(Dissenting). — I. The opinion proceeds upon the .theory that the case involves nothing more than the construction of Sectipn 4999-a3 of the Code, being Section .1 of Chapter 219 of the Acts of the 33d General Assembly; although it assumes that defendant’s liability is predicated primarily upon Sec. 4999-a2, a safety appliance act passed by the 29th General Assembly, known as Section 2 of Chapter 149. The admitted effect of the holding of the majority is that, where the property, machinery or appliance of an employer is defective, or out of repair, or where it is the duty of the employer, from the character of the place or the work, to furnish reasonably safe machinery, appliances or place to work, an employee shall not be deemed to have assumed the risk by continuing in the prosecution of the work growing out of any defect of which the employee had knowledge, when the employer also had knowledge, except when, in the usual course of his employment, it was the duty of the employee to make the repairs or remedy the defect, and not then unless the danger from continuing in the employment was imminent and to such an extent that a reasonably prudent man would not have continued with the prosecution of the work. The last sentence of the act is not considered by the majority, and the fact that the negligence of the defendant in this ease may have been a violation of the factory act is apparently regarded as of no importance. It is largely because of these facts that I am impelled to register a dissent; for the opinion is an authority for the proposition that, no matter what the negligence of the employer, the employee does not assume the risk unless it was the duty of the employee himself to repair the machinery by which he was injured, or remedy the defect, no matter what it may have been, and not then unless the danger was imminent and the hazard so great that a reasonably prudent person would" not have continued in the work. Shortly stated, the rule announced by the majority is this: *588An employee working about defective machinery, or in any unsafe place, although it may have been his express duty by his contract of employment to make the necessary repairs or remedy the defect, and he is himself guilty not only of breach of contract but also of negligence, may entirely disregard his duty to his employer, fail and neglect to repair the defective machine or to remedy the defect, whatever it may have been, continue to work about and with the defective machine or appliance and still recover from his employer, .unless the danger was imminent and so hazardous that a reasonably prudent person would not have continued in the prosecution of the work. I cannot believe that the legislature intended to so change the law as it theretofore existed, and as it now exists in all other matters, as to allow one to thus take advantage of his own wro'ng and his own failure to do his duty to his employer. Moreover, according to the doctrine of the majority, no matter how imminent the danger or how great the hazard to an employee in continuing to work in a dangerous place or with defective machinery, he does not assume the risk incident thereto. Although he may know it is-practically suicidal to continue his work, still he cannot be held to assume the risk, unless it was his duty in the course of his regular employment to make repairs or remedy the defects. Could any greater premium be put upon an" employee’s negligence? If these be correct propositions of law, then an employee is largely relieved of any duty, and he cannot be held guilty of contributory negligence as a matter of law or even as a fact, for he is acting in obedience to the written law. I cannot believe that the legislature intended any such results. If it did, there was no occasion for the enactment of a workmen’s compensation act, and every employee about an industrial plant should refuse to come within its terms; for it is a delusion and a snare. I am convinced that the statute in question will not bear the interpretation placed upon it by the majority.
It is an elementary rule in the construction of statutes *589to consider the old law as it stood before the passage of the act, the mischief which the new was designed to remedy, the nature of the remedy and the true reason therefor. This rule is as old ¿s time and has proved a safe guide in the past. What then was the old law before the adoption of any statute upon the subject? In the absence of statute, a master is required only to exercise ordinary care to make .a reasonably safe place for his employees to work, to furpish them with reasonably safe machinery and appliances and to use reasonable care in keeping them safe. He is not required to furnish the latest, the best or the most approved machinery or appliances; nor is he bound to keep his place safe. The master has the right to manage and conduct his business according to his own judgment, even though other methods may be safer. As a corollary to this doctrine, it is universally held that a servant or employee, when entering the employ of his master, assumes all the risks which are incident to the employment which are obvious to him or which are discernible by the exercise of ordinary or reasonable care on his part, although the risks might have been obviated by the master. One who is compos mentis, in presenting himself for employment undertakes by his contract of employment to assume all the ordinary risks incident to his employment and cannot insist that the employer make any changes in his place of work 'or in the appliances for doing it, although the employer does undertake to use reasonable care in keeping in repair such appliances as he does use, and also agrees not to submit his employee to hidden dangers of which the employee is not advised and which are not discernible by the use of ordinary care. This is what has been denominated true assumption of risk.
