of such mental capacity and condition as to | Superior Court, Bristol County, for personal make it doubtful whether she was ever of sound injuries sustained by plaintiff while in defendmind, and the witness may have always con- ant's employ, and resulted in a verdict for the sidered her unfit to make a will. plaintiff.

Where a servant is asked by his master to do something which is no part of his risk, and, whilst doing that which is, in fact, a mere goodat-natured act, he receives an injury which he had no cause to expect, he may be entitled to recover damages from his master.

Id. 2d ed. pp. 36, 37; Mansfield v. Baddeley, 34 L. T. N. S. 696; Holmes v. Clarke, 31 L. J.

ON defendant's extion of tort brought in the N. 5. Exch. 356.

NOTE. A volunteer assumes the risks of the employ- An exception to this rule is a passenger volun

Where one voluntarily undertook to perform serv-79 Me. 397. ices for a railroad company, and its agent assented to such performance, and such volunteer had been warned not to walk upon the track, and knew a train was approaching behind, and did not use his eyes or heed the whistle, he cannot recover damages for injuries sustained. Barstow v. Old Colony R. Co. 3 New Eng. Rep. 746, 143 Mass. 532.

One who has no interest in the performance of certain work for a railroad, but volunteers to assist in such work, assumes all risks incident to his position, and cannot recover for injuries caused by the negligence of his fellow servants. Eason v. Sabine & E. T. R. Co. 65 Tex. 577.

Messrs. Morton & Jennings and John | it. Lowell, Jr., for defendant:

The plaintiff took upon himself all risks, and he cannot now complain that he was injured in an employment which was beyond the scope of his duties, but which he voluntarily assumed, whose danger and risk, if there was any, he understood, in which he knew what was to be done, and how and why it was to be done, and chose his own way, method, time and place for doing it. Especially is all this true in view of the further fact that he could have removed the defect by moving the loom which was within the scope of his duties and unattended with danger.

Russell v. Tillotson, 1 New Eng. Rep. 444, 140 Mass. 201: Goodnow v. Walpole Emery Mills, 5 New Eng. Rep. 719, 146 Mass. 261; Ciriack v. Merchants Woolen Co. 5 New Eng. Rep. 728, 146 Mass. 182; Gavett v. Manchester & L. R. Co. 16 Gray, 501; Leary v. Boston & A. R. Co. 139 Mass. 580; Bunker v. Midland R. Co. 47 L. T. N. S. 476; Woodley v. Metropolitan Dist. R. Co. L. R. 2 Exch. Div. 384.

On the afternoon of the accident the belt slipped off again, and the plaintiff saw that it had not been set right. He notified Gillette and went to notify Thacker, but found only O'Gara. O'Gara had no authority over the plaintiff, but told him to take a wrench and move the pulley a little way. The plaintiff knew that the belt would slip off unless the pulley was changed, started to do it, and told Gillette that he was going to see what he could do with it. Gillette said, "All right."

The plaintiff then built a staging, and, at a little before six P. M., was standing facing the belt, about twelve inches from it, looking up at it going round, with his left arm up on the planks, waiting for the machinery to stop, as it did at six, when the belt came off again and caught his left hand.

Statute 1887, chap. 270, § 1, expressly requires the plaintiff to have been in the exercise of due care; but, for the purposes of the present case, we will assume that it was intended to abolish the defense that the plaintiff took the risk of the known dangers of the business as an implied term of his contract of service, so far as this defense is peculiar to the relation of master and servant, or is made inequitable by reason of the parties' not standing on an equal footing because of the servant's fear of losing a place.

The Statute of 1887, chap. 270, § 1, does not mean or intend, if an employé voluntarily chooses to work upon a machine which he knows is defective, or engage in work which does not fall within the scope of his duties, with a full understanding of the work and of its dangers, that he is to have an action against We will assume, further, that we cannot go his employer if injured by the machine on behind the finding of the jury that the plaintiff which he is engaged because some other em- used due care in his attempt to cure a defect ployé has neglected to repair it. It only means that was known to be perilous, although there that the employer shall not avail himself of the is some difficulty in seeing what need there defense that the plaintiff's injury was caused was to put himself close to the source of danby the neglect of a fellow servant, provided the ger when he knew that he could not work upplaintiff can maintain his action if that de-on it until it was at rest, and did not intend to fense is out of the way.

Ashley v. Hart, 1 L. R. A. 355, 147 Mass. 575; Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685; Roberts & Wallace, Liability of Employers, 252, 3d ed., cited with approval in Thomas v. Quartermaine, supra; Martin v. Quay Alkali Co. 33 Week. Rep. (Q. B. Div.) 216; Yarmouth v. France, L. R. 19 Q. B. Div. 647.

