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do so he may be held responsible. In doing so he may save his employee a severe injury.

§ 401. Exceptional dangers. - The owner is also considered guilty of willful negligence, for which he would be held responsible in case an injury should result to the employee, when he insists upon the latter entering exceptionally dangerous places, or assuming risks which are not necessarily incident to the duties of the service, which he has contracted to discharge. For while the employee has

a right to decline the employment on account of the dangers incident to the service, and although he voluntarily subjected himself to the risks accompanying the business when he entered the employment,3 it is none the less unreasonable to compel him to subject himself to other dangers, which he had no reason to expect and which are not within the employment for which he had contracted, simply because he prefers to assume the exceptional dangers, rather than incur the displeasure of his employer, and run the lesser risk of losing his employment. It is not every injury, however, that is received beyond the general scope of the employee's duties, for which the owner can be held respon

1 Baxter v. Roberts, 44 Cal. 187; Smith v. Oxford Iron Co., 2 Mor. Min. Rep. 208; Parkhurst v. Johnson, 50 Mich. 70. Mere knowledge that mine is not timbered will not defeat recovery. Kelly v. Wilson, 21 Ill. App. 141. For a case— an injury in a lime kiln-where employer was held liable for not instructing an inexperienced employee how to undermine the base of a bank, see Parkhurst v. Johnson, 50 Mich 70; 45 Amer. Rep. 28.

2 McGowen v. LaPlata Min. & Smelting Co., 3 McCrary, 393; Elbridge v. Atlas Co., 55 Hun, 309; 28 N. Y. S. R. 501.

8 Trihay v. Brooklyn Lead Min. Co., 4 Utah, 468. The employee, however, does not assume questionable risks, apparent only to experts in the business. Eddy v. Aurora Iron Min. Co., 46 N. W. Rep. 17.

4 Trihay v. Brooklyn Lead Min. Co., 4 Utah, 468; 11 Pac. Rep. 612. But see Sweney v. Berlin Co., 101 N. Y. 500; Williams v. Churchill, 137 Mass. 243.

sible, for contributory negligence in the employee will always decrease the owner's responsibility, and contributory negligence is very often shown by proof of the employee's waiver of his right to refuse to obey the command of the owner.1 But the employee is frequently influenced by his employer to believe that he has not sufficient grounds to refuse to obey his commands, and as it would be unjust in such cases to hold the employee alone responsible for an injury received in obeying the command, the owner is generally held responsible for an injury sustained by an employee in following up the owner's instructions to do an act which is not within the general scope of his duties, incident to the employment.2

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§ 402. Acts resulting in death. "Lord Campbell's Act" has been substantially re-enacted in nearly all of the United States. Under these different statutes only actual and not exemplary damages can be recovered, and, unless there is a special statutory regulation on the subject, the physical and mental suffering of the deceased, and the sorrow, loss of society and grief of the parties entitled to the benefit of the statute, cannot be considered by the court or jury in estimating the amount of damages; and an instruction predicated on such a proposition would be erroneous.5 The right to maintain the action

1 McDonald v. Rock Hill Iron & Coal Min. Co., 135 Pa. St. 1; 47 Phil. Legal Int. 334; 19 Atl. Rep. 797.

2 Heavey v. Hudson River Water &c. Co., 32 N. Y. S. R. 565.

3 Statutes different States; Stat. 9 & 10 Vict., Ch. 93, Secs. 1 and 2. 4 Cooley on Torts, pp. 318 and 319; Myers v. San Francisco, 42 Cal. 215. In the absence of any actual damage the minimum statutory damages are recoverable. For construction of Missouri statute giving damages for death in a mine, see Hammon v. Coal Co., 156 Mo. 232; Adams v. Min. Co., 85 Mo. App. 485.

5 The basis of the calculation should be something capable of pecuniary measurement. Rockford Co. v. Delaney, 82 Ill. 198; St. Louis

is conferred generally by these statutes upon the wife, next of kin or personal representatives of deceased, and damages are recoverable, in all cases for their benefit, whenever the injured party himself could have recovered damages if he had survived the effects of the injuries.1 But whether the injuries result in the death of the injured party or not, if the deceased could not have recovered damages if he had lived, his personal representative after his death would not be entitled to recover, and any negligence on the part of the deceased can be set up as a defense to such an action on the part of the party charged with causing the injury. Nor could the personal representative maintain the action, after the death of the injured party, if the deceased had himself obtained satisfaction for the injury prior to his death, for whether the

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&c. Co. v. Freeman, 36 Ark. 41. But see Frick v. St. Louis &c. Co., 75 Mo. 542.

1 Stewart v. Louisville &c. Co., 4 So. Rep. 373; Walters v. Chicago &c. Co., 36 Iowa, 458; Atlantic &c. Co. v. Venable, 65 Georgia, 55; Hartford &c. Co. v. Andrews, 36 Conn. 212. The English statute gave the action to the wife, husband, parent or child; not to deceased's estate, and his creditors had no recourse to reach this fund. Cooley on Torts, and citations, p. 316.

