Gaynor, J.
This case was before this court and determined by it on the 25th of September, 1914. The finding then was adverse to appellant. At the same term in which the opinion was filed, a petition for rehearing was submitted and later a rehearing granted. The case is again before us for determination upon the merits of the original appeal.
Master and servant: assumption of risk: Assumption of Risk Act: duty to repair. The facts of the ease are substantially as follows: The defendants were conducting a woodworking establishment in Cedar Rapids. Plaintiff was. a woodworker. Prior to the accident, he had been engaged at his trade for about four years, the last 13 months of which he was employed by the defendants. He was employed to do general work. This . required him at times to use different machines, owned and operated by the defendants in and about their business. At the time of his injury, he was working with a combined machine on which was then a ripsaw. In some of the work done with this machine, guards were used; but for other kinds of work, including ripsawing, no guards were [573] used. At the time of the accident, the plaintiff was using the machine for ripsawing, and it was unguarded. The manner in which the accident happened was, as shown by the testimony, as follows. He was ripsawing pieces of oak wood which were about 18 inches • long, 8 inches wide, and 3y2 inches thick. His purpose was to make them of the width of 7*4 inches. The wood was green, and inclined to bind against the saw. To lessen this and to reduce the possibility of danger, he adjusted the saw and table so that, in pushing the board over the saw, the groove would be cut about one half the thickness of the board. He then turned it over, again running the board through. ' The second cutting finished the operation. He had cut two or three of the blocks before he was injured, all of them bothering him somewhat because of a tendency to bind. He took up the block which was being sawed at the time of the injury and pushed it over the saw. As it was binding some, he endeavored to "hold it down with his left hand while pushing it with his right hand. This, he claims, was done to prevent its rising and falling back against him. While so engaged, the block was knocked from his hands, and his left hand came in contact with the saw, resulting in the injuries complained of.
There was evidence on the part of the defendants to the effect that the manager of the mill, acting for the defendant, had previously called the plaintiff’s attention to a.guard, and asked him if he could put it on, to which it is claimed that the plaintiff replied that he could. This conversation, however, was denied by the plaintiff. The plaintiff’s action is based upon a charge of negligence, and the negligence charged is that the defendants failed to provide plaintiff with a safe place to work; that they failed to properly guard the ripsaw; did not provide proper and safe appliances for doing the work required of the plaintiff.
. The answer was a general denial, and a plea of assumption of risk, based upon the allegation that the saw and appliances with which plaintiff was working at the time were the [574] same that he had used for months, and were in the same condition, and that he knew the saw was unguarded.
There was a trial to a jury, resulting in a verdict for the plaintiff, and, judgment being entered upon the verdict, defendants appeal, and assign several errors upon which they predicate a right to have a reversal. The first relates to an assumption of risk, the charge being that the court erred, not only in the giving of instructions upon this question, but in refusing to give instructions asked by the defendants. In speaking of assumption of risk, we take it that counsel do not refer to that risk which is ever present with and attendant upon the employment, when the'master has done his full duty to the servant, but rather that added risk which comes from a failure of the master to discharge his duty to the servant.
A proper understanding of this controversy involves the following provisions of our statute. Section 4999-a2 of the Code Supplement 'of 1913 provides:
“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. No person under sixteen years of age, and no female under eighteen years of age shall be permitted or directed to clean machinery while in motion. Children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machinery of any kind.”
Section 4999-a3 provides:
‘ ‘ That in all cases where the property, works, machinery or appliances 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 rea[575] sonably safe machinery, appliances or place to work, the employe 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. ’ ’
The first section above set out was enacted by the 29th General Assembly (Chapter 149, Section 2) ; the second by the 33d General Assembly (Chapter 219, Section 1). The first section has been construed several times by this court, and held to impose upon the master an affirmative duty to provide the protection therein required, and that a failure to do so is negligence per se. See Obenchain v. Harris & Cole Bros., 148 Iowa 86; Poli v. Numa Block Coal Co., 149 Iowa 104; Stephenson v. Sheffield Brick & Tile Co., 151 Iowa 371; Miller v. Cedar Rapids Sash & Door Co., 153 Iowa 735; McCarney v. Bettendorf Axle Co., 156 Iowa 418. It will be noticed that Section 4999-a2, above set out, makes it the duty of the owner, agent, superintendent or other person having charge of any manufacturing or any other establishment where machinery is used, to properly guard all saws used in and about the business. ■ The legislature imposing this duty upon the manufacturer undoubtedly considered it necessary and proper to be done for the safety of the employee. Negligence always presupposes a duty, either legal or contractual. A duty being imposed, a failure to discharge it, resulting in injury to another, is actionable negligence. Therefore, we start with the proposition that it was the duty of these de[576] fendants to properly guard the saw furnished the plaintiff for use in and about its factory. When properly guarded, the servant assumed the risk incident to its use. When not properly guarded, he did not assume the risk incident to its use, though he continued to use it in its unguarded condition, except as hereinafter stated. This is as far as we are required to consider the first section in its application to the case under consideration.
