the plaintiff acted upon an order coupled with a statement that it was all right.

The stakes around which the ropes were passed were only about nine feet from the ends of the boiler. When the lowering began the boiler was at the edge of the cellar. The whole situation was open, the apparatus used was simple, and the plaintiff was so placed as to have a perfect opportunity to know and appreciate how the work went on and what dangers attended it, and to control absolutely his own motions in whatever share of the work he attempted to perform.

The order, if given, as we assume, was in substance that the plaintiff should slack the rope by getting it out of the cut which it had made in the post. It was obvious that as soon as this should be done the constantly acting weight of the boiler would tend to pull the rope forward and to carry the hands, if near enough to the post, between the rope and the post. In attempting to comply with the order the plaintiff had liberty to choose and chose his own position. The order did not tell him to hurry nor dictate to him where he should take hold of the rope, and it fairly cannot be construed except as an order to slack the rope with his hands, acting in such a manner as should be safe and proper. Where he should place his hands and how he should work with them was left to his own choice.

We are of opinion that the evidence would not justify a finding of negligence on the part of the employer, or of due care on the part of the plaintiff, and that the latter cannot recover for the results of a risk which turned against him because of the position which he chose to assume in doing a work the general danger of which was obvious, and the degree of which varied with the position which the plaintiff chose to take. He certainly had as good an opportunity as his master of ascertaining and obviating the danger for himself. Haley v. Case, 142 Mass. 316, 322. Linch v. Sagamore Manuf. Co. 143 Mass. 206. The order did not contain an injunction to hurry, and the danger was obvious and one growing naturally out of the work in hand, thus differentiating the case from that of Millard v. West End Street Railway, 173 Mass. 512, cited for the plaintiff.

Exceptions overruled.

EDWARD W. ARKLAND vs. TABER-PRANG ART COMPANY.

Hampden. September 23, 1903. - October 20, 1903.

Present: KNOWLTON, C. J., MORTON, BARKER, HAMMOND, & LORING, JJ.

Negligence, Employer's liability.

In an action by a workman in a picture frame factory against his employer, for the loss of his arm cut by a band saw, it appeared, that the plaintiff was twentyseven years of age, had worked for six years about wood working machines, and knew what a band saw was, although he had never worked on one, that, on the first day of his employment by the defendant, by direction of the foreman he had marked out some patterns on wood and had taken them to the man who was working the band saw, when in laying them down on the table, through which the band saw passed, his arm came in contact with it, and he was injured. Held, that the danger of getting hurt if he came in contact with the band saw was a risk incident to the plaintiff's employment which he assumed, and that the defendant owed the plaintiff no duty to guard the saw or to change its position, and had no reason to suppose that the plaintiff needed any warning or instruction in regard to it. Semble, that the plaintiff was not in the exercise of due care.

TORT by a workman in a picture frame factory for the loss of his arm by coming in contact with a band saw, with counts respectively alleging failure to furnish the plaintiff with a safe and suitable place to work, failure to warn the plaintiff of the dangers of his employment, negligence of the defendant's superintendent, and a defect in the defendant's ways, works and machinery. Writ dated August 26, 1901.

In the Superior Court the case was tried before Fox, J. At the close of the plaintiff's evidence, the judge ruled that there was no evidence on which the case should be submitted to the jury, and ordered a verdict for the defendant. The plaintiff alleged exceptions.

The band saw in this case consisted of an endless steel band from one quarter to three eighths of an inch wide, having saw teeth on one edge, running over two large wheels, one some distance above the working table and the other beneath it, the band passing through a slot in the table.

A. L. Green, for the plaintiff.

W. Hamilton, (W. H. Brooks with him,) for the defendant.

MORTON, J. This is an action for personal injuries, the loss of an arm, while in the defendant's employ. At the close of the plaintiff's evidence the judge directed a verdict for the defendant, and the case is here on exceptions to this ruling. Exceptions were also taken to the exclusion of certain questions, but they have not been pressed and we therefore treat them as waived. We think that the ruling was right.

