The plaintiff’s complaint was dismissed at the close of his evidence, and he is entitled to every legitimate inference from the evidence upon this motion for a new trial. The question presented by the evidence, viewed in this light, is whether a servant may maintain an action in tort for damages resulting from negligence on the part of the master in failing to furnish safe tools and appliances, where the servant, having full knowledge of the defects, is induced to continue work by the master’s promise to soon supply safe and proper tools and appliances, and meanwhile indemnify the servant for any incidental injury. The learned trial court has held, by dismissing the *471complaint, that this may not he done, and the plaintiff appeals to this court.
The plaintiff was a carpenter, forty-four years of age, and had worked at his trade for twenty-five years. The complaint alleges that on the 25th day of May, 1899, the plaintiff was in the defendant’s employ, engaged in running a circular saw, and that the defendant, in violation of his duty, furnished him with an unsafe and defective saw, which was liable to wabble or buckle, and that the defendant had notice of the defect. It further alleges that the defendant personally and by his superintendent told him to go on and use said saw; that another saw had been ordered to take the place of the one in use, and that it would be all safe and right to use said saw until the other one was received, “ assuring and giving plaintiff to understood* that if any harm should come to him by use thereof, while in the performance of his duties under the directions of the defendant and his foreman and superintendent, that he, the defendant, would be responsible for any damage that should come to him while so performing his duties.” The complaint also alleges that the plaintiff relied upon said assurances, and while in the performance of his duties in using said saw, it buckled by reason of its defective condition, and threw a piece of wood in such a way as to strike plaintiff’s hand and bring it in contact with the saw, by reason of which he was seriously injured, etc. The evidence upon the trial shows that the plaintiff did not rely upon the assurances of the defendant as to the safety of the saw, whatever he may have done in respect to the alleged promise to compensate him for any damages he might suffer, for he testified in detail in reference to the saw, and that he repeatedly called attention to it and complained that it was dangerous. He understood, or claims to have understood, the dangers incident to the operation of a defective saw, such as was given him by the master, and the theory of the action appeal's to be that while the plaintiff, knowing the defect as well or better than the master, could not recover under ordinary circumstances, that the promise of the master to compensate him for any injuries he might receive operated as a waiver on the part of the master of the plaintiff’s contributory negligence or assumption of the risk, and these defenses being eliminated from the case, the plaintiff is enti*472tied to recover for the tort of the master in neglecting to provide reasonably safe tools and appliances for the performance of the work for which the plaintiff was engaged. Whether the plaintiff recovers upon the tort or upon the contract is not very material; the mere form of the remedy need not cause us any very serious concern, but whether the plaintiff has a right of recovery at all is important, and we ought not to enlarge the law of negligence without serious consideration of the consequences which are to follow.
The broad question is presented in this case, by the conceded facts, whether a man, with full knowledge that he is incurring for himself and his fellow-laborers a danger not legitimately connected with the work in hand, may rely upon the promise of the master that he will be indemnified for injuries resulting from this increased and unnecessary danger, and, upon the injury resulting, be permitted to recover upon this promise, either in an action in tort or upon the contract. The rule that a party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, is subject to the very important limitation that it must be a matter exclusively of private right, and involving no considerations of public policy or morals. (Sentenis v. Ladew, 140 N. Y. 463, 466, and authorities there cited.) It certainly cannot be said that the maiming or killing of an individual is a matter exclusively of private concern, or that considerations of public policy are not involved in a contract which has for its object the reckless assumption of risks ou the part of one individual, whose conduct may involve the lives and limbs of many. Suppose, for instance, that in a great factory the master knows that the boilers are defective; that their operation is a menace to the lives of all of his employees, and that this fact is known to the engineer. Is it possible that the master, by a bargain with the engineer to take care of him in case of an accident, may continue to use these boilers without involving any considerations of public policy or morals, or that the fellow-employees may be subjected to the risks of the negligence of a fellow-servant ? Society is interested in the preservation of the life, limb and property of every member of the State, and its laws are designed not merely for the protection of the parties to a litigation, but for the general interests of justice. (Sentenis v. Ladew, supra, 467.) When the rule was established that the servant could not *473recover for the neglect of the master to provide reasonably safe tools and appliances where the danger was known and appreciated by the servant (Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 161, and authorities there cited), the public policy of the State was declared; it was intended that the right of the individual to recover should depend upon his own exercise of due care, and this was necessary not only for his own preservation, but for the safety and welfare of his fellow-laborers and third persons generally. The law makes it the duty of the master to provide a reasonably safe place for the servant to work ; makes it his duty to provide reasonably safe machinery, tools and appliances with which the labor is to be performed, and it imposes upon the servant the reciprocal duty of using reasonable care in the use of these appliances. The master and servant, by an agreement between themselves, cannot change the law, and the servant cannot, under a promise of the master to protect him, go on operating a machine which the servant knows to be in a defective and dangerous condition, involving risks not necessarily incident to the performance of the work in hand, both to himself and third persons, and retain his right to recover for the negligence of the master in providing such defective machinery. It cannot be the policy of the law to encourage a reckless disregard of human life by permitting a person who has knowledge of the dangers to which he is unlawfully exposed, to maintain an action in tort against the wrongdoer who has promised, as a condition of his continued service under dangerous circumstances, to take care of him in case of injuries resulting. Contributory negligence is not an affirmative defense in an action for negligence ; it is a condition precedent to the right of recovery at all that the plaintiff should show to the court that he has been free from negligence producing the accident, and the plaintiff and defendant cannot, by an agreement between themselves, so change the law as to give a right of recovery without establishing the facts necessary to such recovery. In other words, the master, by contracting with the plaintiff to continue at work, notwithstanding his neglect of a duty imposed by law, cannot give jurisdiction to the court to render a judgment in an action for negligence where the evidence does not show freedom from contributory negligence on the part of the plaintiff any more than the consent of parties could *474give jurisdiction where the statute prohibited a judge from sitting in a cause if he was related to a party. In such a case it has been held that even consent could not confer jurisdiction, because tiie law was not designed merely for the protection of the parties to the suit, but for the general interests of justice. (Oakley v. Aspinwall, 3 N. Y. 547; Sentenis v. Ladew, supra, 467.) The law, by requiring the plaintiff to show his freedom from contributory negligence, has imposed upon him the duty of being free from negligence, not only that his own life and limbs may be preserved to society, but that he may not expose his fellow-servants and third persons to the dangers which must result from collusion between master and servant in the use of dangerous and improper machinery and appliances, and upon the broad ground that the contract alleged between the plaintiff and defendant is against sound public policy, the exceptions should be overruled and judgment entered for the defendant.
Plaintiff’s exceptions sustained and motion for new trial granted, costs to abide the event.
Sie.