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 400 THE AMERICAN JOURNAL OF SOCIOLOGY

however reckless he may be. The whole is no greater than the sum of all its parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer. 1

Under this theory, it is apparent that the question which we are considering involves an important matter of public policy. In an employment so dangerous (if necessary precautions be not taken) that great numbers of working people are exposed to avoidable dangers to life and limb, and when (recognizing the interest which the state has in the welfare of the citizen) the legislature has interposed its authority in enacting regulative statutes, does not public policy require that such statutes should be mandatory, and not subject to constructive or actual waiver by the persons for whose safety they are framed ?

The English courts answer this query in the affirmative. Statutory duties imposed upon the master for the greater pro- tection of the servant may not be waived by the latter. Public policy forbids it. In Baddesley vs. Lord Granville (10 Q. B. 423) an action was brought for the death of a miner caused by a violation of the Coal Mines Regulation Act, which requires that a banksman be kept at the mouth of coal pits while miners are going up and down the shaft. The court held that the fact that the deceased knew that no banksman was employed by defendant and yet continued to work at the mine did not con- stitute a defense. Says Baron Wills :

There should be no encouragement given to the making of an agreement between A and B that B shall be at liberty to break the law which has been

passed for the protection of A If the supposed agreement between

the deceased and the defendant in consequence of which the principle of volenti non fit injuria is sought to be applied, comes to this that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed upon him by the statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others as well as himself such an agreement would be in violation of public policy and ought not to be listened to.

In New York the question whether the statutory duties imposed on employers to guard cogs, gearings, etc., under the Fac- tory Act could be waived by the employe continuing his work

'Holden vs. Hardy, 169 U. 8.380. See also TIEDEMANN, On Police Powers, % 181 ; People vs. Horner, 149 N. Y. 195.