In the next subdivision of Section 4999, hereinbefore set Out, the legislature recognized not only the common-law obligation of the master to furnish a reasonably safe place to work and reasonably safe appliances, machinery and tools with which to do the work, but also the provisions of Section 4999-a2; and says that the employee shall not be deemed to have assumed the risk by continuing in the prosecution of 'the work, when the risk is due to defects in the machinery furnished or due to a failure of the master to perform the duties of a master, imposed by the common law or the statute, even though the employee have knowledge of such dereliction, when it appears that the master also had knowledge, unless it be made to appear that it was the duty of the employee, in the usual and ordinary course of employment, to make repairs or remedy the defects; and then he is deemed to have assumed the risk or waived the master’s negligence only when the danger is imminent and to such an extent that a reasonably prudent person would not have continued in the prosecution of the work.
It will be noted from these statutes that there was a purpose on the part of the legislature to change the law as heretofore announced and followed, touching the assumption of risk due to the negligence of the master. The old rule was that, where the master had failed to discharge the duty of a master, and the servant knew this and continued to work without complaint and without promise of repair, he assumed all the added risk due to the master’s dereliction of duty. Under this statute, he does not do so. Its provisions are that,'where [577] it is the duty of the master to do the things contemplated by the statute, or imposed upon the master by common law, the employee does not assume the risk of such dereliction of duty by continuing to work, when he and the master both have knowledge of the master’s shortcomings. To this, however, exception is made when, in the usual and ordinary course of his employment, it is the duty of the employee to make such repairs or remedy such defects. Proceeding further, however, the legislature says that, even where it is tjie duty of the servant to repair, the servant shall not be deemed to have assumed the risk or waived the negligence unless the danger be imminent, so that a reasonably prudent man would not continue in the prosecution of the work.
The conditions referred to are those which are created by the master’s negligence and which it is the duty of the servant, in the ordinary course of his employment, to remedy. These must necessarily refer to the ordinary risks which flow from the master’s negligence. Such risks, he does not assume by continuing to work, even though it is his duty, in the ordinary course of his employment, to make repairs. The only risks which he is deemed to have assumed by continuing to work (when it is his duty, in the ordinary course of his employment, to make repairs) are those risks which flow from conditions which render .danger imminent to him if he continues to work. Then he cannot continue to work without making the repairs, if a reasonably prudent man would not have continued to work without making repairs or remedying the defects.
To give the statute its proper meaning and to correctly express the thought of the legislature and to make the law eonform to the evident intent and purpose of the legislature, as expressed in this statute, it must be read as follows: It is the duty of the master to furnish the servant a reasonably safe place in which to do the work assigned, and reasonably safe tools or appliances with which to accomplish his work. [578] If he fails in this, or the place or instrumentalities become, with his knowledge, defective or out of repair, the servant shall not be deemed to have assumed the risk incident to such defects or want of repair, by continuing in the prosecution of the work, except when, in the usual and ordinary course of his employment, it is the duty of the servant to make the repairs or remedy the defects; but, under such conditions (that is, where defects exist and it is the duty of the servant in the usual and ordinary course of his employment to remedy them), he shall not be deemed to have assumed the risk by continuing in the employment, unless the danger of continuing is so imminent and to such ah extent that a reasonably prudent person would not have continued in.the prosecution of the work without making the repairs or remedying the defects.
