S.C. 1901. DOYLE CANDLE COMPANY. St. Katharine Docks Company(1). The point now raised was not raised or considered in The Wellington and Manawatu Railway Company v. McLeod (2); but there the tunnel at the NEW ZEALAND commencement of the employment was in good order, and it was afterwards allowed to fall into disrepair, so that, on the principles now contended for, that case was properly decided. The plaintiff had, on his own evidence, sufficient knowledge to bring himself within the common-law rule. The observations in Beren on Negligence (3) are applicable. It is not necessary that he should know the cause of the danger: it is enough that he knew of the risk. Both at common law and under the statute the case should have been withdrawn from the jury, on the ground that the evidence was only consistent with Volenti non fit injuria; or, at all events, there should be a new trial, on the ground that the findings of the jury were against the weight of evidence. The headnote to the report of Smith v. Baker & Sons (4) is wrong in saying that whenever the question of volenti is raised it must go to the jury: Beven on Negligence(5); Dublin, Wicklow, and Wexford Railway Company v. Slattery(6); Wakelin v. London and South-western Railway Company (7). Stevens v. McKenzie & Sons (8) is a recent case of the application of the maxim as a matter of law. In Smith v. Baker & Sons (4) the law was being applied to the specific facts of that case simply. The case is discussed in Beven on Negligence(9). The American law agrees with what is now contended for: Ibid.(10). The case should have been withdrawn from the jury, on the ground that the evidence was only consistent with contributory negligence. On the language of section 5 of "The Employers' Liability Act Amendment Act, 1891." the jury ought first to have requested the Judge to give a direction as to the damages, and then afterwards to have acted upon it. Findlay, for the plaintiff : The cases show that the company must be held to have known whatever a reasonable expert would have discovered by inspection: Hyman v. Nye(11); Beven's Employers' Liability(12); Webb v. Rennie(13); Murphy v. Phillips(14); Clarke (8) 25 V. L.R. 115. (1) 12 Q.B.D. 493; on app. 13 Q.B.D. 259. (2) 19 N.Z. L.R. 257. (3) 2nd ed. 753. (4) [1891] A.C. 325. (5) 2nd ed. 772. (6) 3 App. Cas. 1155, 1165, 1169. (7) 12 App. Cas. 41, 48. (9) 2nd ed. 776. (10) 2nd ed. 756-57. (13) 4 F. & F. 608, at p. 612. (14) 35 L.T. 477, 479. v. Holmes(1). It must therefore be held to have known of the labyrinth of flues and the collection of gases, and that that was the seat and cause of the whole matter. The plaintiff cannot be presumed to have known all this. He had not the means of knowledge, and could not therefore appreciate the risk to which he was exposed. The findings on issues 2 to 6, read together, mean that the company knew of the dangerous nature of the defect, and that the mere fact that the plaintiff knew of the blowing-out is consistent with his evidence that he did not know the danger. All the cases cited are cases of open and apparent defects and dangers: Griffiths v. The London and St. Katharine Docks Company(2). Proposition (c) put forward on behalf of the defendants no longer holds since Smith v. Baker & Sons (3). Even if a servant enters on the employment with full knowledge of a defect in the plant or system, he is entitled to recover, unless the jury find as a fact that the undertaking of the risk was an implied term of the contract of service. Smith v. Baker & Sons (3) remodelled the law: Law Quarterly Review (July, 1892; article by Mr. Beven) (4); Beven on Employers' Liability(5), citing Medway v. Greenwich Inlaid Linoleum Company (Limited) (6). There is the same obligation at common law as under the Employers' Liability Acts to provide reasonably safe works and appliances: Smith v. Baker & Sons(3), per Lord Watson, at pp. 353, 354, 356, and per Lord Herschell, at p. 362; Encyclopædia of the Laws of England(7), citing Brown v. Accrington Cotton Spinning and Manufacturing Company (Limited) (8) and Smith v. Baker & Sons(3). The attempt to distinguish the system from the machinery is wholly illogical: the machinery is part of the system. Encyclopædia of the Laws of England ubi sup., Bartonshill Coal Company v. McGuire (9), Bartonshill Coal Company v. Reid (10), and Weems v. Mathieson(11) all lay down without any qualification that a master is liable for any defect in his machinery, and were all cited in Smith v. Baker & Sons (3). It is clear that the last case was intended to lay down that a master is liable in such a case unless he can show that the servant expressly undertook the risk. The case is concluded by The Wellington and Manawatu Railway Company S.C. 1901. DOYLE บ. NEW ZEALAND COMPANY. S.C. 1901. DOYLE v. McLeod(1). In order that the maxim Volenti non fit injuria should apply, the danger must be so obvious that the man doing the work can without doubt see what risk he is incurNEW ZEALAND ring: Beven on Employers' Liability(2); Booker v. Higgs(3). V. CANDLE COMPANY. And the jury must find that he appreciated the risk and agreed to accept it: Smith v. Baker & Sons(4); Medway v. Greenwich Inlaid Linoleum Company (Limited) (5). As to the point under section 5 of "The Employers' Liability Act Amendment Act, 1891," there was a full direction to the jury, and what was done was accepted on all sides as a compliance with the Act. If the danger was known it is immaterial that the cause should be known. The plaintiff knew and comprehended the risk. Webb v. Rennie(6) and Murphy v. Phillips(7) were both cases within the admitted exception, where machinery is allowed to go out of repair. The reference in Beven on Employers' Liability(8) to Smith v. Baker & Sons(4) as remodelling the law is in regard to the maxim Volenti non fit injuria. Conceding that it was intended to practically abrogate, except nominally, the maxim Volenti non