errors assigned, which it is unnecessary to notice.

Moses Whybark and L. F. Parker, for appellant. Edw. D. Hays, for respondent.

NORTONI, J. (after stating the facts). Appellant contends, that inasmuch as it appears by respondent's testimony he had continued in the service without complaint a whole week with knowledge of the defective gearing of the hand car in question, this brings the case within the rule pertaining to obvious or seen dangers, therefore he should have been nonsuited at the trial for the reason that he had assumed the risk; that, the trial court having overruled its demurrer to respondent's case, this court should declare as a matter of law that respondent assumed the risk, notwithstanding his testimony that he had never seen a car derailed from a like cause, and notwithstanding his testimony that he did not consider the car dangerous for use because of said defective gearing. if operated at the rate of speed it was being operated when the accident befell him. In other words, appellant asks this court to declare as a matter of law that because respondent had seen and knew of the defect in the gearing, because such defect was patent and obvious to him for a week, its immediate and imminent danger was patent and obvious to him also; and, further, that he knew, understood, and appreciated such immediate and imminent danger.

It is a difficult matter, indeed, for a court, sitting at long range from the site of the injury, and with naught before it save the cold record, to look into the senses of the respondent and say that he knew, that he understood, that he appreciated, the danger which lurked in the defective gearing, and which finally befell him therefrom, when respondent himself says that he did not appreciate such danger. We will endeavor to dispose of the matter in accordance with the rules of law as enunciated and settled in this state by the courts of last resort in passing upon cases of like kind, and this brings us to the point of discovery: What is the law?

Those of the profession, either on the bench or at the bar, who have had occasion in the past to investigate the adjudications in Missouri upon that department of the law treated of as assumption of the risk, will have discovered a wonderful conflict, and those who may in the future be called upon to examine the cases in search of precedents will no doubt be able to find able and well-considered opinions by learned judges which can be used as authority on either side of pending questions arising in this branch of our jurisprudence. It seems that many of the cases have so commingled and confounded the principles of the law of contributory negligence with that pertaining to assumption of risk that scarcely a hope of its disentanglement remains.

Judge Thompson in his work on Negligence, vol. 4, § 4611, points out the distinction in apt and appropriate illustration, as follows: "Many of the earlier and some of the later decisions confuse the two subjects of an acceptance by the servant of the risk of employment and his contributory negligence. The two subjects lie close to each other, and in some cases blend; but in other cases they are distinct subjects. Nevertheless the judges frequently use the words 'contributory negligence' where they really mean an acceptance of the risk. In other instances they use the words 'an acceptance of the risk' where they really mean contributory negligence. Let us illustrate this by the everyday accident connected with coupling cars. In order to make a coupling, the cars must be thrust together either by a locomotive, or by a propulsion called 'kicking' or 'shunting,' or by gravity. There is consequently always danger to the brakeman in the operation. If, in making the coupling, he accidentally, and without negligence, slips and falls and passes under a wheel, his injury is ascribed to one of the ordinary risks of employment, which risk he has accepted, and no damage can be recovered for it. But if, instead of using the coupling stick furnished him by the railway company, he undertakes to make the coupling with his hands, and in the operation gets his hand crushed, this is contributory negligence, and consequently no damages can be recovered. The distinction between the two cases is that in the former the brakeman was not guilty of negligence at all; consequently the expression 'contributory negligence' could not properly be applied to his act, but what he suffered was from a mere accident attending the known danger, the risk of which he had assumed; whereas in the latter case his own negligence and rashness brought upon him the injury which he suffered."

As pointed out by Judge Goode in Adolff v. Columbia Pretzel & Baking Company, 100 Mo. App. 206, 73 S. W. 323: "The defense of assumption of risk * * must be founded on contract and treated by the prin ciples of contract law, or, if there was no contract relationship between the parties which included the fatal hazard," then it rests on said maxim, volenti non fit injuria, which expresses assent as well by other methods as by contract. And again: "The two defenses of assumption of risk and contributory negligence are unlike, because of the different states of mind in which they are rooted. It is palpable that an act done willfully and upon full information is not done negligently, and this distinction is recognized throughout the law of torts. Negligence is the result of inattention or oversight, whereas consent to a risk implies knowledge of the danger of the act to be performed, and the performance of the act understandingly and without constraint."

