We are not able to see why'the principles of law claimed by the defendants in the second and third heads of their request to the court for its charge to the jury are not correct, and why as such they should not have been allowed by the court.
The judge, after stating to the jury what these requests contained, proceeded to say, that although the English law and that of some of the states might be as claimed by the defendants’ counsel, it was otherwise in the state of Connecticut. In this we think the judge has fallen into an error, as we know of no such distinction between the English and our own law. We find nothing in the principles of the English decisions to warrant such a conclusion, but, on the contrary, the doctrine of the English cases seems to us to be just and reasonable.
The action is obviously founded in a supposed neglect of the defendants, which implies a breach of duty or legal culpability towards the plaintiff, an employee in their business. Not that the defendants merely omitted to furnish their cotton-mill with the most approved machinery, or machinery which would be operated with less hazard; for every man may judge how he will carry on his own business, and workmen having knowledge of the circumstances must exercise their judgment whether they will enter or continue in his service ; but, as we regard the law, there must be a culpable neglect ; an omission of duty towards an employee conversant with the machinery in use, and the hazards attending the prosecution of the business.
In one part of the charge the judge seems to have recognized the correctness of the defendants’ claim; but if so, it was in a form so general that the charge does not meet the specific claim which they made, and therefore is not adequately responsive to it. He should have charged, upon the question of negligence, that the rule of law was as specifically *558claimed by the defendants, instead of repudiating it as foreign and inapplicable in this instance. Had this course been followed it is quite possible that the verdict would have been different from what it was. The instruction to the jury ignores the clear distinction between an employee having knowledge of the business, and one having no knowledge; for the judge left the question of negligence to depend on the want of ordinary care, which, though well enough as a rule in ordinary cases, is not sufficiently responsive to the claim of the defendants; certainly not without explanation and discrimination.
The employee here was acquainted with the hazards of the business in which he was engaged, and with the kind of machinery made use of in carrying on the business. He must be held to have understood the ordinary hazards attending his employment, and therefore to have voluntarily taken upon himself this hazard when he entered into the defendants’ service.
Every manufacturer has a right to choose the machinery to be used in his business and to conduct that business in the manner most agreeable to himself, provided he does not thereby violate the law of tlie land. He may select his appliances, and run his mill with old or new machinery, just as he may ride in an old or new carriage, navigate an old or new vessel, or occupy an old or new house, as he pleases. The employee having knowledge of the circumstances, and entering his service for the stipulated reward, can not complain of the peculiar taste and habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service. This is just the distinction claimed by the defendants as the law of the case, but the court did not admit its correctness as the law of Connecticut, though conceding it to be the law of England.
Doubtless it is true that no man may, in conducting business, unnecessai'ily and wantonly disregard the rights of other people, whether employees or strangers; but such is not the case before the court. An employee having knowledge can not claim indemnity except under particular circumstances. He is not secretly or involuntarily exposed, and likewise is *559paid for the exact position and hazard he assumes ; and so he may terminate his employment when, from unforeseen perils, he finds his reward inadequate or unsatisfactory.
We need hardly remark, that as this distinction rests upon knowledge in the employee, it is quite obvious that he must have mind sufficient to acquire the necessary knowledge. How the fact was in the present case, (the plaintiff being ten years old,) we will not undertake to decide. If the fact was important we think it should have been submitted to the consideration of the jury.. Nor will we say whether it is proper or not to hold that a child of sufficient age to be employed in the business of a mill for reward, is mature enough to appreciate the hazards of his employment. We make the suggestion for what it is worth should the cause come to another trial.
The cases cited from the books are quite harmonious with the views above expressed. In Priestly v. Fowler, 3 Mees. & Wels., 1, the defendant was sued by his servant injured by the breaking down of a van, in which he and a fellow servant were carrying goods for his master, by reason of its weakness and excessive loading. The defendant was held not to be liable. The court said that the principal was under no implied obligation to his servant for the sufficiency of the van, as he had no more knowledge of its condition than the servant himself. In Seymour v. Maddox, 5 Eng. L. & Eq., 265, the defendant, proprietor of a theater, was sued by an actor for an injury suffered through an insufficient lighting of the stage, and an unguarded opening in the floor, into which he fell and was injured. He did not recover in the suit; the court holding that, as he was not obliged to enter or remain in the defendant’s service if he was not satisfied with the existing condition of things, he voluntarily exposed himself to the danger, of which he had the same knowledge as the defendant himself. In Williams v. Clough, 3 Hurlst. & Norm., 258, the defendant was sued by his servant, who fell through a ladder used in a brewery. He did not succeed in his action. The servant was regarded as having the same means of knowing the character of the ladder that his master had, and as *560bound to judge for himself of the danger of climbing it. This is the language of Barnwell, Baron, in the Exchequer: “ I abide by the opinion I expressed in the case referred to, that a master can not be held liable for an accident to his servant while using ordinary care in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master.” The same is held in Griffiths v. Gidlow, id., 648. In Patterson v. Wallace, 28 Eng. L. & Eq., 48, a collier was injured by the falling of a loose stone from the top of the colliery. This case, though cited by the plaintiff’s counsel, contains the same doctrine as the other cases already referred to. The point here made was not important there, for that case turned on two questions of fact, and a new trial was ordered that they might be submitted to the jury, having been improperly taken from them by a nonsuit, as the court decided. So in the very late case of Dynen v. Leach, 40 Eng. L. & Eq., 491, decided in 1859, where an employee was hurt by the falling of a weight, we find substantially the same doctrine.
From the best consideration I can give the English cases, I am satisfied that the law in England is as expressed by Barn-well, Baron. I believe an employee can not recover for an injury suffered in the course of his business from defective machinery, unless the employer knew or ought to have known the fact, and the employee did not know it or had not equal means of knowing it.
The cases in this country do not hold a different doctrine, and some of them are very clear and decided in their language.
I will not spend time in commenting on them, but only refer to a few of them. Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio S. R., 541. Coon v. Utica & Syracuse R. R. Co., 6 Barb., 231. Farwell v. Boston & Worcester R. R. Co., 4 Met., 49. Hayes v. Western R. R. Co., 3 Cush., 270. Albro v. Agawam Canal Co., 6 id., 75.
Another question arises on the motion in arrest, as to the sufficiency of the declaration. We are inclined to think that the second count is sufficient, but that the first one is not. If we strike out of the first count the allegation of “ duty,” *561which is not issuable without the facts on which it rests, there does not appear to be enough left to show negligence in the defendants. Nor is there any averment that the defendants had notice of the danger complained of and that the plaintiff had not, while the plaintiff admits he was an employee in the defendants’ mill. The second count is more full in its allegations, and we are inclined, as we have said, to hold it sufficient. The cases already noticed, of Priestly v. Fowler, and Seymour v. Maddox, present questions very similar to the one before us. They were motions in arrest, and the motions prevailed.
We think there is no force in the defendants’ objection that the plaintiff has misconceived his action. An action sounding in tort is clearly the proper form of action.
We advise a new trial.
In this opinion the other judges concurred.
New trial advised.