This is an action to recover damages on account of an injury to the plaintiff’s hand, caused by contact with a circular ripsaw, which the plaintiff was operating in the defendant’s mill. The accident happened on a Sunday, the plaintiff having accepted an offer of employment on that day for extra pay.
So far the court has proceeded without difficulty in finding facts established by the evidence and reaching conclusions favorable to the plaintiff’s side of the case; but, on the other hand, it is an undisputed fact in the case that the plaintiff voluntarily accepted an offer of employment as operator of this particular saw, after he had been working continuously at other employment in the same mill for a period of at least six weeks, his station being less than 10 feet distant from this ripsaw, so that he had abundant opportunity to have become familiar with it, and necessarily knew that it was unguarded and lacking in the means of safety which the statute prescribes. He was not obliged to work on Sunday, under the terms of his general contract of employment, but accepted an offered opportunity to work as operator of the ripsaw on a Sunday for extra compensation, knowing that the saw was unguarded and a dangerous implement.
These facts bring the case clearly within the rule of law which exempts an employer from liability for accidental injuries to employés on the ground that they are held to a degree of responsibility for their voluntary acts, and are deemed to have assumed the risk of accidental injuries happening from exposure to known or obvious dangers.
It is absolutely necessary in the conduct of human affairs for people to have liberty to engage in dangerous emploj^ments, and the law takes into consideration the circumstances surrounding each contract of employment, and fixes the relative responsibilities of the parties with reference to what may be fairly assumed to have been their own understanding and agreement. The law does not place upon employés an obligation to investigate conditions and assume the risk of accidents which may happen from dangers which might be revealed by a reasonably thorough inspection of places and appliances, but merely takes for granted that by voluntarily entering into an employment, or continuing therein, they do thereby assent to the exposure of themselves to all such dangers as they know to exist, and such as are necessarily obvious to them in view of their capacity, knowledge, and experience, each case being judged by its peculiar facts.
The principles of the common law applied to the facts in this case afford no ground for an award of damages to the plaintiff; but in his behalf it is contended that he has a right of action, and is entitled to an award of damages, by virtue of a statute of this state
This statute provides in terms—
“That any person, corporation or association, operating a factory, mill or workshop where machinery is used, shall provide and maintain in use * * * proper safeguards for all vats, pans, trimmers, cutoff, gang edgers and all other saws that can be guarded advantageously. * * * If a machine, or any part thereof, is in a dangerous condition, or is not properly guarded, the use thereof is prohibited and a notice to that effect shall be attached thereto. * * *”
Section 4:
“Any person, corporation or association who violates or omits to comply with any of the foregoing requirements or provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five nor more than one hundred dollars or by imprisonment for not less than fifteen days nor more than ninety days.”
This is a penal statute, enacted by the Legislature in the exercise of the police power of the state, and it contains.no provision purporting to affect in any way the rules of law applicable to civil actions. It gives no hint of an intention to confer upon injured employés any new right enforceable in an action to recover damages, nor does it express a legislative intent to change the common law by abolishing defenses recognized by the common law, nor does it prescribe an arbitrary rule of evidence, like the provision contained in the act of Congress making the use of automatic couplings on railroad trains compulsory, which prescribes, in effect, that trainmen shall not be deemed to have assumed the risk of injuries from their employment on trains not provided with automatic couplers. See U. S. Comp. St. 1901, vol. 3, p. 3176.
In support of the plaintiff’s contention the following cases have been cited, in which it is argued that the statute must be construed to further the object intended of affording protection to employes in mills and factories, and that the law would be defeated of its purpose by exempting an employer guilty of its violation from liability to an injured employé for damages in a civil action: Green v. Amer. Car & Foundry Co. (Ind. Sup.) 71 N. E. 268; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319: Monteith v. Kokomo, etc., Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Baltimore & O. S. W. R. Co. v. Cavanaugh (Ind. App.) 71 N. E. 239; Sipes v. Michigan Starch Co. (Mich.) 100 N. W. 447; Marino v. Lehmaier (N. Y.) 66 N. E. 572, 61 L. R. A. 813; Buehner v. Creamery Package Mfg. Co. (Iowa) 100 N. W. 345; Western Anthracite Coal & Coke Co. v. Beaver (Ill.) 61 N. E. 336; Narramore v. Cleveland C. C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68; Green v. Western American Company, 30 Wash. 87, 70 Pac. 310.
AYith all due respect to the learned judges who have expressed such views on the subject, I feel constrained to reject these arguments as being unsound. ' The courts have no authority to extend or amplify the provisions of statutes so as to make them comprehend additional rights and remedies which the Legislature omitted to provide. A statute which is plain and free from ambiguities is
Another of the arguments found in the dictum of cases relied upon by the plaintiff is a rather far-fetched theory that the statute has by necessary implication abolished the common-law principle of assumption of risk by voluntary employés, because that principle is based upon an implied contract, and, since the statute makes the use of unguarded machinery criminal, any such implied contract would be an inconsistency in the law itself, in so far as the law would create a contract to do an act which the law prohibits. In this there is a misunderstanding of the legal implication in such cases. A contract of employment is not a creation of the law. Nor is the assumption of risk of injury from the employer’s wrongful neglect of his duty a burden imposed by the law. It only deals with actual conditions, and it is the actual use of dangerous agencies to which the law attaches the implied agreement on the part of an employé to make no claim against the employer for any injury which may happen, as a consequence of his voluntary exposure to known or obvious dangers. Were a man to stipulate in express terms to operate a dangerously defective machine for a definite period of time, the law would not hold him liable as a violator of a valid contract for refusing to expose himself to such danger, when no peculiar circumstances excused the employer’s failure to correct the defect. Such a stipulation in an executory contract would be illegal and void because obnoxious to the natural law of self-preservation and contrary to public policy. There is no substantial difference between an agreement which is unlawful because harmful and an agreement to do an act prohibited by a statute. In either case the unlawfulness of the agreement constitutes a bar to its enforcement by judicial proceedings.
For the reasons above set forth, it is my opinion that this plaintiff has neither a common-law nor statutory right of action for the injury which he has suffered, and that a judgment must be rendered that he take nothing by this action.