Dean v. St. Louis Woodenware Co. (Mo. App.) 80 S. W. 292.

The distinction is pointed out and treated fully in Bailey on Personal Injuries, vol. 1, § 948 et seq. The two doctrines have been so thoroughly and completely confounded in Missouri that it is an absolute impossibility to harmonize the authorities. This is true to such an extent that the learned author of a very able and instructive note to be found in 49 L. R. A., at page 44, introduces the subject in the following language: "The Missouri decisions upon the disabling effect of the servant's continuance to work with knowledge of abnormal conditions produced by the master's breach of duty are so extraordinarily conflicting that it will be convenient to review them separately;" and we find that Bailey on Personal Injuries (Ed. 1897) § 469, treats of our law on this subject separately and apart, under the subhead of "Missouri Rule." This is a most important department of the law. It is lamentable, indeed, that such a conflict should be found in our decisions. A conflict of this kind should not exist in one jurisdiction. The rights of the poor who enter into employment, and the rights of the rich who employ labor, as well as those of moderate means on either side, are alike involved. It is a duty the state owes to the citizen, and it is the province of the court to discharge this duty on behalf of the state, to the end that the rights of either shall be ascertained and measured by the same principles in every instance of like causes. It is not only wrong as a matter of law, but it is highly unjust as well to the employer, for a cause to be decided upon the principles of the law of contributory negligence, and the employer be held to answer in damages, if, forsooth, he was unable to show that the injured employé had been guilty of negligence that contributed to the injury, when in fact the employé, by his contract of employment, assumed the very risk from which he was injured. On the other hand, it is equally unjust to the employé to apply the principles of the law of assumption of the risk in a case where he has been injured by the negligence of the master arising out of a state of facts which does not bring his case within that law, and deny to him a recovery upon the grounds that he had, either by implied contract or by virtue of the maxim volenti non fit injuria, assumed the risk of the master's tort, when the injury from which he suffered was not a risk ordinarily incident to the employment, nor was it one of those obvious risks which he assumes by continuing in the employment with full knowledge, or so obvious that he is held to have understood its dangers. Entertaining these views, and impressed, as we are, with the importance of the subject, in order to avoid muddying the water ourselves, if possible, we have devoted much labor and careful thought to the cases both in this and other jurisdictions, hoping to be

able to evolve therefrom, understandingly, a correct solution of the present state of the law on the subject, and make an intelligent application thereof to the case in hand. In a number of very recent decisions of our Supreme Court which are urged upon us by counsel for respondent, that court has held that the servant assumes only such risks as are ordinarily incident to the employment. Under these rulings, so much of the law of assumption of risk as has been settled to have its resting place upon the maxim "Volenti non fit injuria" aforesaid, aside from the contract, seems to be treated as not applicable in this state. Those cases in effect hold that in case of an injury resulting from the master's negligence, even though the defects from which it arose were patent and danger obvious, or in case of the servant having actual knowledge thereof and appreciating its danger, this is not a risk assumed by virtue of his continuing in the employment with such knowledge and appreciation. Those cases limit the risk assumed to those ordinarily incident to the employment, which are impliedly assumed under the contract of labor; and in Curtis v. McNair, 173 Mo. 280, 73 S. W. 167, the court intimates that the servant cannot make an express contract assuming extra hazard from the master's negligence. On this point, citing Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149, where the court made the statement that such express contract in solemn form had been decided by a number of American courts as contrary to public policy, the statement was made in discussion; it was not the point in decision.

In Pauck v. St. Louis Dressed Beef & Provision Co., 159 Mo. 467, 61 S. W. 806, the court said: "The danger being from a defective appliance, it was not one naturally incident to plaintiff's employment, and was therefore not assumed"-citing Henry v. Railway, 109 Mo. 488, 19 S. W. 239; Nicholds v. Glass Co., 126 Mo. 55, 28 S. W. 991.