As a part of the same ■ doctrine, it is held that if, as a part of his employment, the employee undertakes to make repairs or to keep the premises in a reasonably safe condition and fails to comply with his contract, he cannot hold his master liable for injuries growing out of the use of dangerous *590or defective articles, (1) because he and not the master is at fault, and (2) because he has elected to assume the risk growing out of the use of the dangerous appliance rather than to fulfill his contract with his master and make the repairs. No matter how stated in such circumstances, it is universally held that an injured employee cannot recover if the injury was due to his own failure to repair. Wahlquist v. Maple Grove Coal & Mining Co., 116 Iowa 720; Stroble v. Chicago, M. & St. P. R. Co., 70 Iowa 555. If, however, the master fails in his duty to furnish a reasonably safe place to work or proper tools and appliances or to keep the same in a reasonably safe condition, and the servant becomes aware of the defects and the dangers incident to their use, and, without making protest or complaint, he continues in his master’s employment, he is deemed to have assumed the risk incident to the use thereof, to the same extent as if the defects and dangers had existed at the time he entered his master’s employment and were assumed as one of the incidents thereof. Kohn v. McNulta, (Ohio) 147 U. S. 238 (13 S. Ct. Rep. 298); Greenleaf v. Dubuque & S. C. R. Co., 33 Iowa 52; Muldowney v. Illinois C. R. Co., 39 Iowa 615; Way v. Illinois C. R. Co., 40 Iowa 341; Lumley v. Caswell, 47 Iowa 159. But if, upon discovering the defect, the employee makes complaint to the master or his authorized agent, and is promised that repairs will be made, he may rest on that assurance and continue his employment without assuming the risk or being guilty of contributory negligence as a matter of law, unless, to his knowledge as a reasonably prudent man, the hazard in the use of the defective place. or appliance is so imminent and the peril so great that a reasonably prudent man would not have encountered it. After a promise by the master to repair, the servant may continue his work for a reasonable time thereafter for reparation to be made, without assuming the risk or ■being guilty of contributory negligence-as a matter of law, unless, as before stated, the hazard is imminent and to do so would be practically suicidal. Stoutenburgh v. Dow, Gil-*591man, Hancock Co., 82 Iowa 179; Pieart v. Chicago, R. I. & P. R. Co., 82 Iowa 148.
Again, if, without promise of repair, the master, after complaint, assures the servant that the place is safe, the employee is, as a -rule, justified in relying on this assurance and does not, as a rule, assume the risk. This latter is assumption of risk in its larger sense. But here again, if a duty devolves upon the servant, in virtue of his employment, to keep the place safe or to make the needed repairs, and he fails of his duty in this respect, he assumes the risk; for he, and not the master, is in default unless the master knows of' the defect and danger; but even if he does know and the servant makes no complaint, the master may assume that the servant prefers to assume the risk. It is always to be assumed, when a servant enters the employ of another, that he has the knowledge fitting him for the employment, understands the ordinary hazards connected therewith and is content to assume them; and the same doctrine applies if the defects and dangers become apparent to him as a reasonably prudent man after he has entered upon his employment; for, in the absence of statute, there is nothing’ contrary to law or public policy in the doctrine- of assumption of risk.
So much as to the common law upon the subject, which has been stated in ah oracular way, without the citation of numerous authorities. One of the mischiefs of the common law was the right of an employer to use almost any kind of machinery that his interests seemed to dictate, without reference to the life or the safety of his employees; and so not only the Federal Congress, but many, if not all, of the state legislatures-, have from time to time passed what have been denominated safety appliance acts, requiring the use of certain machinery or appliances, guards for machinery, pulleys and various other devices for the safety of employees. The same legislative bodies have also passed statutes changing the common-law rules with reference to assumption of risk and contributory negligence of employees — in some states abolish*592ing both doctrines; in others, modifying one or the other, or both. In this jurisdiction, the legislature first attempted to deal with the safety of employees. The first act in this state with reference to the matter dealt with the guarding of machinery, and, so far as material, reads as follows :
“It shall be the duty of the owner, agent, superintendent, or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; all saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein shall be properly guarded.”