A different doctrine seems to be laid down in Weblin v. Ballard, L. R. 17 Q. B. Div. 122, but it must be regarded as overruled by Yarmouth v. France and Thomas v. Quartermaine, supra.

Holmes, J., delivered the opinion of the

court:

do so, and when he knew also that it would be at rest in a few minutes. But we were inclined to think at the argument that there might be cases where the plaintiff would be held to have taken the risk irrespective of any implied term in his contract of service, even if he could not properly be said to have been negligent, and that this was such a case. We have been confirmed in our opinion by further reflection, and by finding that it had been so decided in England, under Stat. 43 and 44 Vict. chap. 42, before our Act was passed, a fact the importance of which is shown in Ryalls v. Mechanics Mills, ante, 667.

In Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685, L. R. 17 Q. B. Div. 414, the plaintiff had fallen into a cooling vat which had This is an action for personal injuries caused been left without a railing, and it was found by a defect in the condition of the defendant's that he had not been guilty of negligence. It machinery. The plaintiff has had a verdict and appeared, however, that he had perfectly unthe question before us is whether it was war-derstood the danger and had incurred it of his ranted by the evidence. The plaintiff's case as own motion in the course of his work. It was stated by himself was as follows: He was held that he could not recover because he had twenty-two years old, had followed the business taken the risk upon himself-not by reason of of loom-fixing and weaving since he was twelve, his contract of service, but as one not a servant for the last year in the place where he was and invited upon the premises on business of hurt, and was a loom-fixer at the time of the the employer's own would have taken the risk accident. He had charge of the pulleys on the if he voluntarily had put himself into the same looms but had nothing to do with the shafting situation knowing and appreciating the danor the pulleys on it. About a week before the ger. accident he noticed that the belt kept running off the pulley on the shafting, and notified Gillette, the man over him, Thacker, the head of the machine shop, and O'Gara, one of the men under Thacker. Gillette said he would see to

The statute does not put servants in a better position than that of the most favored persons who are not servants.

It may be that a case like Thomas v. Quartermaine comes very near the line, because if

tion of permanent doors which he was to furnish | become unsafe, the landlord is not liable for to cover the stairway leading from the sidewalk the results of such negligence. to the cellar, has an iron grating placed over the opening and employed a watchman to watch the

Wolf v. Kilpatrick, 2 Cent. Rep. 81, 101 N. Y. 146; Woram v. Noble, 41 Hun, 398.

outside of the building, cannot be held liable for injuries sustained by one falling from the street into such opening while the covering is temporarily removed by some stranger or person not in his employ, which was done when the watchman's back was turned, and he was on his rounds. 3. No more than ordinary care is demand-ercise more than usual care to avoid danger. ed of the owner of property with respect to the rights of third persons.

Ordinarily a person is undoubtedly entitled to assume that the street is safe for his usual passage. But when the presence of repairs or other obstructions gives notice of unusual conditions, passers-by are properly required to ex

Gray, J., delivered the opinion of the court: | at the defendant's hands, but they had been comThe defendant in this action has appealed pleted in this particular part, except that certain from a judgment, entered upon the verdict of wooden doors to guard the entrance by this a jury, by which he is held in damages for in-flight of steps had not yet been completed and juries occasioned to the plaintiff by falling put up. Temporarily the defendant had furdown a flight of steps leading from the side- nished and put over the opening an iron gratwalk of the street into the cellarway of a build-ing, weighing some one hundred fifty pounds, ing. which extended from the upper step of the flight to the wall of the building, at an angle.

The complaint charged that these injuries were caused solely through the negligence of the defendant in permitting that part of his premises to remain unprotected and in an unsafe and dangerous condition.

In order to gain access to the tenant's cellar, this iron work had to be lifted up and removed. The flight of steps was an ordinary one, and had been there for years. A watchman was The proof established the following state of employed by the defendant to watch the outfacts: The plaintiff was walking by the de-side of his building, and he was examined in fendant's building on the north side of Thir- behalf of the plaintiff. His instructions were, teenth Street, between Ninth Avenue and Hud- among other things, to see that this iron cover son Street, in the City of New York, on a Sun- to the cellarway was kept in place. On the day morning in June, 1884. When opposite to morning in question it had been securely in the flight of steps, he stepped to one side to pass place, but while the watchman was on his by some men, who were standing at that point round, and before Iris round was completed, of the sidewalk. He attempted to pass between someone removed it, and it was out of place them and the building, and in so doing fell when the plaintiff came by. This flight of down the steps. His eyesight was defective, steps extended into the sidewalk, and beyond and that may have accounted for his failure to the railing of the area about eighteen inches, observe the cellar opening. But whether it was but this feature is not to be considered as inor not is immaterial, in the view I take of the volving any particular consequences.

case.