In Curtis v. McNair, supra, the court said: "The only risk a servant does assume is that which is liable to happen on account of the nature of the business, when the master has used reasonable care to avoid such result."

In Cole v. Transit Co., 183 Mo. 94, 81 S. W. 1142, the court said: "The servant assumes the risks of danger incident to the employment, but he never assumes the risks of his master's negligence. If his master furnishes him unsafe implements, and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but not of assumption of the risk."

In Wendler v. House Furnishing Co., 165 Mo. 536, 65 S. W. 739, the court said: "The court tried the case under the rules of law laid down by this court in Settle v. Railway, 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633, and again in Pauck v. Provision Co., 159

Mo. 467, 61 S. W. 806. In those cases it was shown that it was the duty of the master to use ordinary care in furnishing instrumentalities with which his servants are to work, so as to render them reasonably safe, and that a danger arising from a neglect to do so is not a risk assumed by the servant; and, further, that this duty of the master is a continuing duty, and, though the servant may know that it has been neglected in the past, the master is not thereby relieved of it, nor does the servant assume the risk of his neglect; that is to say, the neglect of the duty by the master with the servant's knowledge, or even by express contract between the master and servant (Blanton v. Dold), does not convert the danger arising therefrom into a risk of the employment assumed by the servant. In such case, the servant's knowledge of the condition is a fact to be considered under the plea of contributory negligence, and under that head it precludes a recovery only when the danger is so glaring that a man of ordinary prudence, under the circumstances, would have refused to do his master's bidding.”

In Settle v. Railway, 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633, the court said: "The question has often been raised, discussed, and decided whether a servant can recover for injuries incurred in the use of machinery or appliances known by him to be defective. The nonliability of the master in such cases, however, is properly placed on the ground of contributory negligence, rather than that of assumption of risk. The question is one of contributory negligence, which should be submitted to the jury, unless the defect is so glaringly hazardous that the court could declare, as a matter of law, that a person of ordinary prudence would not use it." See, also, Bailey on Personal Injuries, § 469, where the above doctrine is incorporated in the text by the author, under the heading of "Missouri Rule."

Under the doctrine announced in these cases, there would be no difficulty about the right of respondent to have his case submitted to a jury, as was done in those cases, as his continuance in the service with knowledge of the defective condition of the gearing of the hand car would not preclude his recovery on the ground that he had assumed the risk, unless such defect was so glaringly dangerous as to make it a matter for the court, and we do not think it was so glaringly dangerous. But under section 6 of the amendment to the Constitution of Missouri adopted November, 1884, the last previous ruling of the Supreme Court on any question of law or equity shall in all cases be the controlling authority in this court. It is therefore our duty to try the case in hand in accordance with the doctrine announced in Mathias v. Kansas City Stock Yards Company (Mo. Sup.) 84 S. W. 66. That was a case in court in banc. The court divided. The majority opinion by Judge Fox adverts to the old doctrine, 87 S.W.-2

