*369(Besponse to application for re-hearing.)
COLEMAN, J.The evidence is conclusive and without conflict that the plaintiff voluntarily, and without objection continued in the employment of the defendant for a period of twelve months in the almost daily use of, and with a full ' knowledge of the defect in the ways, works and machinery, alleged to have caused the injury. Under this proof the, court held, that the plaintiff was guilty of contributory negligence. "We are now asked to revise this conclusion. Considered in connection with the evidence, as a general proposition of law, the rule asserted is sustained by an overwhelming array of authorities.
In the case of Rush v. Missouri Pacific R. R. Co., 28 Amer. & Eng. Railroad Cases, 484, the court uses this language : “ There are cases where a servant kn'owing the danger may nevertheless recover; but this is not one of the cases; usually where some instrument or appliance has.become unsafe from use or otherwise, and the danger from its use is not imminent or obvious, the servant may continue in his master’s employment, and use it for 'a short time, with the expectation that the master will restore the defective instrument or appliance to its former condition. Also when the master has been informed with regard to some defect in some instrument or appliance, and he agrees to remedy the defect, the servant may continue for a reasonable time in the master’s employment, so as to give him an opportunity to fulfil his promise. Also when the danger is one to which the servant is not exposed in the ordinary course of his employment, but one which he is at the time requiréd' immediately to encounter by a special command by his master or of a superior servant, without time for reflection or choice on the part of the servant, he may obey the command without being guilty of contributory negligence, or without forfeiting his right to recover in case injury results. But not one of these cases is the present case. The plaintiff’s intestate could have had no hope in the. present case that the railway’s tracks would ever be changed; there was no promise that they would be changed; they were just as they were when originally constructed; and in the ordinary course of his employment the plaintiff’s intestate was using them every day, and knew that he must so use, them every day.” Under the evidence it was held to be a question of law for the court, and that as to plaintiff the defendant was not guilty of culpable negligence.
*370In the case of O'Rorke v. Union Pacific Railway Co., 22 Fed. Rep. 189, Brewer, J., uses the following language: “He [the employe] has the right to wait a reasonable time; to consider the circumstances of the case, and to give notice to his employers that he is in danger; time enough to see whether the employer means to have the defect remedied ; time enough to see the general way in which he conducts his business; and if he finds that his employer intends to use machinery with defects, or to conduct his works in a dangerous way ; finds that is to be his general habit; finds that, after he has been notified, he still intends to conduct his business in that way, and then goes on and continues in the work, it is fair to assume that he takes the risk.”
In Richards v. Rough, et al., 53 Mich. 212, the general proposition is stated as follows : “ A servant who continues without objection to use machinery which he has found to be unsafe, assumes the risk, and can not recover for injuries which he may receive in consequence of doing so.”
The same rule prevails in Wisconsin. Dorsey v. The Phillips & Colby Construction Co., 42 Wis. 583. Many authorites from other courts might be cited.
This State has declared the law in the same unmistakable terms. In Eureka Co. v. Bass, 81 Ala. 201, it is said; “ If the employee, while engaged in the service, acquires knowledge of any defect in the materials, machinery or instrumentalities used, and notice thereby of an increased risk or danger, and afterwards continues in the service without objection or, notice to the employer, he assumes the increased risk himself; but he may notify the employer of the defect, and continue in the service for a reasonable time relying on the employer’s promise to remedy the defect; yet, if the defect is not remedied within the promised time, his further continuance in the service is at his own risk, and he is guilty of contributory negligence.”
In the case of the L. & N. R. R. Co. v. Hall, 87 Ala. 708, which arose under the employer’s act, the doctrine was distinctly declared, that although the defendant may have been fuilty of negligence in the erection and construction of its ridge, if plaintiff knew of the danger, and failed to exercise due care to avoid the danger, and was injured, he would be guilty of contributory negligence. This rule also prevailed in the English courts.