Any other interpretation of the statute would lead to the conclusion that, if the master furnished a place, and put the servant in the place and furnished him with the tools to discharge the master’s business, the master would not be liable if,, peradventure, he was so grossly negligent in furnishing the place and implements that imminent danger was thereby created; that the grosser the negligence of. the master and the greater the danger to the servant, the less liability there was from resulting injury, even though no duty rested on the servant to remedy conditions.
It will be noticed that the statute provides exemptions to the servant from all assumption of risk due to the master’s failure to discharge the duties of a master. He assumes no risk due to the failure of the master, whether imminent or otherwise, unless it was his duty, in the ordinary course of his business, to make repairs or remedy the defects out of which the danger arose. If the failure of the'master to furnish a reasonably safe place to work or reasonably safe tools or appliances does not suggest sueh danger that a reasonably prudent man would apprehend imminent danger therefrom while discharging his duties for the master, he may continue [579] to work without making the repairs or remedying the defects, though it was his duty, in the ordinary course of his employment, to make repairs or remedy defects. But if the dangers are imminent and to such an extent that a reasonably prudent person would not continue without remedying the defects or making the repairs, then the servant, if he pro7 eeeds without doing so and is injured by reason thereof, cannot recover.
Summarizing the statute, we have to say that the statute presupposes negligence of the master; a duty on the part of the servant in the ordinary course of his employment to remedy; no assumption of risk from the negligence of the master, unless a duty to remedy defects or make repairs is imposed on the servant; nor then (under such conditions), unless the danger is imminent, etc. This we take to be the correct interpretation of the purpose and intent of the legislature, as expressed in the statute.
Now the mere fact that the servant, with knowledge of the master's. dereliction and duty, continued in the work without complaint and without promise of repair, does not defeat the servant if injured, although he knew and appreciated that there was some added risk involved in continuing the work under these conditions. He does not assume the added risk, unless it was his duty, in the ordinary course of his employment, to remedy the defect, and then only when the dangers from the defect are such that a reasonably prudent man would not continue to work without making the repairs.
Common knowledge tells us that the master does not and cannot, with his own hands, or by or through his own personal effort, discharge all the duties which the law enjoins upon him for the protection of the servant. He must delegate the discharge of these duties to someone. True, when he delegates it, he cannot .escape liability for a failure of the party to whom the .duty is delegated to perform the duty; nor can he escape .liability if the party to whom he does delegate, discharges the duty in a negligent or. careless manner. [580] The duty is his and the responsibility is his, no matter how menial the servant may be to whom he delegates the performance of the duty he owes, and if one is injured by a failure to discharge the duty, he must respond to the one injured. But while these duties must, in the very, nature of things, often be delegated to someone, and while the master is still holden responsible for the doing of it and the manner of its doing, to the one to whom he owes the performance of the duty, it is no less the master’s act when done, and no less the master’s omission if not done. It will be noted in this provision of the statute, Sec. 4999-a3, that it is provided that, where the master is derelict in the performance of his statutory or common-law duty, the employee is not deemed to have assumed the risk by continuing to prosecute the work growing out of any defect aforesaid of which the employee may have had knowledge, when the employer had knowledge of such defect.
In the case before us, the jury might have found that both the employer and the employee had knowledge that the saw was unguarded. Under this statute, the servant assumes none of the risks referred to in the statute that arise from the failure of the master to discharge the duties of a master. Under such circumstances, the servant does not, by continuing to work, assume the risk incident to such conditions, except as hereinafter indicated. Under this statute, the servant assumes no risks that arise from the master’s failure to furnish him- a reasonably safe place to work and reasonably safe tools and appliances with which to do the work. The duty to furnish these rests upon the master,, and he must discharge them if he would escape liability for injuries respiting therefrom. Except where the law absolutely enjoins the doing of a thing as a duty, it is the duty of the master to exercise reasonable care to see that the duty is performed, and to furnish the servant a reasonably safe place to work and reasonably safe appliances. When the statute enjoins the doing of the thing absolutely, the duty is imperative. ■ ,
[581] It makes no difference whether the risks arising from the master’s failure are imminent or otherwise. His duty is the same, no matter what the risks are that arise .from a failure to discharge the duty. The failure of the master to discharge the duty of a master rests upon the master, not upon the servant. If, in the ordinary course of his employment, it is the duty of the servant to make repairs or remedy defects, he does not assume risks due to the master’s failure to discharge the duties of a master, by continuing to work without making the repairs himself, unless the risk of continuing to work without doing so is so imminent that a reasonably prudent person would not continue in the work without making repairs or remedying the defects. . The only condition under which the servant can be said to assume any of such risks is when, in the ordinary course of his employment, it is his duty to make repairs or remedy the defects. The statute, however, expressly provides that, under such conditions (that is, where the master knows of the defects and it is the duty of the servant, in the ordinary course of his employment to remedy the defects), the servant does not assume the risk, unless the risk is imminent, so that no man of ordinary prudence would continue to work without remedying the defects. If he does not assume to make the repairs, he assumes no risk from defects known to the master. If, in the ordinary course of his employment, it is his duty to make the repairs or remedy the defects, he assumes only imminent risks, — risks so imminent that a man of ordinary prudence would not work without repairing or remedying the defects, or having them remedied.
