 416; Indianapolis and St. Louis Street Railway Co. v. Watson, 114 Ind. 20; Rogers v. Leyden, 127 Id. 50; 26 N. E. Rep. 210; Lyttle v. Chicago, &c., Railroad Co., 84 Mich. 289; 47 N. W. Rep. 571; Greene v. Minneapolis and St. Louis Railway Co., 31 Minn. 248; Rothenberger v. Northwestern Milling Co., 57 Id. 461; 59 N. W. Rep. 531; Patterson v. Pittsburg, &c., Railroad Co., 76 Pa. St. 389; Wust v. Erie City Iron Works, 149 Id. 263; 24 Atl. Rep. 291.

In Massachusetts the courts hold that in such eases it is a question for the jury whether the servant has assumed the risk, and that the promise is a circumstance to be considered -by the jury. Counsell v. Hall, 145 Mass. 468, in which Justice Holmes says that no case has gone the length of deciding that the promise -entitles the servant to- recover as a matter of law.

The view which we take does not rest the right of recovery upon the promise, but upon the master’s negligence, and the fact that the application of the principle expressed in the maxim volenti non fit injuria is negatived by the servant’s reliance upon the promise.

Talcing the charge as a whole, it correctly stated the law upon this branch of the case.

The defendant insists that the evidence establishes contributory negligence. Upon that subject the judge charged that if the danger, was so great that a reasonable man would not work on the machine, then the plaintiff could not throw the responsibility upon the company. The charge was clearly right. It is also clear that the question of the imminence of the danger was for the jury. Although the defect in the machine was obvious, it was a fair question whether the risk of an accident was so imminent that no reasonable man would have continued to work. The evidence shows that the superintendent of the defendant and the plaintiff thought the danger was not so imminent that the work should be stopped.

The question whether the plaintiff’s method of operating the machine and his position while at ivork established contributory negligence was also a jury question.

We find no error in the rulings on evidence.

A centre similar to the centre "the plaintiff worked on was produced, and he was asked to compare the size of the hole with the size of the hole in the centre on which he worked. He did it by testing with a spindle which had been sold to ‘him as 'being of the same size he was using in the machine. We think this was permissible.

The testimony of G-arlick as to the condition of the centres ■five or six weeks before the accident was properly excluded. It was clearly too remote.

The evidence of MeGeachie as to the conversation with Marston, the superintendent, was admissible. It tended to corroborate the plaintiff’s testimony that Marston told him he was having a pair of new centres made.

We do not think the verdict was against the weight of the ■evidence.

The rule must be discharged.  