and revives so much of the law of assumption of risk which rests upon the maxim volenti non fit injuria, or assent to the risk, apart from the ordinary hazard of the employment, which is assumed by implication in the contract. The court there quotes approvingly from Roberts v. Telephone Co., 166 Mo. 378-379, 66 S. W. 157, as follows: "The servant is held, by his contract of hiring, tɔ assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. He has therefore no right of action, in general, against his master, for an injury befalling him from such a cause. His right to recover will often depend upon his knowledge or ignorance of the danger. If he knew of it, or was under a legal obligation to know of it, it was part of his contract, and he cannot, in general, recover"-citing Thomas v. Ry., 109 Mo., loc. cit. 199, 18 S. W. 980; Price v. Ry., 77 Mo. 508; Steinhauser v. Spraul, 127 Mo., loc. cit. 562, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441. The court also quoted approvingly from Nugent v. Milling Co., 131 Mo. 245, 33 S. W. 429: "The servant, when he enters the employment of his master, assumes not only the risks incident to his employment, but all dangers which are appar ent and obvious as a result thereof." The court also quotes approvingly section 1008, 2 Thompson on Negligence, as follows: "If the servant, before he enters the service, knows, or if he afterwards discovers, or if, by the exercise of ordinary observation or reasonable skill and diligence in his department of service, he may discover, that the building, premises, machine, appliance, or fellow servant, in connection with which or with whom he is to labor, is unsafe or unfit in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it shall result in injury to him." It also quotes from Sherwood, J., who delivered the majority opinion in Steinhauser v. Spraul, 127 Mo. 562, 28 S. W. 626, 30 S. W. 102, 27 L. R. A. 441, as follows: "Again, no principle is more frequently enunciated or more often applied in the adjudicated cases than that which holds that an employé, in engaging in the service of another, assumes the risks incident to such employment, and this is especially true of seen dangers and patent defects." (The italics above are our own, except the words "seen dangers and patent defects" quoted from Judge Sherwood.) The court in banc applied these well-settled principles of law pertaining to assumption of risk and hazard resulting from obvious defects which are known and appreciated, or which are so obvious that their dangers must be understood, to the case in decision, thereby in effect over

It is well settled in this state, and there is no controversy in this case to the contrary, that: "It is the duty of the master to use reasonable care to furnish his employés with a reasonably safe place of work, and with reasonably safe and suitable machinery and appliances. The master's duty in this regard does not end here, but is a continuing one. The law imposes upon him the further obligation of using reasonable care to keep such place of work and such instrumentalities in a reasonably safe condition, and this, of course, is to be accomplished by a proper and timely inspection for defects, and the repairs thereof." 20 Am. & Eng. Ency Law (2d Ed.) 88; Williams v. Ry., 119 Mo. 316, 24 S. W. 782; Mathias v. Stock Yards Co. (Mo. Sup.) 81 S. W. 66; Herdler v. Buck Stove & Range Co., 136 Mo. 3, 37 S. W. 115; Rodney v. Ry., 127 Mo. 676, 28 S. W. 887, 30 S. W. 150; Settle v. Ry., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633; Pauck v. St. Louis Dressed Beef & Prov. Co., 159 Mo. 467, 61 S. W. 806; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Harff v. Green, 168 Mo. 308, 67 S. W. 576; Choctaw & Okla. Ry. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; Thompson on Negligence, § 3759.

In view of the recent decision of our Supreme Court in Mathias v. Kansas City Stock Yards Co., supra, the doctrine of which we find to be in line with the best courts in the country, as well as with the most able textwriters, we have been able to evolve the following rule as to risks assumed, which is amply supported by authority. The rule will be stated in two sections or divisions, as there is not now, and never has been, any conflict in regard to the first division thereof.

First. It has been the law all of the time that the servant, upon entering into a contract of employment, assumes the hazards which result from such risks as are ordinarily incident to the employment in which he engages. This proposition is so well settled that we scarcely need to cite authorities thereon. Thompson on Neg. § 4613; Beach on Cont. Neg. § 360; 2 Am. & Eng. Ency. Law, 413; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Pauck v. St. Louis Dressed Beef & Prov. Co., 159 Mo. 467, 61 S. W. 806; Settle v. Ry. Co., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633; Cole v. Transit Co. (Mo. Sup.) 81 S. W. 1138; Dean v. St. Louis Woodenwa C. (Mo. App.) 80 S. W. 296; lolff a Pretzel & Baking Co., 3 S. W. 321; Choctaw & Dade, 191 U. S. 64, 24 1. 96; St. Louis Cordage ed. 495, 61 C. C. A. 477,