It is contended, however, that the rule as here stated has been changed by statute, and that under the employer’s act, section 2590 of the Code and sub-sections, the employe does not assume the responsibilities of injuries caused by defects *371in the condition of the ways, works, machinery or plant connected with or used in the business of the master or employer, although known to the employe, and that under the statute he may remain with impunity in the employment of his employer for any length of time, after he becomes aware of the danger, provided the master or employer is aware of such defect; and we are referred to the case of Mobile & Birmingham R. R. Co. v. Holborn, 84 Ala. 133, and the case of Highland Ave. & Belt R. R. Co. v. Walters, 91 Ala. 435. The case of Holborn, 84 Ala. supports the argument and position of appellee, and if that, decision furnishes a proper construction of the employer’s act as found in section 2590 of the Code, the opinion rendered in the case under consideration is wrong, for in the Holborn Gase it is held, that the rule as declared in the Eureka Co. v. Bass, supra, which we have cited, is abolished. *
The employer’s act, as found in section 2590 and subdivisions, is a substantial, if not an exact, copy of the English act of 1880. This court is not finally concluded by the decision of any other State court or the British court, in their construction of a similar statute, but the opinion of learned courts upon similar questions are entitled to great weight, and this is especially true when the statute, from which ours was copied, had been construed prior to its enactment by our legislature. Armstrong v. Armstrong, 29 Ala. 538.
In the case or Griffiths v. London & St. Katherine Docks Co., 13 Queen’s Bench Division 259, it is' said: “If the danger is on which was known to the master and not to the servant, the knowledge of the master and the want of knowledge of the servant make together a cause of action, and as it is necessary that these two things should exist in order to form a prima facie case, it is necessary that they should be shown to exist in the statement of the claim.”
The case of Weblin v. Ballard, reported in 17 Queen’s Bench Division, 122, cited in Holborn Gase, supra, supports the conclusion reached in that case; and if the case of Weblin v. Ballard had remained in force as the proper construction of the statute, we would be bound to hold that the construction given by this court to the statute in the Holborn Case was the same as that given by the English courts. In the same volume, 17 Q. B. D., p. 414, the case of Thomasv. Quartermaine, which involved the same question, came up for consideration, and the reasoning of the court tended greatly to weaken the decision of Weblin v. Ballard as an authority. The case of Thomas v. Quartermaine was appealed, and in 18 Q. B. D. 685, the case of Weblin v. Ballard
*372was virtually, though not in express words, overruled. The court held in Thomas v. Quartermaine, 18 Q. B. D. 685, that the doctrine of “volenti non fit injuria” (“that to which a person assents is not esteemed in law an injury.” Broom’s Legal Maxims) applied under the employer’s act of 1880. Bowen, J. uses this language : “Knowledge is not a conclusive defense itself. But when it is a knowledge under circumstances that leave no inference but one, viz., that the risk has been voluntarily encountered, the defense seems to be complete.” Lord Esher, M. R., dissented from the conclusion of the court. The question arose again in the case of Yarmouth v. France, 19 Q. B. D. 647, and it was held, Lord Esher, M. R. rendering the opinion, “that upon the facts .a jury might find the defendant to be liable, for there was evidence of negligence on the part of the foreman and the circumstances did not conclusively show that the risk was voluntarily incurred by the plaintiff.” In this case there was also a dissenting opinion by Lopes, J., not as to the law, but upon the facts, the latter Judge holding “there Avas no evidence for the jury of the defendant’s liability, inasmuch as the facts showed that the plaintiff, with full knowledge of the risk to which he was exposed, had elected to continue in the defendant’s employment.” In this case Lord Esher, M. R. stated that the doctrine “volenti non fit injuria” applied under the employer’s act of 1880. His conclusion of the opinion is in the following language: “I see nothing in the decision in Thomas v. Quartermaine to prevent the plaintiff from recovering in this case, unless the circumstances were such as to warrant a jury in coming to the conclusion that the plaintiff, freely and voluntarily, with full knoweledge of the nature and extent of the risk he ran, implidely agreed to incur it.” In the same case Lindley, J., after referring to the case of Thomas v. Quartermaine and the sections of the act, held that “the maxim volenti non fit injuria is applicable, and that if a workman, knowing and appreciating the danger and risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application. Those principles in my opinion are perfectly sound.”
The act came up for consideration again in the case of Osborn v. London & North Western Railway Co. 21 Q. B. D. 220, in which the principles of law declared by Lord Esher, . M. R. in the case of Yarmouth v. France, supra, by Bowen, L. J. in Thomas v Quartermaine, supra, were re-affirmed. We Rave been unable to find any later adjudication by the English courts construing the English Employer’s Liability *373Act of 1880, and it would appear as the settled construction by the English courts, that mere “knowledge is not a conclusive defense in itself. But when it is a' knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encountered, the defense is complete.” That “plaintiff may recover unless the circumstances were such as to warrant a jury in coming to the conclusion that the plaintiff, freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.” It is held by some of the English Judges that these principles qualify to some extent the doctrine-of “volenti non fit injuria,” and as thus qualified the rule applies under the Employer’s Liability Act.