fit injuria, it cannot be supposed that it was intended to abrogate the whole common-law doctrine in regard to the liability of a master, and the long line of previous authorities. EDWARDS, J.:— Cur, adv. vult. This is an action for damages, brought by the plaintiff, who was employed as a fireman in the service of the defendants. alleging that he has sustained injuries by reason of the defendants having failed to provide efficient machinery and appliances for carrying on the defendants' business, and that their works were constructed in a defective and faulty manner, of which the defendants were aware. The plaintiff also alleges that the defendants failed to provide a sufficient number of men in their factory for the proper conduct of the business thereof. There is an alternative claim alleging that it was an implied term of the contract of hire and service between the plaintiff and the defendants that the defendants would maintain the works in a proper and safe condition, so as not to subject the plaintiff to unnecessary risks, and that the defendants (1) 19 N.Z. L.R. 257, 266, 273. (3) 3 T. L.R. 618. (4) [1891] A.C. 325. (5) 14 T. L.R. 291. (7) 35 L.T. 477. (8) 2nd ed. 25, note (b). S.C. 1901. DOYLE v. failed to comply with this term of the contract. There is a further alternative claim alleging that the plaintiff's injuries resulted from a defect in the ways, works, machinery, or plant used in the business of the defendants, and that such defect NEW ZEALAND arose from and had not been remedied owing to the negligence of the defendants. Under this count the plaintiff claims, under the provisions of "The Employers' Liability Act, 1882," and its amendments, to recover the sum of £500. The defendants, by their statement of defence, put. the plaintiff upon proof of the several allegations contained in the statement of claim. They also allege that if the plaintiff was injured in manner alleged by him, the plaintiff, knowing of the alleged defect, did not give information thereof to the defendants; that the plaintiff's injuries were caused by contributory negligence on his part; and that the plaintiff knew of and agreed to work under the conditions alleged in the statement of claim, and agreed to himself accept the risk of any injury which might happen to him by reason of working under such conditions. At the close of the plaintiff's case counsel for the defendants moved for a nousuit, upon the grounds, as to the common-law counts first, that the alleged defective condition of the furnace was known to the plaintiff at the time of entering upon the employment, and that therefore, by contract, he took the risk of the employment with the furnace in that condition; second, that the plaintiff entered upon the employment with the plant. in a particular condition, and that there was no obligation at common law upon the employers to improve the condition of the machinery; third, that knowledge, though subsequent to entering the employment, is sufficient to disentitle the plaintiff to recover at common law; fourth, that there was evidence that the accident was caused by the contributory negligence of the plaintiff in the management of the furnace. As to the count under "The Employers' Liability Act, 1882," the nonsuit was moved upon the third and fourth grounds relied upon in support of the motion for a nonsuit upon the common-law counts. I refused to nonsuit the plaintiff at the trial, but reserved leave to the defendants to move. At the conclusion of the trial a number of issues were submitted to the jury. These issues, and the findings of the jury, were as follows: : 1. Was there at the time of the plaintiff being injured a CANDLE COMPANY. 694 S.C. 1901. DOYLE defect in the mode of construction of the furnace and flues?Answer: Yes. 2. Did such defect (if any) cause the alleged injury to the NEW ZEALAND plaintiff?-Answer: Yes. v. CANDLE COMPANY. 3. Did the company know of such defect?-Answer: Yes. 4. Did the plaintiff at the time of entering into the service of the company as fireman know of such defect?-Answer: No. 5. Was such defect (if any) not remedied owing to the negligence of the company, or of some person in the service of the company intrusted with the duty of seeing that the plant was in proper condition?-Answer: Yes. 6. Did the plaintiff at the time of entering into the service of the company as fireman know that the furnace was at that time liable to frequently blow out flames?--Answer: Yes. 7. Did the frequency of the outburst of flames increase, from no fault of the plaintiff, after the plaintiff entered into the service of the company as fireman?-Answer: There is not sufficient evidence they did increase. 8. If so, was such increased frequency due to any act or default of the company?-Answer: Yes; if there was an increase it was due to the fault of the company. 9. Did the plaintiff at the time of his entering into the employment of the company as fireman know the risk of injury from the said defect incurred by him?-Answer: No. 10. Did the plaintiff on becoming fireman accept the risk of such injury?-Answer: No. 11. Did the plaintiff subsequently to his becoming fireman know of the risk from the said defect incurred by him?— Answer: No. 12. Did the plaintiff subsequently to his becoming fireman accept such risk?-Answer: No. 13. Was the plaintiff aware that the company or some superior officer knew of the said defect (if any) ?-Answer: Yes. 14. Did the plaintiff within reasonable time after he became fireman give information of such defect (if any) to the company or some superior officer?-Answer: Yes. 15. Was the plaintiff guilty of negligence in performing his duties as fireman at the time of the injury?--Answer: No. 16. If so, was such negligence the proximate cause of the plaintiff's injury ?--Answer: No. 17. Did the company subsequently to the plaintiff's becoming fireman fail to supply the plaintiff with proper assistance |