VOLENTI NON FIT INJURIA. 469 extent of the risk and danger therefrom.^ (4) The fact that "the servant undertakes the work unwiHingly, under fear of discharge, or by order of his superior officer, will not prevent the application of the defence.^ (5) Where a servant employed on certain duties undertakes others outside of his own accord, or by order of his master, with knowledge of the danger, he cannot recover, provided he is not misled into a failure to appreciate the extent of the risk by his master's order.^ The requisites, as thus laid down, will be seen to be exactly the same as the defence of Volenti^ as finally formulated in the English cases.* In most of the States outside of Massachusetts much confusion has arisen^ because of the indiscriminate use of the term "con- tributory negligence " in these branches of cases. The courts seem to hold that the test of whether the servant assumed the risk of a known defect is whether he was contributorily negligent in working at it, — whether he was using due care in so working. 1 Lawless v. Conn. River R. R., 136 Mass. 3 (1883) ; Taylor v. Carew Mfg. Co., 140 Mass. 151 (1885); Ferren v. C. C. R. R., 143 Mass. 197 (1887); Keenan t'. Edison Electric Co., 159 Mass. 382 (1893) j Daigle v. Lawrence Mfg. Co., 159 Mass. 379. 2 Haley v. Case, 142 Mass. 322 (1886) ; Lynch z/. Sagamore Mfg. Co., 143 Mass. 210 (1887) ;■ Learyz;. B. & M. R. R., 139 Mass. 584 (1885) ; Westcott v. N. Y. & N. E. R. R., 153 Mass. 461 (1891); R. R. Co. v. Fort, 17 Wall. 557 •(1873). Note that a promise by the master to repair the defect in machinery upon which plaintiff continues to work with knowledge may, if the plaintiff relies upon, be taken into consideration by the jury in determining whether the risk is assumed. Counsel v. Hall, 148 Mass. 470 {1880). Cf. Lewis V. N. Y. & N. E. R. R., 153 Mass. 76 (1891) ; and Clark v. Holmes, 7 H. & N. 937 (1862) ; Buswell on Personal Injuries, § 212, and note in Harvard Law Re- view, V. 37. The true reason would seem to be that the master is debarred from setting up the defence because his own action has led to the alleged assumption by the servant. 8 Mellor V. Merchants Mfg. Co., 150 Mass. 362; Buswell on Personal Injuries, § 210.
- It would thus seem that the Massachusetts case of O'Maley v. Boston Gaslight
Co., 158 Mass. 135 (1S93), which held (seemingly contra to English cases), that the Employee's Liability Act did not do away with the defence of employee's risk, is of little practical effect. 5 Cf. Buswell on Personal Injuries, §§ 207, 208, 330 ; Sherman and Redfield on negli- gence, § 20S; Hough V. R. R., 100 U. S. 217 (1878) ; Kane v. Northern Central R. R., 128 U. S. 94 (1888) ; all taking the view that these cases are merely examples of con- tributory negligence. The Massachusetts cases have occasionally wobbled, and treated the cases purely from the point of due care in the plaintiff. See Probert v. Phipps, 149 Mass. 261 ( 1889) ; Lothrop v. Fitchburg R. R., 150 Mass. 429 (1890) ; Westcott v. N. Y. & N.E. R. R., 153 Mass. 461 (1891) ; Roodw. Lawrence Mfg. Co., 155 Mass. 293 (1892); Henry z/. King Philip Mills, 155 Mass. 363. But for explanation of the true importance of the distinction between the two defences, see Taylor v. Carew Mfg. Co., 143 Mass. 472 ; 140 Mass. loi ; Lawless n. Conn. River R. R., 136 Mass. 3 (1883); Huddleson v. Machine Shop, io6 Mass. 286 (187 1) ; Hall v. Chenery, 159 Mass. 270 (1893).