The principle is clearly laid down by Roberts & Wallace in their work on the “Duty and Liability of Employers,” pp. 136, 146, 160, 161, 240 ; and in Buswell’s work on the “Law •of Personal Injuries” the same conclusion is reached. §§ 207, 208, 209.
Many of the States have statutory provisions in regard to the duties of employers, but so far as we have been able to ascertain, none of the States have a statute similar to ours except the State of Massachusetts. Section 5 of the Employer’s Act of the State of Massachusetts — See Acts 1887, Chapter 270, page 899 — is as follows : “An employe, or his legal representative, shall not be entitled, under this act, to any right of compensation or remedy against his employer in any case, when such employe knew of the defect or negligence, which caused the injury, and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer, who had intrusted to him some general superintendence.” This section omits the provision in our statute, and in the English statute, “unless he was aware that the master or employer, or such superior, already knew of such defect or negligence.” But this difference in phraseology is immaterial, as the law, without this • provision, would not require the employe to do a useless thing, and the Massachusetts courts do not seem to have regarded the difference as material — holding that their act was “copied, with some variation of detail,” “the intention was merely to abridge the model and make it more compact,” and “therefore, [savs the court] it is proper, if not necessary, to begin by considering how the English act had been construed before our statute was enacted.” The court then cites the cases to which we have referred. Ryalls v. Mechanics’ Mills, 150 Mass. 190. The precise question, which *374we are considering, did not arise in this case. In the case of Mellor v. Merchants’ Manufacturing Co., reported in same volume (150 Mass. 362), the rule declared in Thomas v. Quartermaine, 18 Q. B. D. 685, and Yarmouth v France, 19 Q. B. D. 654, that the Employers Liability Act did not prevent the proper application of the maxim, volenti non fit injuria, was approved. In the subsequent case of Malcolm v. Fuller, 152 Mass. 167, a charge was given by the trial court in favor of the defendant, in which the maxim was applied, and though this charge was not open to revision, it is quoted in the opinion, with the statement, “that it was sufficiently favorable to the defendant,” citing the case of Mellor, supra.
It is very clear, that so far as the authorities, outside of this State, go, the rule declared in the case of The Eureka Co. v. Bass, 81 Ala. 200, was not abolished by the Employers Liability Act. Possibly, it was somewhat modified, but as we understand the rule, “volenti non fit injuria,” as applied in the particular cases cited from the English and Massachusetts courts, there has been in fact no material modification.
z A more careful examination of section 2590 of the Code, in connection with the qualifying clause, leads us to the conclusion that our construction of the act, as given in Hoiborn Case, supra, was not the proper one. Without the qualifying clause, it is evident there is nothing in the act which, of itself, would abolish the rule of “volenti non fit injuria” as declared in 81 Ala., supra. The qualifying clause was not intended to enlarge the rights of the employe, or extend the liability of the employer, or take away the defense of contributory negligence. It is obscure and involved, but its terms would indicate an intention to restrict the employer’s liability. It says : “But the master or employer is not liable under this section, if,” &c. It does not provide for an additional liability under certain conditions; but the employer is not liable, notwithstanding he may have been culpably negligent in failing to discover certain defects, and negligence, “if the servant or employe knew of the defect or negligence, and failed, in a reasonable time, to give information,” &c. The reasoning of Bowen, J. on this point, in the case of Thomas v. Quartermaine, 18 Q. B. D., supra, is convincing.
It would seem that the legislature, by a statutory enactment, recognized the application of the maxim of “volenti non fit injuria,” as declared by the courts, and out of abundant caution, lest the statute might be construed to give a *375cause of action absolutely when tbe defects or negligence specified in the statute was the cause of injury, although the risk of such defect and negligence was voluntarily and knowingly assumed by the employe, added the proviso above referred to. The Case of Holborn, 84 Ala. 133, was materially modified by the subsequent case of Highland Ave. and Belt R. R. v. Walters, 91 Ala. 435. But we are of opinion that the proper construction of the act leaves in force the rule which prevailed before the adoption of the act, and the rule as declared by this court in the case of The Eureka Co. v. Bass, 81 Ala., supra, and of Hall v. L. & N. R. R. Co., 87 Ala. 717, 720, continues in force under the Employer’s Act. So far as the Holborn Case and the Walters’ Case conflict with these conclusions, they are overruled.
It follows that the application for a rehearing must be denied.