We can not agree with the defendant’s counsel that if an employee operates' a machine which is lacking in safety appliances which have come into general use, that this *362is an “assumption of risk” which releases the employer from liability. That would be simply to hold that if such appliances are not used the defendant is negligent, but if the pressure of circumstances forces some rmfosrtunate man to accept service with such machine it releases the employer. This negatives tire liability of the employer by the very fact of his negligence, and that as to the class most needing protection, those whose urgent need compels them to take work wherever they can get it. As was said in Sims v. Lindsay, 122 N. C., 678: “It is not to he held as a matter of law that operatives must decline to work at machines which may be lacking in some of the improvements or safeguards they have seen upon other machines, under penalty of losing all claims for damages from defective machinery. It is the employer, not the employee, who should he fixed with knowledge of defective appliances, and held liable for injuries resulting from their use. It is only where a machine is so grossly or clearly defective that the employee must know of the extra risk, that he can he deemed to have voluntarily and knowingly assumed the risk.”
To illustrate — if a railroad company fails to use automatic couplers it is negligence per se. Troxler v. R. Co., 124 N. C., 189; Greenlee v. R. Co., 122 N. C., 977. If one should take service upon a railroad not having such appliances, this would not absolve the railroad from liability for its negligence in not using such life and limb-saving device. The doctrine of “assumption of risk” is more reasonable and extends no further than that if a particular machine has become injxired or dangerous, and the employee, seeing the danger, does not report its condition, hut goes on with his work in disregard of it, he assumes the risk. The. difference between “knowledge of the danger” in the first case (absence of safety-appliances which should he in use), and “assumption of the *363risk” (by working' without protest at a, machine which has become defective and dangerous), is pointed out among many other cases, in. a late decision in the- House of Lords, Smith v. Baker, App. Oases L. E. (1891), 325, in a discussion of the difference between the maxims “scienti non fit injuria” and “volenti non -jit injuria,” the former not being law, for which Lord Halsb-ury cites Bowen, L. L, in Thomas v. Quarterwine, 18 Q. B. D., 685, and Lindley, L. J., in Yarmouth v. France, 19 Q. B. D., 64-7, 660, and further cite-s from the latter case that even when an employee reports the defect, if he is told to go on with his work, and does so to avoid dismissal, a jury may properly find that he had not agreed to take the risk, and had not acted voluntarily in the sense of having taken the risk upon himself. Whereupon Lord ITals-bury sums up “in order to- defeat a plaintiff’s right to- recover bv the maxim relied on (volenti non fii injuria, anglice, ‘assumption of risk’), the jury ought to be able to- affirm that lie consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.” This has the weight of practical common sense, no matter from what, court it came, but with some, common sense has an added value- when it is found in a decision of the House of Lords. The distinction is wide between mere “knowledge of the danger,” and “voluntary assumption of the risk.”
Besides, “assumption of risk” is a matter of defense, anal-ago-us to-, and indeed, embraced in, the defense- of “contributory negligence,” Rittenhouse v. Railroad, 120 N. C., 544, and it is an erro-r to direct a nonsuit. Cox v. Railroad, 123 N. C., 604. The jury, as Lord Halsb-ury says, must pass upon the question whether the employee voluntarily assumed the risk. It is not enough to show merely that he worked on, knowing the danger.
But the plaintiff, in fact, failed to make out negligence on *364the part of the defendants upon the evidence because he failed to show that the safety appliance which he alleges would have prevented the injury was in general use, and, in fact-, he shows the contraiw. The rule laid down in Witsell v. Railroad, 120 N. C., 557, is not that it is. required that the latest improved appliances be provided, but only that “It is negligence not to adopt and use all approved appliances and safeguards which are in general use.” This has been approved, Greenlee v. Railroad Co., supra; Troxler v. Railroad, supra, and in other cases. The intimation that upon the evidence the plaintiff could not recover was correct, but not for the reason given by the Judge.
It is unnecessary, in this view, to consider the other ground assigned that the evidence did not establish any contractual relation between the plaintiff and defendants. It may be said, however, that as a general rule the negligence of an independent- contractor is not chargeable to his employer. Engle v. Eureka Club, 137 N. Y., 100; 33 Am. St. Rep., 692, and note.