100

of the employment to which he voluntarily and intelligently con-
sents, and, while ordinarily he is to be subjected only to the hazards
incident to his employment, if he knows that proper precautions
have been neglected, and still knowingly consents to incur the
risk to which he will be exposed thereby, his assent dispenses with
the duty of the master to take such precautions." (34) The in-
quiry, therefore, takes this form. Did the employe know of the de-
fect? If he did, he cannot recover. (35) Though not knowing, would
he have known had he exercised ordinary care? If so, he cannot
recover, nor is forgetfulness of the danger usually any excuse. In
some cases, though, it is held that if he was so absorbed by his work
while doing his duty as to forget the danger he may perhaps re-
cover. (36)

10. There is another distinction between fixed risks and changing
risks that must be noticed. A railroad switch or frog is an example
of the first kind, a bush overhanging a track the other. An em-
ploye may assume the former risk because it is known, while he
may still hold his employer for any injury growing out of the latter.