It is the contention of the defendant, and on this contention he bases a right to. reversal, that the statute makes two distinct and separate grounds on which liability may be avoided: (1) That the danger is due to a defect or defects known to the master which the servant agreed to remedy;. (2) that the injury was due to conditions that rendered the place or the instrumentalities so unsafe that danger or injury [582] from them was so imminent and so certain to happen to the servant, if he continued the work, that, as a reasonably prudent man, having due regard for his own safety, he would not have continued in the work without complaint and without promise of repair; that, where • the conditions existing and confronting the servant are such that to proceed in the use of the instrumentalities supplied, or to continue in the place furnished, disclosed manifestly such imminent danger to the servant’s life or limb that a due regard therefor (that is, for his own safety) required him to remove himself from the zone of such impending and threatening peril; that if he did not do it, he cannot complain of the injuries received, although the condition that confronted him was due to the master’s negligence alone and permitted to continue with his knowledge, and this without any duty on the part of the servant to remedy the defects. With this thought in mind, the defendant asked the following instruction, and complains of the court’s refusal to give it: '
‘ ‘ If the danger in using the ripsaw without a guard was so imminent that a reasonably prudent person would not have continued in the work, then the plaintiff, by continuing in the work, waived the alleged negligence of the defendant and assumed the risk, and would not be entitled to recover.”
We think, however, that this instruction does not correctly express the law, for the reason that, under the statute, the servant was not required to desist from work because the master had failed to discharge his statutory duty; that, in continuing to work, he did not assume the risk of danger flowing directly from this failure, except where, in the ordinary course of his employment, it was his duty to make repairs or remedy defects, and then only when, with defects unremedied, the risk was imminent, so that a reasonably prudent man would not have continued to work; that the phrase, “nor shall the employee, under such conditions be deemed to have waived the negligence ’ ’, relates to such conditions as the servant permitted to exist when, in the ordinary [583] course of Ms employment, it was his duty to remedy them, and the existence of which made danger imminent; that the servant does not assume risks from these conditions which the master has knowingly permitted to exist, unless it was the servant’s duty to repair them in the ordinary course of his employment, and then he waives the master’s negligence and assumes the risk only when the conditions permitted to exist render the place so dangerous or the instrumentalities so unsafe that a reasonably prudent man would not continue in the prosecution of the work because of the imminence of the danger; that the first part of the statute relieves the servant from assumption of risks known to the master, arising out of the master’s failure to discharge his statutory duty, except where the servant is charged with the duty, in the ordinary course of his employment, of making repairs or remedying defects; that he can be said to have waived the master’s negligence and assumed the added risk only where the danger is imminent and the servant has agreed, or' it was Ms duty, in the ordinary course of Ms employment, to do the things complained of for the master, and has failed.
So we find and hold that the instruction asked is wrong in this: That it does not differentiate between conditions existing when the servant, in the ordinary course of his employment, has a duty to remedy defects or make repairs, and conditions existing where no such duty rests upon the servant. Making the statute apply concretely to the case at bar, we find that- it was the statutory duty of the defendant to guard this saw. It was not guarded. The defendant continued to use it without the guard. Following defendant’s contention, we would have to say that, the fact being that the plaintiff used this saw without a guard, the jury should deny him recovery if, in their judgment' (or they found the fact to be), the danger from its use was imminent to such an extent that a reasonably' prudent man would not have continued to use it; and this though it was not the duty of the servant to place a guard upon it.