The plaintiff entered the defendant's employ on the morning of the day on which he was injured. He was set to work on a machine called a shaper, shaping picture frames. This machine was situated near a band saw. He finished that job and was then told by the foreman to mark out some patterns on wood and when he had marked out the required number was directed by the foreman to take them to a Mr. Sanderson who was working at the band saw. He did so and in some way in laying them down on the table of the band saw, his arm came in contact with the band saw and he received the injury complained of. He was twenty-seven years of age and testified on direct examination that he had worked around wood-working machines, shapers, and so on" and on cross-examination that he "had worked about wood-working machinery about six years in all." He knew what a band saw was though he had never worked on one, and was not familiar with band saws.

When the plaintiff entered the defendant's employ he assumed the obvious risks incident to it, and the danger of getting hurt if he came in contact with the band saw was one of them. The defendant owed him no duty to fence or guard the band saw, or to change its position with reference to that of the shaper on which he was set to work. Stuart v. West End Street Railway, 163 Mass. 391. Hale v. Cheney, 159 Mass. 268. The defendant had no reason to suppose that the plaintiff needed any warning or instruction in reference to the danger of injury from coming in contact with the band saw and therefore was not negligent in failing to warn the plaintiff of the danger. For aught that appears the plaintiff was at least of average intelligence, and, as he told the defendant's superintendent, had worked about wood-working machines, shapers and so on though he had never operated a band saw. He was an experienced workman who had been employed amongst wood-working machinery and

there was nothing in his previous history or age to show the defendant that he required any warning or instruction in regard to the band saw. Sanderson was at work at the band saw when the plaintiff laid down the patterns on the table, and the accident would seem to have been due to inattention on the plaintiff's part to the proximity of the saw; in other words to a want of due care on his part.

The result is that the exceptions must be overruled.

So ordered.

MARY MANNING vs. CITY OF SPRINGFIELD.

Hampden. September 23, 1903. October 20, 1903.

Present: KNOWLTON, C. J., MORTON, BARKER, HAMMOND, & LORING, JJ.

Municipal Corporations.

A city is not liable for damage caused by the insufficiency of its system of sewers.

TORT, by the owner of certain real estate on Ferry Street in Springfield, against that city for damages alleged to have been caused by the defective construction and improper maintenance and operation of the sewer in Ferry Street and the pipes and drains connecting there with. Writ dated March 15, 1901.

In the Superior Court Mason, C. J. ruled that the action could not be maintained and ordered a verdict for the defendant. The plaintiff alleged exceptions.

J. L. Doherty & W. G. Brownson, for the plaintiff.

H. A. King, for the defendant.

KNOWLTON, C. J. This is an action of tort to recover for injuries to the plaintiff's real estate from water that came in upon it on two occasions, through the drain pipe connected with the sewer, and from the street, proceeding from the sewer out through a manhole in front of the plaintiff's house. The drain pipe had an opening into the plaintiff's yard which was considerably below the level of the street, and into two sinks in the

lower tenements of the building. The plaintiff's drain had been connected with the sewer since 1878 or 1879, but no water had ever come back through it until these occasions, the first of which was in March, 1901. At these times there was, for a few hours, a very heavy fall of rain, some of the witnesses said heavier than had ever been known before. The ground was then frozen, and the sewers all over the city were heavily charged with water. There was no evidence that the sewer in front of the plaintiff's house, or the sewers connected with it, were defective in construction, or obstructed or out of repair, and there was no evidence that any of these sewers was authorized or established, otherwise than by tribunals whose members acted as public officers under the statutes. The evidence all tended to show that the defect in the sewers, if there was a defect, was in the system, which did not carry off immediately so great and rapid an accumulation of surface water as came at these times.

For this system the city in its corporate capacity was not responsible, for it was established by officers acting judicially under the authority of law. It has often been decided that, for faults or imperfections in its system of sewers, a city or town is not liable, although it is liable for negligence in the work of construction, or in the maintenance or repair of sewers. Child v. Boston, 4 Allen, 41. Merrifield v. Worcester, 110 Mass. 216, 221. Buckley v. New Bedford, 155 Mass. 64. O'Brien v. Worcester, 172 Mass. 348, 353. Hewett v. Canton, 182 Mass. 220, 224. Johnston v. District of Columbia, 118 U. S. 19. Under this rule, upon the evidence before the court, the presiding judge rightly directed a verdict for the defendant.

Exceptions overruled.