ually died from the effect of the injuries received, and his father took out letters of administration upon his estate, etc. On the trial of the action the court entered judgment of compulsory nonsuit, and afterward refused to take it off. George Rummell, Sr., also brought an action against the same defendants to recover for expenses, medicine, loss of services, etc. A. M. Watson, for plaintiff in error. Employees are entitled to protection against the carelessness of their employers, who are bound to provide ordinarily safe appliances and machinery, and to keep them in proper condition. This principle is laid down in Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Penn. St. 280. Whether the defendants were prima facie liable, and the evidence adduced by the plaintiff made out such a case as ought to be submitted to a jury, was the question in Baker v. A. V. R. R., 95 id. 211. The judgment of nonsuit entered below was reversed, in accordance with Patterson v. P. & C. R. R. Co., Caldwell v. Brown and other cases. Where means are afterward taken to prevent future accident, makes at least a prima facie case against them. McKee v. Bidwell, 74 Penn. St. 218. The evidence showed negligence on part of defendants upon which it was the province of a jury to pass. R. R. v. Heil, 5 W. N. C. 91; Pittsb. L. J., October 14, 1885. In Maynes v. Atwater, 88 Penn. St. 497, the court says: "The rule upon a motion to nonsuit is, that the plaintiff is entitled to the benefit of every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove." John Dalzell and William R. Blair, for defendant in error. A master is not an insurer of his servant's safety. Priestly v. Fowler, 3 M. & W. 1; Wright v. R. R., 25 N. Y. 562; Hayden v. Man. Co., 29 Conn. 548; Payne v. Reese, 12 W. N. C. 97; Mansfield Co. v. McEnery, 91 Penn. St. 185; P. & C. R. R. Co. v. Sentmeyer, 92 id. 276. A servant who carelessly undertakes to do something outside of the line of his duty, something which his employer has neither hired nor ordered him to do, cannot recover for any injuries sustained while so engaged. Brown v. Byroads, 47 Ind. 435; McGlynn v. Brodie, 31 Cal. 376; Whart. Neg., $ 215, 244; 1 Thomp. Neg. 1016. Where an employee has full knowledge of the ordinary risks of his employment he cannot recover. Hayden v. Man. Co., 29 Conn. 548; Mad River R. R. v. Barber, 5 Ohio St. 541; Man. Co. v. Ballou, 71 Ill. 417; Buzzell v. Man. Co., 48 Me. 121; Dynen v. Leach, 26 L. J. (N. S.) 221; Stone v. Oregon Man. Co., 4 Oreg. 52; Ladd v. R. R. Co., 119 Mass. 412; Frazier v. R. R. Co., 38 Penn. St. 104; R. R. Co. v. Sentmeyer, 92 id. 278; Mansfield C. & C. Co. v. MeEnery, 91 id. 185; Green St., etc., Ry. Co. v. Bresmer, 97 id. 103. CLARK, J. The defendants, Dilworth, Porter & Co. (Limited), are the owners of a spike mill in the city of Pittsburgh. The plaintiff was, at the time of the injury complained of, an operative or laborer in that mill; he was employed by William Richards, the roller boss, and was paid by him, but whether he was directly in the defendants' employ, or indirectly as the assistant of Richards, he may be treated as their employee. He was engaged in the work of the defendants, upon their machinery, and the defendants were themselves operating the mill. The right of the roller boss to employ assistants is clearly shown, and as it does not appear that he was an independent contractor, it is unimportant that the amount of his compensation was measured by the number of tons manufactured. The plaintiff was not a trespasser, he was in the rightful discharge of the duties of a valid employment. The relation of master and servant is fairly inferable from the proofs, and the defendants are, therefore, bound to the performance of all the duties, and are entitled to the protection which that relation affords. The plaintiff entered the defendants' service on Tuesday, 6th March, 1881, and received the injury at four o'clock of the following Friday morning; he was seventeen years of age, and had no previous experience in the business in which he was employed. His duty was to drag heated billets of iron from the furnace, and to place then in a train of ten pairs of rollers, by means of which they were finally manufactured into spikes; he was designated or known in the mill as a "dragger-down.” Two "draggers down" served each train of rollers and they were required to move with rapidity; the heat and exertion were such that the "turn" did not exceed one hour, and when the turn was over another pair supplied their places, and the work was continued by alternation. The rollers were kept in motion by a combination of cog-wheels at the end, extending all along the sides of the train. When the billet was placed in the first pair, it would in some instances stick fast, and an appliance called a "gate" must be opened to allow it to pass through; this gate was between the first and second pair of rollers. The person opening it was obliged to step quickly to the space between the ends of the first and second pair of rollers, where the cog-wheels were in rapid motion, and with a pair of tongs, provided for the purpose, throw a ring from the top of two iron rods, extending perpendicularly above the rolls. The billet passing into a second pair of rollers, the gate must be closed at once, in order to admit another, which owing to this unusual delay was in waiting. To close the gate, it was necessary to reach over the cog wheels and with both hands, catch the gate rods, draw