This was passed by the 29th General Assembly and is known as Section 2 of Chapter 149 of the acts of that assembly, and it has not been substantially changed since its enactment. Failure of an employer to comply with this statute has been held to be negligence entitling an injured employee to recover. McCreery v. Union Roofing & Mfg. Co., 143 Iowa 303; Kirchoff v. Hohnsbehn Creamery Supply Co., 148 Iowa 508; Verlin v. U. S. Gypsum Co., 154 Iowa 723. After some wabbling on the subject, this court, without reference to any statutory provision on the subject, finally held that, as assumption of risk would defeat the very purpose of the statute, the ordinary common-law rule upon that subject does not apply in all its aspects. See Sutton v. Des Moines Bakery Co., 135 Iowa 390; Bromberg v. Evans Laundry Co., 134 Iowa 38; Woolf v. The Nauman Co., 128 Iowa 261; Verlin v. Gypsum Co., supra. Whether or not contributory negligence would bar the right of an employee, was involved, if not decided in the negative, in one case (see McCreery case, supra); but it was finally held that the injured employee must show freedom from contributory negligence. Wheeler v. Sioux Paving Brick Co., 162 Iowa 414; Poli v. Numa Coal *593Co., 149 Iowa 104, 105. I shall revert to this matter again in dealing with another branch of the case.
As the common-law doctrine of assumption of risk hitherto stated was not satisfactory, the 32d General. Assembly passed an act reading as follows:
“In all cases where the property, works, machinery or appliances of an employer are defective or out of repair and the employee has knowledge thereof, and has given written notice to the employer, or to any person authorized to receive and accept such notice, or to any person in the service of the employer and entrusted by him with the duty of seeing that the property, works, machinery or appliances are in proper condition, of the particular defect or want of repair or when the employer or such other person has been notified in writing of such defect or want of repair by any person whose duty it is under the rules of the employer or the laws of the state to inspect such works, machinery or appliances, or any person who is subject to the risk incident to such defect or want of repair; no employee after such notice, shall by reason of remaining in the employment with such knowledge, be deemed to have assumed the risk incident to the danger arising from such defect or want of repair. ’ ’
This is known as Chapter 181, Acts 32d General Assembly. It changed the previous law as follows: It provides that, if an employee having knowledge of defects gives written notice to his employer, or if such notice is given by any state inspector, the employee shall not, after such notice, be deemed to have assumed the risk incident to the danger, by reason of continuing to work therewith. In other words, no promise of repair by the master is needed. All required is that the employer be given written notice of the defect. Manifestly, no other changes were made by this statute. This was amended by the 33d General Assembly so as to make the statute read:
“In all cases where the property, works, machinery or *594appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery or appliances to furnish reasonably safe machinery, appliances or place to work, the employee shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary, course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Nor shall the employee under such, conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment; and no contract which restricts liability hereunder shall be legal or binding. ’ ’
This is known as Section 4999-a3 of the Supplement of 1913, and is the statute now under consideration. It is manifest that it changes the prior statute by dispensing with notice to the employer, and also' changes, but to a large extent recognizes, the rules of the common law. The hand that drew the last enactment had a better comprehension of the common law upon the subject of assumption of risk than the one which drew the first statute, and evidently intended to dispense entirely with the necessity of any notice, protest or complaint on the part of the employee where both the employer and employee have knowledge of the defect, and also to get rid of the doctrine that the employee must have secured a promise of repair on the part of the master, in order to justify him in the continuance of the work with defective appliances. It does not change the rule of the common law where either employer or employee had no knowledge of the defect, and, it will be observed, makes no reference whatever to the safety appliance acts which had, long prior to that time, been placed upon the statute books. It does specifically refer to cases *595where it is the duty of an employer to furnish reasonably safe machinery, etc.f- — meaning, of course, the common-law obligation, — and then says that, notwithstanding the statute, an employee is still held to have assumed such risks as are incident to his employment, — meaning, of course, the assumption of risk first considered by me in this dissent. It also undertakes to preserve the doetrine that, if it be the duty of the employee to make repairs or remedy defects, he will be held to have assumed the risk if he fails in that duty. It also recognizes the doctrine that in some cases, if not all, an employee will not be justified in continuing his work if the danger is imminent and to such an extent as that a reasonably prudent person would not have continued in the prosecution of the work. The majority say that this limitation applies only to eases where it was the duty of the employee to make the repairs or remedy the defects; but it is my opinion that it applies to all cases, the statement “under such conditions” referring to cases where the employer was under the duty to furnish reasonably safe machinery, etc., and where both employer and employee had knowledge of the defects, and not to a case where it was the duty of the employee to make repairs or remedy the defects. The very term itself “under such conditions” manifestly refers not to duty, but to conditions. If not, why use the plural in expressing the thought? Statutes like this which are remedial in. character must be construed with reference to the common law and made to fit therein and harmonize therewith. To my mind, there is no doubt or ambiguity in the language used or in the interpretation to be given. At common law, an employee whose duty it was to make repairs or remedy defects could not b'e heard to say, “Although I was at fault in not doing my duty, still I did not assume the risk and I will place the responsibility upon my employer.” Neither could he, even if he were in a position ordinarily to say that he did not assume the risk, subject himself to imminent danger and assume hazards which a reasonably prudent person would not have *596subjected himself to. This statute was not made to penalize an employer, but to modify the doctrine of assumption of risk, preserving some of its features, — obviously, those which did not impose any hardship on the employee. Surely, if it is the duty of an employee to make repairs and remedy defects, he should not be heard to say that ‘ ‘ Although I was in fault, the blame should be shouldered entirely upon my employer.” Again, it is not in the interest of public policy to make one indifferent to his own life. Under the construction placed upon the statute by the majority, -it makes no difference how imminent the danger or how great the peril, an employee, unless under a duty to" make the repairs or remedy defects, does not assume the risks incident to the use of defective appliances or of dangerous places to work. He may still go ahead with his work, although he knows that it is suicidal to do so, and still hold his master liable.