[584] In so saying, it would be necessary for us to eliminate much of the statute. The statute says that, 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 he deemed to have assumed, by continuing the prosecution of work, the risk growing out of any defects aforesaid of which the employee may have had knowledge, when the employer had knowledge of such defects, unless it was the duty of the employee, in the usual and ordinary course of his employment, to make the repairs or remedy the defects. Under this construction, there would be no liability on the part of the employer if he furnished a place that was imminently dangerous, or tools or appliances that a reasonably prudent man would not use, because the servant would then assume the risk involved in the use of such instrumentalities. The greater the danger to the servant from the instrumentalities furnished, the less liability there would be on the part of the master to respond for injuries, though he alone was charged with the duty of remedying defects that caused the injury.
The statute does not, however, so say. The statute says that the servant shall not assume the risks unless it is his duty, in the ordinary course of his employment, to make repairs and remedy defects, and then only when the risk is so imminent that a reasonably prudent man would not continue without making repairs or remedying defects or having it done. We are not concerned so much about the law as it was, as we are concerned about the law as it is. It must be conceded that the legislature is omnipotent within the limits of its constitutional rights. When it speaks, the courts listen and obey. A study of the law as it was prior to the enactment of the statute in question is profitable only in so far as it may aid in the interpretation of the act of the legislature, but the act itself constitutes the law which must govern the court. It is not for us to say that it is a departure from prior legislation, nor that it contravenes the pronounce[585] ments of this court upon the same subject. All this must yield to the latest pronouncement of the legislature upon the same subject. It is not for us to say that an act of the legislature appears unreasonable or even unfair when enforced, if the enactment was within the constitutional power of the legislature to make.
The act under consideration, and we think it controls the rights of the parties in this suit, is plain and unambiguous. The rules for the interpretation and construction of legislative enactments are valuable only in so far as, in their application, we are able to better ascertain and determine the intent of the legislature as expressed in the act. Where the act is plain and unambiguous, there is no room for construction. Nowhere in the act does it appear that the employee assumes any risks incident to the negligence of the master, where the master knows of the conditions which constitute the negligence, except where, in the ordinary course of the servant’s employment, it is the duty of the servant to make repairs or remedy defects. What could be plainer than to say, under such conditions, “nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such an extent that a reasonably prudent person would not have continued in the prosecution of the work”.
Men must work to live. There is a class of men in the world who depend upon their daily labor for the maintenance of themselves and family. They are skilled in certain lines of work, and seek employment in these lines. There are men whose business it is to employ these men for their gwn profit. Without the labor of these men, these institutions could not thrive or even live. The law has assumed to protect the wage-earner. Public policy demands that he have protection in the performance of the world’s work, and enjoins upon the master certain duties for protection, as indicated in the acts hereinbefore set out. Even when these factories and places where men are required to work are carefully guarded, [586] there is risk ever attendant upon their labors, risk to life and limb; these even when the master has used the highest degree of care for the protection of the servant.
The law, as we read it now, does not tolerate negligence on the part of the master that imperils the life or limb of the servant, and so, where the master has failed to discharge the duties of a master, has neglected to provide for the 'safety of his servant, when it lies within his power to do so, and the danger to the servant is thereby increased beyond the ordinary hazards incident to the work, the law says to the master:
“If you know that this negligence has produced a peril to the life and limb of your servant, you cannot be heard to say that the servant knew it and continued to work without complaint, and the mere fact that you have made the place in which your servant is required to work so imminently dangerous to his life and limb that a reasonably prudent man would not continue to work in the place does not excuse your negligence, if, peradventure, the servant continues to serve you under the conditions which you have created, except only when it is the duty of the servant, in the ordinary course of his employment, to make repairs or remedy the defects. You cannot be heard to say you were so grossly negligent and created such imminent danger that a servant who continues in your employment, under the conditions that, you created, must suffer all the loss incident to the injury because, peradventure, he continued in your employment under those conditions. ’ ’
This, we think, is not only what the legislature intended to say, but what it did in fact say in the enactment under consideration, and we are contented to pronounce the law as we find it written. With this construction of the statute, it is apparent that the court did not err in refusing the instruction asked. This was the only debatable ground, if debatable, in the ease.
We find no error justifying a reversal, and the cause is— Affirmed.
[587] Ladd, Weaver and Preston, JJ., concur.