'assumed above mentioned, the servant, either by entering or continuing in the service, and using, without complaint, defective appliances and machinery, assumes the hazards of such defective appliances and machinery, providing the servant knew of both the said defects and dangers liable to result therefrom. It is not enough for him to know of the defects; he must also know, understand, and appreciate the dangers thereof. That he did understand the danger must appear either from positive evidence to that effect, or the danger, as well as the defect, must be obvious. The law will not charge the servant with knowledge, nor will it presume him to have known of the defects, ordinarily, which could have been ascertained by the exercise of ordinary care and diligence on his part, for the law does not require him to search for latent defects in the machinery; but in case of patent and obvious dangers, and in case of patent and obvious dangers alone, the law charges him with knowledge, or, in other words, will presume that he knew such dangers as were obvious from a given defect, and which were necessarily sequent therefrom. The first division of the proposition above stated, that he assumes the risks ordinarily incident to the employment, is bottomed upon and grows out of the contract of employment, in which it is necessarily implied that the servant, for a consideration, having undertaken to perform the services for the master, must also, and in fact has, for the same compensation, undertaken and agreed to assume such hazards as are ordinarily incident to such employment; whereas the second or latter part of the proposition, that involving patent defects and obvious dangers, rests not alone upon the contract of hire, but upon the maxim volenti non fit injuria, which is defined by Black as, "He who consents cannot receive an injury," which, like the contract itself, involves the idea of assent on the part of the servant; that is, the free and open activity of the senses, the understanding of the situation, and the untrammeled consent to cope therewith. These views find support in the following authorities: Thompson on Neg. vol. 4, §§ 4610-4612; Beach on Cont. Neg. (3d Ed.) § 370; Wood, Master & Servant, § 327; Labatt, Master & Servant, vol. 1, 644; Mathias v. Stock Yards Co. (Mo. Sup.) 84 S. W. 69; Cole v. Transit Co., 183 Mo. 90, 81 S. W. 1138; Pauck v. Prov. Co., 159 Mo. 478, 61 S. W. 806; Roberts v. Tel. Co., 166 Mo. 370, 66 S. W. 155; Hamman v. Coal Co., 156 Mo. 244, 56 S. W. 1091; Epperson v. Postal Co., 155 Mo. 375, 376, 50 S. W. 795, 55 S. W. 1050; Lucey v. Hannibal Oil Co., 129 Mo. 40, 31 S. W. 340; Steinhauser v. Spraul, 127 Mo. 562, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441; Junior v. Electric Co., 127 Mo. 83, 29 S. W. 988; Thomas v.

Ry., 109 Mo. 198, 18 S. W. 980; Huhn v. Railway, 92 Mo. 440, 4 S. W. 937; Price v. Ry., 77 Mo. 511; Devlin v. Ry., 87 Mo. 550; Fugler v. Bothe, 117 Mo. 501, 22 S. W. 1113; Rains v. Ry., 71 Mo. 168, 36 Am. Rep. 459; Stoddard v. Ry., 65 Mo. 514; Cummings v. Collins, 61 Mo. 523; Thorpe v. Ry., 89 Mo. 662, 2 S. W. 3, 58 Am. Rep. 120; Conroy v. Vulcan Iron Works, 62 Mo. 38; Devitt v. Ry., 50 Mo. 302; Browning v. Kasten (Mo. App.) 80 S. W. 354; Goins v. Ry., 37 Mo. App. 232; Valley Ry. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 255; Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150; Patterson v. Ry., 76 Pa. 389, 18 Am. Rep. 412; Sullivan v. India Mfg. Co., 113 Mass. 396; St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 511; Smith v. Ry., 42 Minn. 87, 43 N. W. 968; Berger v. Ry., 39 Minn. 78, 38 N. W. 814; Greene v. Ry., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; Clark v. Ry., 28 Minn. 128, 9 N. W. 581; Fleming v. Ry., 27 Minn. 111-114, 6 N. W. 448.