To my mind it is clear that, under this statute, an employee does assume all such risks as are incident to his employment. He does assume all risks, if that term may properly be so used, if it was his duty to make the repairs or remedy the defects which caused his injury; and he cannot be heard to complain if, with knowledge of defects and dangers which are imminently dangerous and hazardous, so much so that no reasonably prudent man would have submitted to them, he continues in his work with the dangerous machine or appliance or in a dangerous place. This construction harmonizes the statute with the common law and was manifestly what the legislature had in mind. A careful reading of the statute, with reference to its proper grammatical construction, surely shows that an employee whose duty it is to make repairs or remedy defects cannot complain of his master for not doing the things which the servant himself has undertaken to perform; nor should he be allowed to take upon himself hazards to which the law says he should not subject himself and then complain of the master for his wrongdoing. As already stated, such a rule is not in the interest of public *597policy. This construction, and this only, harmonizes the statute with the common law and comports with the growth of the law upon the subject. I shall not take up the statutes with reference to contributory negligence, for they are not involved in this case. The only ones which might apply were passed after this case was tried and are not applicable to it. But see Code Supplement, 1913, Section 2071, and Supplemental Supplement, 1915, Section 3593-a. It is enough to say that the ease was submitted on the theory that plaintiff was required to negative contributory negligence.
II. It is said, however, that this case falls under the safety appliance act first quoted, and that assumption of risk was no defense, under the doctrine of Poli v. Numa Coal Co., supra; Winn v. Town of Anthon, 168 Iowa 699; Woodworth v. Iowa C. R. Co., 170 Iowa 697; Wheeler v. Sioux Paving Brick Co., supra; Verlin v. Gypsum Co., supra; Rhodes v. Des Moines, I. F. & N. R. Co., 139 Iowa 327. Had the case been tried upon that theory, I would be inclined to agree with counsel that, notwithstanding the statute in question which makes no reference to safety appliance acts, the doctrine of assumption of risk is not in the case. But the case was not tried on this theory. It was submitted as if Section 4999-a3, Supplement to the Code, 1913, applied; and the sole controversy on this appeal is whether or not the trial court correctly interpreted that statute. I shall not, therefore, take any more time with this aspect of the case than to say that it will be time enough to consider the matter when it properly arises. The majority do not attempt to sustain the judgment on this theory, and my dissent applies not to the result alone, but to the reasoning on which the result is reached.
Assumption of risk, as pointed out in the decisions already cited, is quite a different thing from contributory negligence, and an instruction on the latter subject, even if correct as a matter of law, does not cure an error in instructing or failing to instruct on assumption of risk. This is pointed out in the cases already cited, and also in Miller v. White Bronze *598Monument Co., 141 Iowa 701. These cases so well point out the distinction between the two that I need not elaborate. The instruction asked by defendant on assumption of risk should have been given, and the one given by the court on contributory negligence did not cure the defect. Although a little out of order, I have thought it advisable here to refer to a few authorities sustaining the view that a statute should be construed in the light of the common law. It is well settled that whatever is newly created by statute draws to itself the same qualities as if it had existed at the common law and is to be interpreted in the light thereof. In other words, it is to be construed in harmony with their policy and with the common law. See Bishop on Written Laws, Section 139 et seq.; 36 Cyc. 1145, and cases cited.
For the reason stated, I am impelled to dissent both from the argument and the conclusion of the majority.