volves conduct to which moral blame attaches. Praties v. Broxburn Oil Co. [1906-07] S. C. (Scot.) 581. In other words, it is conduct of a quasi criminal character, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of the probable consequences. Burns's Case (Mass.) supra; Haskell & B. Car Co. v. Kay (1918) Ind. App., 109 N. E. 811; Indianapolis Light & Heat Co. v. Fitzwater (1918) Ind. App., 121 N. E. 126.

So, in O. L. Shafter Estate Co. v. Industrial Acci. Commission (1917) 175 Cal. 522, 166 Pac. 24, it was held that the deceased employee was not guilty of wilful misconduct, although he might have been guilty of negligence, where there was nothing to indicate that he intentionally imperiled his life, or recklessly sought a position of danger.

A workman in a carting room where the machinery was driven by a number of belts from overhead revolving shafting is guilty of serious and wilful misconduct in climbing up a sloping window ledge about 5 feet from the ground in trying to replace a belt, rather than using a ladder furnished by the employer, which was only 12 feet away. Russell v. Murray [1915] W. C. & Ins. Rep. (Eng.) 532, 9 B. W. C. C. 81.

On the theory that it is the act itself, and not the consequences thereof, that must be serious, compensation will not be refused where a workman was injured while walking along a tramway in a mine upon which he knew trams were approaching, where the injury was caused by the rope slipping, and there was no evidence that he could not have reached a manhole before the tram reached him. Rees v. Powell Duffryn Steam Coal Co. (1900) 64 J. P. (Eng.) 164.

Nor where an engineer, after leaving his engine, walked along the track to a station where he had to report himself off duty. Todd v. Caledonian R. Co. (1899) 1 Sc. Sess. Cas. 5th series, 1047, 36 Scot. L. R. 784, 7 Scot. L. T. 85.

Nor where a watchman, stationed at a certain point to warn approaching trains of a landslide, went along the line for about 300 yards. Glasgow & S. W. R. Co. v. Laidlow (1900) 2 Sc. Sess. Cas. 5th series, 703, 37 Scot. L. R. 503, 7 Scot. L. T. 420.

But a miner's injury must be held attributable to his own serious and wilful misconduct, where the injury was received while he was attempting to cross two sets of rails in a mine while the hutches were running, with full knowledge that it was dangerous. so to do, and the danger could have been avoided by waiting a short time until the hutches had ceased running. Condron v. Paul (1903) 6 Sc. Sess. Cas. 5th series, 29, 41 Scot. L. R. 33, 11 Scot. L. T. 383.

And the act of a farm servant who, in driving a lorry, ties the reins to a small wheel which worked a brake on the front of the lorry, instead of keeping them in his hand, thereby causing the horse's head to be pulled round so as to make it run back and upset the lorry, amounts to "serious and wilful misconduct." Vaughan v.

Nicoll (1906) 8 Sc. Sess. Cas. 5th series, 464.

III. Violation of orders and rules.

Mere disobedience of orders does not necessarily, as a matter of law, constitute serious and wilful misconduct (Peru Basket Co. v. Kuntz (1919)

Ind. App. -, 122 N. E. 349); nor does the phrase include every violation of rules (United States Fidelity & G. Co. v. Industrial Acci. Commission (1917) 174 Cal. 616, 163 Pac. 1013; Great Western Power Co. v. Pillsbury (1915) 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466).

The disregard of an order cannot always, as a matter of law, be held to be wilful negligence which will release an employer not accepting the Michigan act from liability for injuries caused by the employee's negligence. Freeman v. East Jordan & S. R. Co. (1916) 191 Mich. 529, 158 N. W. 204.

So, in George v. Glasgow Coal Co. [1909] A. C. (Eng.) 123, 2 B. W. C. C. 125, Lord Loreburn, L. C., said: "In my opinion, it is not the province of a court to lay down that the breach of a rule is prima facie evidence of serious and wilful misconduct. That is a question purely of fact, to be determined by the arbitrator as such. The arbitrator must decide for himself, and ought not to be fettered by artificial presumptions of fact prescribed by a court of law."

A finding in favor of a servant will not be pronounced erroneous, as a matter of law, where a rule made under the Coal Mines Regulation Act of 1887 was violated by a workman employed in a coal mine. Rumboll v. Nunnery Colliery Co. (1899) 80 L. T. N. S. (Eng.) 42, 63 J. P. 132.

Nor where a workman, instead of using a ladder, undertook to ascend by a hoist to a platform for the purpose of obtaining a certain article which he required for his work. Logue v. Fullerton (1901) 3 Sc. Sess. Cas. 5th series, 1006, 38 Scot. L. R. 738, 9 Scot. L. T. 152.