In the case of Price v. Railway, supra, the subject was treated of as contributory negligence, but the doctrine announced is the same as that stated above. The distinction, as stated in Keegan v. Kavanaugh, 62 Mo., loc. cit. 232, in a case not involving a risk ordinarily incident to the employment, is: "If the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk; but if it is a case where no such obvious risks are incurred, and where it was fair to presume that the employer had been guilty of no negligence, the rule of law, as well as of common sense and justice, is that the master is responsible for damages, if any ensue." The word "no" italicized, next prior to the word "negligence," evidently was a misprint, and should be stricken out in reading. This distinction is borne out by the following cases: Hollenbeck v. Ry., 141 Mo. 97, 38 S. W. 723, 41 S. W. 887; Fugler v. Bothe, 117 Mo. 501, 22 S. W. 1113; Hulett v. Ry., 67 Mo. 242; Porter v. Ry., 60 Mo. 162; Id., 71 Mo. 78, 36 Am. Rep. 454; Dean v. St. Louis Woodenware Co. (Mo. App.) 80 S. W. 292; Browning v. Kasten (Mo. App.) 80 S. W. 354; Choctaw, O. & G. Ry. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551; Valley Ry. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 255.

Bailey in his work on Personal Injuries, § 465, says: "If the danger is so great that an ordinarily prudent man would have observed and heeded it, then it is one which the employé assumes, if he has knowledge of its existence, and, without any promise on the master's part to remove the danger, he voluntarily continues in the service of his employer."

"A servant will be presumed to have notice of and to have assumed the risks inci

dent to all dangers and defects which, to a person of his experience and understanding, are or ought to be patent and obvious." 20 Am. & Eng. Ency. Law (2d Ed.) 112.

Hidden dangers and latent defects which might have been discovered by ordinary diligence on the part of the master are said to be no part of the risks ordinarily assumed in the employment, and this is very properly stated on the ground that he could not assume a risk or danger of which he was ignorant. 20 Am. & Eng. Ency. Law (2d Ed.) 121; Clowers v. Ry. Co., 21 Mo. App. 217; Connolly v. St. Joe Press & Ptg. Co., 166 Mo. 463, 66 S. W. 268; Dale v. Ry., 63 Mo. 460. Nor is it incumbent upon the servant to search for latent defects in the machinery and appliances furnished him by his employer, for he has the right to assume that the master has discharged his duty by using ordinary diligence to discover such defects, and that such appliances are safe and sufficient for the purpose for which they were furnished. 20 Am. & Eng. Ency. Law (2d Ed.) 121; Connolly v. St. Joe Press & Ptg. Co., 166 Mo. 463, 66 S. W. 268; Hollenbeck v. Ry., 141 Mo. 97, 38 S. W. 723, 41 S. W. 887; Herdler v. Buck Stove & Range Co., 136 Mo. 17, 37 S. W. 115; Sullivan v. Ry., 107 Mo. 78, 17 S. W. 748, 28 Am. St. Rep. 388; Covey v. Ry., 86 Mo. 641; Aldridge v. Midland Blast Furn. Co., 78 Mo. 564; Porter v. Ry., 71 Mo. 78, 36 Am. Rep. 454; Id., 60 Mo. 162; Keegan v. Kavanaugh, 62 Mo. 232; Browning v. Kasten (Mo. App.) 80 S. W. 355. The servant is held, however, to have assumed the risk from such latent defects as could not have been discovered by the exercise of ordinary care on the part of the master, the rule being that no knowledge of such defects or appreciation of their dangers need be shown on the part of the servant, as they are risks included in the class ordinarily incident to the employment.

We have seen that hidden dangers and latent defects which could have been discovered by ordinary care on the part of the master are no part of the risks assumed under the contract of employment by the servant. Such risks are not assumed, for two reasons: First, the servant has a right to assume the master has discharged his duty, and made search therefor. Such defects, although not obvious, are of that class liable to discovery upon the reasonable inspection which the law requires of the master. They are latent and hidden to an extent, and hence cannot be taken into calculation when the contract of employment is entered into. The dangers therefrom, being concealed, and not being ordinarily incident to the employment, are not by implication carried into the contract, as the minds of the parties could in no way have met thereon, and the servant could not have consented or assented thereto. second reason is they are not assumed because they are dangers which are not obvious and cannot come into the class of risks as

The