2 Stat. 9 and 10 Vict., Ch. 93, Secs. 1 and 2; Statutes different States; Ho lan v. Daly, 106 Ill. 131; Ind. &c. Co. v. Stout, 53 Ind. 143; Meede v. Holbrook, 20 Ohio, 137.

3 Bartonshill Coal Co. v. Reed, 3 Macq. H. L. Cas. 266; Senior v. Ward, 1 El. & El. 385,- generally followed in U. S.-Cordell v. N. Y. &c. Co., 75 N. Y. 330; Corcoran v. Boston &c. Co., 133 Mass. 507; Ind. &c. Co. v. Greene, 106 Ind. 279. In some States the negligence of a fellow-servant will prevent a recovery. Georgia, 839; Philo v. Ill. &c. Co., 33 contributory negligence is no defense. 174; Merrill v. Easton &c. Co., 139 Mass. 252. And see Besenecker v. Sale, 8 Mo. App. 211.

McDonald v. Eagle &c. Co., 68 Iowa, 47. But in some States Nashville &c. v. Smith, 6 Heisk.

4 Read v. Great Eastern Co. (L. R.), 3 Q. B. 555; Senior v. Ward, supra; Conner's Ad. v. Paul, 12 Bush, 144; Holton v. Daly, 106 Ill. 131; Boone on Cor. 85; Cooley on Torts, section 264, p. 309. But in any case,

satisfaction was obtained by legal proceedings or voluntary settlement, or compromise, the wrongful act and all its consequences would be canceled and the liability of the wrong-doer forever ended.

§ 403. Contributory negligence in employee. — It is a well-settled rule of law that an employee cannot hold his employer responsible for damages incurred, resulting from the peculiar service in which he has engaged, where he had full knowledge of the circumstances on entering the service, unless the owner has been guilty of some negligent act which really occasioned the injury.2 The employee voluntarily takes upon himself the risk and hazard of the business, and if he receives an injury through his own culpableness or negligence, he alone must bear the injury. If an existing peril, not necessarily incident to his employment, comes to the knowledge of the mine employee,

after a compromise by the injured party, before an action will lie, there must have been a return, or tender of the consideration paid. Billings v. Aspen &c. Co., 52 Fed Rep. 250; Ock v. M., K. & T. Ry. Co., 130 Mo. 27; Carson v. Smith, 133 Mo. 606, at p. 614.

1 He must exercise ordinary care to avoid risks, and if he fails to do so, cannot recover for injury. Griffith v. Gidlow, 10 Mor. Min. Rep. 639; Canter v. Colorado Min. Co., 15 Mor. Min. Rep. 559.

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2 Such would be the selection of unsafe instrumentalities. Co. v. Kraft, 10 Mor. Min. Rep. 16; Ardesco Oil Co. v. Gilson, 10 Mor. Min. Rep. 669.

3 Lehigh Valley Co. v. Jones, 10 Mor. Min. Rep. 30; Senior v. Ward, 10 Id. 646. Where there are different modes of performing the same duty, and the servant selects the more dangerous, he alone is responsible for his acts if an injury results from his selection, and as he contributes to the injury, in failing to exercise ordinary care in selecting the least dangerous method of performing the duty, the employer is not, in such case, responsible for such an injury. Lake Sup. Co. v. Erickson, 10 Mor. Min. Rep. 39. The use of one's hand, instead of a stick, to cast machinery, will bar a recovery. Wetjen v. White Lead Co., 5 Mo. App. 597. Taking advice of others is not contributory negligence. Lake Superior Co. v. Erickson, supra.

it is his duty to bring the same immediately to the knowledge of the mine owner or operator,1 and the mine owner could not be held responsible for an injury which resulted to the employee before he had any knowledge of the existing peril, for the failure of the employee to bring the knowledge home to the mine owner would very properly be held to constitute contributory negligence on his part.2 So in all cases where a mine employee tries to recover damages from his employer for an injury received by reason of the latter's negligence, the burden of proof is upon the employee to show the specific acts which constitute the negligence of the mine owner, both on account of the employee holding the affirmative of the proposition and also because he would have to refute the legal presumption of a proper performance of duty by the mine owner.3 But in order to bar a recovery by an employee for an injury received in the regular course of his employment, the conduct of such employee must really have been negligent, and his negligence must have contributed to the injury in such a way that if he had not been negligent he would not have received the injury in discharging his duties. And in determining whether or not an employee has been guilty of negligence in a given case, regard must be had to the danger to be apprehended, the reasonable probability of incurring it, as well as the natural presumption that he would, in such case, exercise ordinary care and diligence.5

1 Strahlendorf v. Rosenthal, 30 Wis. 674; Baxter v. Roberts, 44 Cal. 187.

2 Cooley on Torts, § 564, and cases cited. McGowan v. LaPlata Co., 10 M. M. R. 59; Parkhurst v. Johnson, 50 Mich. 90.

8 Heath v. Whitebreast C. & M. Co., 65 Iowa, 747.

4 St. Louis Iron & Bolt Co. v. Brennan, 20 Ill. App. 555; Silver

Cord S. & S. Min. Co. v. McDonald (Colo.), 23 Pac. Rep. 346.

5 Stokes v. Saltenstall, 13 Pet. 181; Ingalls v. Bills, 9 Met. (Mass.)

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