Nor where a boy of nineteen, in contravention of an express order, put his hand across a circular saw to pick

up an uncut screw which had fallen from its place. Reeks v. Kynock (1901) 18 Times L. R. (Eng.) 34, 50 Week. Rep. 113, 2 N. C. C. A. 877. The court said that the inference was that the element of wilfulness was not present, but that the act was committed on a sudden impulse.

a

Nor where minor employee thoughtlessly violates an order of the employer not to oil machinery while in motion, and attempts to oil it after the power has been shut off and the machinery is moving of its own momentum. Diestelhorst v. Industrial Acci. Commission (1917) 32 Cal. App. 771, 164 Pac. 44.

A laborer engaged in shoveling dirt will not be held guilty of wilful misconduct, after having been told to go to another place to work, he returns to the original place and is injured, where there is nothing to show that he knew that he had been told to leave the original place because it was dangerous to work there. Gray v. Industrial Acci. Commission (1917) 34 Cal. App. 713, 168 Pac. 702.

The act of a painter in working near machinery while it was in motion, after he had been told not to, may be found not to be serious and wilful misconduct where he was justified in believing that the machinery would stop at any moment. Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645.

The fact that an employee was violating a municipal ordinance at the time of his injury is not sufficient to prevent him from securing compensation, since, at most, the violation of the ordinance was only prima facie evidence of contributory negligence, and contributory negligence is not a defense. Alexander v. Industrial Bd. (1917) 281 III. 201, 117 N. E. 1040.

Generally, the violation of a rule or order if unknown to the workman cannot be considered serious and wilful misconduct. McArthur v. McQueen (1901) 3 Sc. Sess. Cas. 5th series, 1010, 38 Scot. L. R. 732, 9 Scot. L. T. 114.

However, the mere fact that the employee does not know of the rule will not, in all cases, excuse a violation thereof.

Thus, where a workman violates a newly published statutory rule and an injury results therefrom, his de facto ignorance of the rule can in no circumstances prevent the injury from being attributable to his "serious and wilful" misconduct. Dobson v. United Collieries (1905) 8 Sc. Sess. Cas. 5th series, 241 (miner carrying cartridge not in a case, with naked light in his cap).

But if a workman's ignorance of the rule is due to mere negligence on his part, then his violation thereof cannot be considered "serious and wilful misconduct." M'Nicol v. Spiers (1899) 1 Sc. Sess. Cas. 5th series, 604, 36 Scot. L. R. 428, 6 Scot. L. T. 353.

It cannot be considered serious and wilful misconduct on the part of an employee to violate a rule of the employer if the rule in question is habitually violated by the employee, to the knowledge of the employer.

Thus, the county court judge may find that a girl fourteen years old, employed as a soda water bottler, was not guilty of serious and wilful misconduct in neglecting to wear gauntlets which had been furnished by the employer, and which, by the special rules of the establishment and by special orders given directly to the workmen, she was required to use, where the evidence showed that the forewoman had allowed her to disregard the rules, but verbally told her to obey them, and had verbally told her to put them on in case the employer should come to see her. Casey v. Humphries [1913] W. N. (Eng.) 221, 29 Times L. R. 647, 57 Sol. Jo. 716, 6 B. W. C. C. 520.

So, too, the use by an employee for his own purpose of a lift upon which was a notice that no one was allowed to use the lift except when in charge of a load does not amount to serious and wilful misconduct, where other employees had used the lift in like manner, and the notice was not intended as a warning against danger, and no danger could have been anticipated from the use of the lift by an individual workman. Johnson v. Marshall, Sons & Co. [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S.

828, 22 Times L. R. 565, 5 Ann. Cas. 630, 8 W. C. C. 10.

A finding that a rule had not been enforced eliminates from the case any question of serious and wilful misconduct based on the mere violation of the rule. Rayner v. Sligh Furniture Co. (1914) 180 Mich. 168, L.R.A.1916A, 22, 146 N. W. 665, Ann. Cas. 1916A, 386, 4 N. C. C. A. 851.

But violation of rules or orders designed especially to safeguard the employees is generally held, as a matter of fact, to constitute serious and wilful misconduct, and to debar the employee, or his dependents, in case of death, from any right to recover compensation.

Under this doctrine no recovery was allowed in the following cases, where the employee was guilty of the conduct indicated:

Where a miner infringed a rule forbidding him to carry a naked light on his cap while carrying cartridges not inclosed in a case. Dailly v. Watson (1900) 2 Sc. Sess. Cas. 5th series, 1044, 37 Scot. L. R. 782, 7 Scot. L. T. 73.

Where a collier permits his naked light to remain in such a position that it ignites gunpowder. Donnachie v. United Collieries [1910] S. C. 503, 47 Scot. L. R. 412.

Where the gate fencing to a shaft of a mine was opened before the cage was stopped. George v. Glasgow Coal Co. [1909] A. C. (Eng.) 123, 78 L. J. P. C. N. S. 47, 99 L. T. N. S. 782, 25 Times L. R. 57, [1909] S. C. 1, 46 Scot. L. R. 28. Lord Loreburn, L. C., and Lord Robertson both expressed the opinion that the violation of a rule was not prima facie evidence of "serious and wilful" misconduct.