them together, and replace the ring. To avoid delay, and to prevent injury to the rollers, this movement must be executed quickly. The gate was, in general, opened by the roller boss, or one of his assistants, but sometimes, when they were absent, or otherwise engaged, it was opened by the draggers-down, one of whom by the very nature of their employment was always present. As a protection against the cog wheels along this train of rollers, a guard rail, twelve inches in width, had been erected, extending from the second pair of rollers to the foot of the train, but the rail did not reach to cover the cog-wheels of the two pairs of rollers at the head, between which the gate was to be opened and shut; these were all exposed; no protection of any kind was here provided. At the time of the injury, George Rummell, Jr., the plaintiff, placed a heated billet in the first pair of rolls; it stuck fast; the roller boss was not there at the time; Rummell opened the gate, and whilst in the act of closing it, was caught in the cogs and very seriously injured. It is argued that the plaintiff, by the terms of his employment, was not charged with the opening and closing of the gate; that he was employed as a dragger-down only; that his duty was discharged in the delivery of the billet into the rolls, and that he was, therefore, a mere volunteer in the act from which his injury was received. It appears, however, that he was employed by and was under the orders and control of the roller boss, whose proper duty it may have been in this emergency to relieve the rollers; but Richards, from time to time, allowed the draggers-down to perform this work, especially in his absence, and he was frequently absent in other parts of the mill. The draggers-down appear to have assumed that this was part of their duty, and Richards certainly did nothing to inform them otherwise; he seems to have stood by on repeated occasions whilst they did it. The act was one demanding prompt and speedy action, and in the absence of the roller boss and his general assistants, it fell into the hands of the dragger-down, who was expected to act at the instant The scope of his duties is to be defined by what he was employed to perform, and by what with the knowledge and approval of his employer he actually did perform rather than by the mere verbal designation of his position. Besides, Anthony Myers testifies that one of the ordinary duties pertaining to the position of a dragger-down, was to open the gates whenever the billet stuck, and that they were employed in part for this purpose; and this would appear to conform to the actual practical management of this part of the mill, and to the apparent understanding of all concerned therein. The jury, under the evidence, would certainly have been warranted in finding that Rummell was not a mere volunteer in the performance of the act from which he received the injury. But it is said there is no evidence that the plaintiff's injury resulted through the defendants' negligence; on the contrary, that it resulted from the ordinary risks of the business, which the plaintiff had a fair and full opportunity to know; which, indeed, he must have seen and known from the moment of his employment. It is a well-settled rule of the law that the master must adopt, provide and maintain reasonably suitable instruments and means with which to carry on his business, so that his servant may perform his duties with relative safety, and without exposure to dangers which are not reasonably incident to his employment. Correlative to this is the rule equally well settled, that a servant will be deemed to have assumed all risks naturally and reasonably incident to his employment, and to have notice of all risks, which, to a person of his experience and understanding, are or ought to be open and obvious. Railroad Co. v. Keenan, 103 Penn. St. 124. These rules are elementary and fundamental, and are every where recognized; they grow out of the necessities of the relation of master and servant, and are encouraged and sustained by public policy. If, however, a person specially undertake to perform a peculiarly perilous work, by operating a machine, obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot afterward complain, in case of injury, in consequence thereof, that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe. Railway Co. v. Bressmer, 97 Penn. St. 103; Marsden v. Haigh & Co., 14 W. N. C. 526. So, upon an analogous principle, if an employee after having full and fair opportunity to become acquainted with the risks of his situation, makes no complaint whatever to his employer, as to the machinery which he knows to be wanting in appliances for safety, takes no précaution to guard against danger, but accepting the risks, voluntarily continues in the performance of his duty, he cannot complain if he is subsequently injured by such exposure. Whart. Neg. 214. He is not bound to risk his safety in the service of his master, and he may if he thinks fit decline to do that which exposes him to imminent peril. In the case at bar, the plaintiff was employed as a dragger-down, and incidentally to that he was charged at times with the duty of opening and shutting the gate. The terms of his employment were general; he might have been assigned to this or any other train of rollers; there was nothing in the nature or terms of his engagement by which he would be held to have assumed any special or extraordinary risk, he accepted simply