by the defendant, a cotton-spinner at Manchester. It was the plaintiff's duty to oil the machinery in the defendant's cottou factory. The mill-gearing was fenced when the plaintiff entered the service by an iron guard, which had been broken about a year before the accident mentioned below, and had not been mended again, although the plaintiff had called the manager's attention to it, and he had promised it should be repaired, and the defendant himself had looked at it, and had spoken about having it mended. While engaged in oiling the machinery the plaintiff's arm was caught by the machine and torn off.

The action was brought to recover compensation for the injury. The plea alleged that the plaintiff was a servant of the defendant, and knew that the mill-gearing was unfenced, and that the injury arose by reason of the plaintiff's own negligence. The jury negatived any negligence on the part of the plaintiff, and found a verdict for him, and that the injury was brought about by the want of proper caution on the part of the defendant.

T. Jones, for the appellant, the defendant below.—The plaintiff is not entitled to recover. He engaged in the service of the defendant voluntarily, and having accepted the risks incidental to the employment cannot sue his master for the injury he has met with in his service. Seymour vs. Maddox, 16 Q. B. Rep. 326; S. C. 20 Law J. Rep. (N. S.) Q. B. 327. The conversation with the manager about the want of the fence does not alter the legal position of the parties. Dynen vs. Leach, 6 Hurl. & N. 349; 26 Law J. Rep. (N. S.) Exch. 221; Alsop vs. Yates, 2 Hurl. & N. 768; S. C. 27 Law J. Rep. (N. S.) Exch. 156. Had the plaintiff felt that he could not do the work safely for want of the fence he ought to have left the service and not continued in it. Skipp vs. The Eastern Counties Railway Company, 9 Exch. Rep. 223; S. C. 23 Law J. Rep. (N. S.) Exch. 23. The effect of the conversation cannot amount to more than this, that the plaintiff contracted to remain in the service, and continued to incur the risk of the unfenced machinery until the fence should be replaced. The plaintiff, in fact, contributed to the injury himself, and therefore cannot

His

recover. He knew of the danger, and yet incurred the risk. rashness may be called contributing negligence in one sense. At any rate, it is negligence sufficient to bar the action, notwithstanding the finding of the jury that the plaintiff was not guilty of negligence. Caswell v. Worth, 5 El. & B. 849, S. C. 25 Law J. Rep. (N. S.) Q. B. 121, and Cowley vs. The Mayor &c., of Sunderland, 6 Hurl. & N. 565, S. C. 30 Law J. Rep. (N. S.) Exch. 127. The Factory Acts, which require masters in manufactories to fence machinery for the protection of women and children, impose no such duty in respect of men of full age. Coe vs. Platt, 6 Exch. Rep. 752, S. C. 20 Law J. Rep. (N. S.) Exch. 407, was decided before the statute 19 & 20 Vict. c. 38 was passed. Suppose in a colliery there had been some omission of a precaution ordered by statute for the benefit of apprentices, and a tremendous colliery accident had happened, and three hundred men killed, but no apprentice hurt, could it be said that the representatives of each of those men who had engaged to take the risk of accidents in consideration of their wages could sue the master because the statutable duty as to apprentices had not been performed? Paterson v. Wallace, 1 Macq. 748, and Barton Hill Coal Company vs. Reid, 3 Id. 288, do not apply.

Bliss, for the respondent, the plaintiff below.-The action will lie. It is material that when the plaintiff entered the service the machinery was duly fenced. The contract, in effect, before the accident, was that the plaintiff would oil the machinery, and that the defendant would keep it properly fenced. The plaintiff complained to the manager, which is the same as complaining to the defendant. Senior vs. Ward, 28 Law J. Rep. (N. S.) Q. B. 139. He continued in the service under the expectation that it would be speedily repaired. This is very different from the case of a man who originally engages to work at dangerous unfenced machinery. The plaintiff never engaged to take upon himself the risk of unfenced machinery. The plaintiff's knowledge of the danger cannot affect his liability unless he consented to incur the risk. Knowledge is not proof of negligence, only one ingredient in the proof. Clayards vs. Dethick, 12 Q. B. Rep. 439; Thompson vs. The North-Eastern Rail