Where a miner violated a rule requiring the erection of props at specified intervals. O'Hara v. Cadzow Coal Co. (1903) 5 Sc. Sess. Cas. 5th series, 439. The Lord Justice Clerk said: "The rule is an imperative one, and is plainly meant to insure the safety of the worker, and the failure to carry it out is plainly 'serious misconduct,' as adding greatly to danger. That it was wilful is also plain, for there is no suggestion of an excuse for the disobedience."

Where a miner failed to get into a manhole in the main haulage road of the mine, after he had been warned by a fellow workman that a train of cars was approaching. John v. Albion Coal Co. (1901) 18 Times L. R. (Eng.) 27, 65 J. P. 788.

Where a miner violated a rule forbidding anyone to approach a shot hole within a specified time after shot has been fired. M'Kenna v. Niddrie & B. Coal Co. (1915) 53 Scot. L. R. 1, 9 B. W. C. C. 411.

Where a miner, after lighting a fuse and retiring to a safe place, waited only three minutes before returning to see whether or not the fuse had gone out, instead of the thirty minutes required by the rules. Waddell v. Coltness Iron Co. [1913] W. C. & Ins. Rep. 42, 50 Scot. L. R. 29, 6 B. W. C. C. 306.

Where miners contravene a special rule framed under the Coal Mines Regulation Act. United Collieries v. M'Ghie (1904) 6 Sc. Sess. Cas. 5th series, 808, 41 Scot. L. R. 705, 12 Scot. L. T. 650; Lynch v. Baird (1904) 6 Sc. Sess. Cas. 5th series, 271, 41 Scot. L. R. 214, 11 Scot. L. T. 597 (the facts, however, did not show contravention).

Where a miner violated a general rule of a mine and disobeyed the direct order of the deputy. Watson v. Butterley Co. (1902; C. C.) 114 L. T. Jo. (Eng.) 178, 5 W. C. C. 51.

Where a workman employed in a mine, despite warnings and in violation of the orders of the manager, rides upon a truck of ore at a point where it will travel about 6 miles an hour by gravitation, and where track is curving and only temporary. Rowe v. Reynolds (1910) 12 West Austr. L. R. 75.

Where an inexperienced workman, after two warnings, used a freight elevator to reach another floor. Granick v. British Columbia Sugar Ref. Co. (1909) 14 B. C. 251.

Where an employee disregarded a warning not to ride in or attempt to operate freight elevators in the building in which he was employed when he met his death. Pacific Coast Casualty Co. v. Pillsbury (1916) Cal. App.

162 Pac. 1040.

Where a girl engaged in passing

sheaves on a threshing machine undertook, in disobedience of an express prohibition, to step across the opening through which they were fed to the machine, merely for the purpose of speaking to a friend, and without any necessity arising out of the work. Callaghan v. Maxwell (1900) 2 Sc. Sess. Cas. 5th series, 420, 37 Scot. L. R. 313, 7 Scot. L. T. 339.

Where a charwoman, in hanging out clothes, stood upon the ledge of a glass frame, which she had been forbidden to do. Beale v. Fox (1909; C. C.) 126 L. T. Jo. (Eng.) 257, 2 B. W. C. C. 467.

Where the servant cleaned machinery in motion, such an act being forbidden by a rule known to him. Guthrie v. Boase Spinning Co. (1901) 3 Sc. Sess. Cas. 5th series, 769, 38 Scot. L. R. 483.

Where an engine driver left the footplate of the engine while in motion, contrary to rules. Bist v. London & S. W. R. Co. [1907] A. C. (Eng.) 209, 76 L. J. K. B. N. S. 703, 96 L. T. N. S. 750, 23 Times L. R. 471, 8 Ann. Cas. 1; Jones v. London & S. W. R. Co. [1901] 3 W. C. C. (Eng.) 46.

Where a workman failed to use a guard to a saw which he had been directed to use by both the foreman and a factory inspector. Brooker v. Warren [1907] 23 Times L. R. (Eng.) 201.

Where an employee drove an automobile on a public highway at a speed prohibited by statute. Fidelity & D. Co. v. Industrial Acci. Commission (1916) 171 Cal. 728, L.R.A.1916D, 903, 154 Pac. 834.

Where an experienced lineman, in working about live wires, failed to use rubber gloves, as the rules of the employer require, and as he had been. recently directed by a foreman to do. Great Western Power Co. v. Pillsbury (1915) 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466.

Where boys went into a dangerous place, in disobedience to positive directions. Powell v. Lanarkshire Steel Co. (1904) 6 Sc. Sess. Cas. 5th series, 1039.

The wilful violation of orders comes under the head of wilful misconduct.