The building had come into the defendant's possession within the previous six months, and covered the block. Around it was an open area separating it from the street. The steps in question led from the sidewalk of the street into this area and so into the cellar of the building.

This cellar had been leased by the defendant, and the tenant was in possession and actual occupation. The lease was in writing, and gave no right to defendant to use that part of the premises, or the steps in question. The building had been undergoing repairs and alterations

one lawfully upon it is subsequently injured by reason of such condition, the owner is liable for the injury. Albert v. State, 6 Cent. Rep. 447, 66 Md. 325; Owings v. Jones, 9 Md. 108.

A dock is regarded as a species of public highway, and for that reason the same rules apply. Edwards v. New York & H. R. Co. 98 N. Y. 245.

Owner and landlord; when not liable.

The complaint did not charge the defendant with maintaining a nuisance, and the trial did not proceed upon any such theory of liability. In fact the learned judge who presided at the trial charged the jury that the plaintiff had chosen to base his action upon the charge of direct negligence, and not upon that of maintaining or continuing a public nuisance; and he left it to the jury to say whether the accident was caused exclusively by the negligence of the defendant, or by those who were acting for him.

In this the plaintiff acquiesced, and he is in no position to argue now, in support of his

A landlord is not liable for the maintenance of a nuisance by his tenant. Gilliland v. Chicago & A. R. Co. 2 West. Rep. 138, 19 Mo. App. 411; Wood, Land, and Ten. § 384; Taylor, Land. and Ten. § 174.

So for injuries to third persons caused by a nuicance created on the premises after the letting, the tenant, and not the landlord, is liable. Ditchett v. Spuyten Duyvil & P. M. R. Co. 67 N. Y. 425; Shindelbeck v. Moon, 32 Ohio St. 264; Wolf v. Kilpat

87 N. Y. 471; Harris v. Cohen, 50 Mich. 324; St. Louis v. Kaime, 2 Mo. App. 66.

A lease of a store and basement includes the ex-rick, 2 Cent. Rep. 82, 101 N. Y. 146; Ryan v. Wilson, cavation under the sidewalk and its covering, and the tenant's covenant to keep in repair applies to it. Hence a landlord is not under obligation to see that excavations in sidewalks, made by him and covered when left, are kept covered. Boston v. Gray, 3 New Eng. Rep. 699, 144 Mass. 53; Lowell v. Spaulding, 4 Cush, 277; Stewart v. Putnam, 127 Mass. 403; Larue v. Farren Hotel Co. 116 Muss. 67.

The owner of a building leased to a tenant, who occupied it, is not liable to a third person who was injured in passing along the walk leading from the street to a building for the purpose of transacting business with the tenant, by falling down an embankment adjoining the walk, although the estate was in that condition prior to the letting (Mellen v. Morrill, 126 Mass. 545), nor for falling down an elevator well, occasioned by the unlocking of the elevator door by a tenant who obtained the key without the landlord's knowledge. Handyside v. Powers, 5 New Eng. Rep. 179, 145 Mass. 123.

A railway company is not liable for injuries resulting from a defective construction of a hotel on its land, where it was built, owned and kept by its lessee. Texas & P. R. Co. v. Mangum, 68 Tex. 342.

When property, not a nuisance when demised, becomes so only by an act of the tenant while in possession, the owner is not liable. Joyce v. Martin, 4 New Eng. Rep. 797, 15 R. I. 558; Rankin v. Ingwersen, 8 Cent. Rep. 371, 49 N. J. L. 481.

The owner of a building in the possession and control of his tenants is not liable for the conse quences, to a third person, of a nuisance in connection with the building, unless the nuisance occasioning the injury existed at the time the premises were demised. Kalis v. Shattuck, 69 Cal. 593.

A landlord leasing the premises without a covenant to keep them in repair is not liable for injuries to a third person from their defective condition, if the defect did not exist at the time of leasing. Johnson v. McMillan (Mich.) 13 West. Rep. 740.

It has been held in Massachusetts that when the lessee has covenanted to make repairs the lessor is not liable for damages to third persons from the original defective condition of the premises. Leonard v. Storer, 115 Mass. 86. See also Pretty v. Bickmore, L. R. 8 C. P. 401.