way Company, 30 Law J. Rep. (N. S.) Q. B. 67; Roberts vs. Smith. 2 Hurl. & N. 213, S. C. 26 Law J. Rep. (N. S.) Exch. 319; Mellors vs. Shaw, 30 Law J. Rep. (N. S.) Q. B. 333; Ashworth vs. Stanwix, Ibid. 183; Priestly vs. Fowler, 3 Mee. & W. 1, S. C. 7 Law J. Rep. (N. S.) Exch. 42; Williams vs. Clough, 3 H. L. Cas. 258. A duty was imposed on the defendant to fence this machinery. In consequence of the defendant's neglect of this legal duty an injury has happened to the plaintiff. For that the defendant ought to be responsible. Though the main object of the Factory Acts was to protect women and children, the duty they impose on the manufacturer to put up a guard is general. The statute 19 & 20 Vict. c. 38, only modifies the application of the statute 7 & 8 Vict. c. 15, and does not affect the applicability of the cases decided on it. Coe vs. Platt and Caswell vs. Worth show that the same right of action is given to adults as to women and children if any injury arises from unfenced machinery. When a duty is imposed by statute, and an injury arises to another from a breach of that duty, the person injured is entitled to recover. Crouch vs. Steel, 3 El. & B. 402; S. C. 23 Law J. Rep. (N. S.) Q. B. 121.

(He was stopped by the Court.)

T. Jones replied.

At the close of the argument

The Court stated that judgment would be given for the plaintiff, but took time to consider how it should be expressed.

Judgment was now delivered by

Cur. adv. vult.

COCKBURN, C. J.-In this case I am of opinion that the deci sion of the Court of Exchequer should be upheld; though not precisely on the grounds on which that decision appears to have proceeded. I think the question, whether any liability in the defendant arises under the statutes 7 & 8 Vict c. 15 and 19 & 20 Vict. c. 38, is open to considerable doubt, owing to the plaintiff being an adult. It appears to me, however, unnecessary to decide this question, being clearly of opinion that, independently of any statutory duty or obligation, there was negligence in the defendant in not

fencing the machinery on which the plaintiff was employed; and although the declaration in this case is based on the alleged statutory duty of the defendant to fence the machinery, the leave to move was reserved on the question of negligence, and there is full power to amend the pleadings, and we can, therefore, so mould the declaration as to make it applicable to the grounds on which we think the case should be decided. I consider the doctrine laid down by the House of Lords in the case of the Barton's Hill Coal Company vs. Reid, as the law of Scotland with reference to the duty of a master, as applicable to the law of England also; namely, that where a servant is employed on machinery, from the use of which danger may arise, it is the duty of the master to take due care, and to use all reasonable means to guard against and prevent any defects, from which increased and unnecessary danger may arise. No doubt when a servant enters on an employment from its nature necessarily hazardous, he accepts the service subject to the risks incidental to it, or, if he thinks proper to accept an employment on machinery defective from its construction or from the want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger, which both the contracting parties contemplated as incidental to the employment. The rule I am laying down goes only to this, that the danger contemplated on entering into the contract shall not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from the terms of the contract or the nature of the employment, the servant had a right to expect that it would be kept. In the present case, at the time the plaintiff entered on the employment, the machinery was properly fenced; on its ceasing to be so, the manager of the defendant on the remonstrance of the plaintiff, promised, in the presence of the defendant, the master, that the defect should be made good. It must be taken, therefore, that at the time the contract between the plaintiff and the defendant was entered into, it was contemplated by the parties that the machinery should be fenced. It follows that through the negligence of the master in omitting to keep the

machinery fenced the servant has been exposed to danger to which he ought not to have been exposed; and the injury of which he complains having thus arisen, the defendant is justly and properly liable. It was indeed strongly urged upon us, on the part of the defendant, that as the plaintiff upon becoming aware that the machinery was no longer properly fenced, instead of refusing to go on as he might have done, continued to perform his service with a knowledge of the increased risk to which he was exposed, he must be taken to have voluntarily incurred the danger, and is therefore in the same position as if he had originally accepted the service as one to be performed on unfenced machinery. I am, however, of opinion that there is a sound distinction between the case of a servant, who knowingly enters into a contract to work on defective machinery, and that of one, who on a temporary defect arising, is induced by the master, after the defect has been brought to the knowledge of the latter, to continue to perform his service under the promise that the defect shall be remedied. In the latter case it seems to me that the servant by no means waives the right to hold the master responsible for any injury which may arise to him from the omission of the master to fulfil his obligation. No doubt a defect thus arising in machinery may be such that no man of ordinary prudence would run the hazard of working on it. If a jury should find that the party complaining had materially contributed to the injury by his own rashness, the action could not be maintained, inasmuch as it is a wellestablished rule that a plaintiff who has materially contributed to his own injury by his own negligence cannot recover, although he may show negligence in the opposite party. But the question whether the injury of which the plaintiff complains is to be ascribed wholly to the negligence of the defendant, or whether the plaintiff has had any share in bringing it about, is one only for the jury. In the present case the jury have determined this question in favor of the plaintiff, and we are bound by their decision. It is, indeed, put to us that, notwithstanding this finding of the jury, the knowledge of the plaintiff that the machinery was unfenced is, in point of law, sufficient to prevent the plaintiff from recovering. But, I