such hazards as were reasonably incident to his employment. There is evidence tending to show that the closing of the gate was attended with danger, that when reaching in, over the rapidly revolving wheels, for that purpose, the operator was liable to be caught in the cogs. There is evidence also that this difficulty was easily obviated, by the extension of the guard rail to cover the point of danger, and that this appliance was reasonably necessary for the safety of the operator, but that in fact the rail was wanting when most required. On the other hand it was shown that the gate had been opened repeatedly and successfully by others without injury, whilst the guard rail ever since the mill was erected was the same as at the time of the accident. Now, an employer is not bound to furnish the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility resulting from its use; if the machinery be of an ordinary character, and such as can with reasonable care be used without danger, except such as is reasonably incident to the business, its all that can be required. Railroad Co. v. Sentmeyer, 92 Penn. St. 276; Payne v. Reese, 100 id. 301. Here then, certainly, was a question for the determination of the jury. Was the appliance for opening and shutting this gate such as we have stated the law requires to be furnished by an employer for the use of his employee? It is argued, however, that if it was not,' Rummell could easily see that it was not, and in accepting employment he accepted the risk; that is to say, if the machinery was not ordinarily and reasonably safe, its defects or want of appliances for safety were open and obvious, and the plaintiff thereby had notice of them. It is certainly true that the cog wheels were open and fully exposed to view, this is precisely what is complained of; the closing of the gate required the operator to reach over these cog-wheels whilst in rapid motion; this too was open and obvious; but the danger to be apprehended in closing the gate did not wholly depend upon these facts which were patent. The safety of the operator depended largely upon the amount of exertion required to accomplish the act in each instance, under these circumstances of dan VOL. III. 104 ger. A man may at arm's length perform with reasonable safety an act which would become exceedingly perilous if the effort required were greatly increased. So, too, a strong and vigorous man might, and doubtless would, perform the work with much greater ease, and, therefore, with much greater safety, than a man of more moderate powers. One of the witnesses testifies that sometimes the gates are hard to pull," "you have to pull them together as tight as you can," from which we may readily infer that sometimes they are harder to close than at other times. Actual experiment only, therefore, could fully disclose to the plaintiff the degree of peril he assumed. The cog-wheels in rapid motion were certainly open to the view of the plaintiff, but whether he was liable to be drawn into them depended upon matters with which he was totally unacquainted, and which he could learn only by actual experiment. He was young and without experience, had only been on duty for four days, and had opened the gate but two or three times previous to the injury. The plaintiff cannot be supposed or assumed to have accepted, in advance, a peril which he could not estimate, and the extent of which for lack of experience he could not have known. Where there is any doubt, whether the employee was acquainted, or ought to have been acquainted with the risk, the determination of the question is necessarily for the jury. Assuming, therefore, that the defendants have not provided a reasonably safe appliance for the opening and closing of the gate, we are not prepared to say, as matter of law, under the presentation we have of this case, that the plaintiff cannot recover. The case was one for the jury, and we think the court erred in refusing to take off the nonsuit. For reasons given in our opinion, filed in the case of George Rummell, Jr. (now by George Rummell, Sr., administrator) v. Dilworth, Porter & Co. (Limited), at No. 208, October and November term, 1885, this judgment is reversed and a venire facias de novo awarded. Judgment reversed and a venire facias de novo awarded. CAMPBELL V. PENNSYLVANIA RAILROAD COMPANY. January 4, 1886. NEGLIGENCE INJURY CAUSED BY FELLOW SERVANT - - RISKS INCIDENT TO EMPLOYMENT- -DUTY OF EMPLOYER AS TO SUPPLYING TO SERVANTS MEANS AND APPLI ANCES SUITABLE TO PERFORM THE SERVICES INCIDENT TO THEIR EMPLOYMENT. For an injury caused by a fellow servant without more, there can be no recovery. It is the duty of an employer to furnish his employees with such means and appliances as are suitable for the work in which they are employed and at the same time reasonably necessary for their safety. In the absence of proof to the contrary the presumption is that he has discharged his duty in that regard. On the other hand, the employee impliedly assumes all such risks arising from his employment as he knows, or in the exercise of reasonable prudence ought to know, are incident to such employment. There can be no recovery against the employer for injuries arising from patent risks which the employee has knowingly and voluntarily assumed. Error to the court of common pleas, No. 2, of Allegheny county. Campbell was employed by the Pennsylvania Railroad Company to work at repairs in its yard in Pittsburgh; he went on duty for the first |