pect negligence in this respect on the part of the officials of the department.

Consequently, in my opinion, the board is not liable even if negligence is made out, upon which I express no opinion.

I would therefore allow the appeal with costs.

HYNDMAN, J.-This is an appeal from the judgment of Walsh, J. in favour of the plaintiff ([1918] 2 W.W.R. 586). The plaintiff is an infant and at the time of the happenings complained of was 16 years of age.

The defendant school board was duly constituted under the provisions of The School Ordinance, C.O. ch. 75, and the regulations made in pursuance thereof. In the year 1917 the said defendant as part of its educational system organized a technical or manual training school which they owned and equipped.

The plaintiff was a student in grade IX. of the Strathcona high school also owned and controlled by the defendant board. Part of the course of study for said grade IX. was that of manual arts which was taught in the said technical school and which was obligatory. The plaintiff in consequence attended the classes once a week for a period of about 30 weeks extending from about January to June, 1917. The regulations of the department of education prescribed that a student desirous of taking the departmental examinations for matriculation must on or before April 15, make application in writing on a form furnished by the department. The plaintiff accordingly made such an application and paid the prescribed fee of $2.

The examinations were held in the month of June, 1917; and included manual arts.

The only technical school in which examinations in this subject could be held in Edmonton was the one in question, and the department notified the defendant board that they "would require" this building for the June examinations. Although there may or may not have been any legal obligation on the part of the defendants to grant the use of this school, as a matter of courtesy they did give the use of the premises

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without charge, the department paying for all materials required for the occasion, and on June 27, candidates, amongst whom was the plaintiff, attended, and the examinations were held. The evidence is, and the trial Judge so found, that on this occasion the school was under the exclusive control of the provincial departmental examiners, although two of the permanent instructors, employees of the defendant school, were present at the time.

A part of the equipment of the school was a combination. circular cross-cut and rip saw, both saws set in the same table and operated by the same power, only one of them however being capable of use at a time. Attached to the machine is an adjustable guard or hood of wire mesh fastened to a steel rim which can be utilized if desired as a supposed protection to the person operating the saws. During the examination the plaintiff in order to comply with one of the tests put to the candidates was required to saw a piece of wood three feet long by three inches wide. The plaintiff was given a piece of wood with which to do this, and to use the words of the learned trial Judge, "he put the end of it which was nearest his body in his right hand and with his left hand guided the other end of it against the rip saw which was in motion and ran the saw through the wood, keeping his left hand on the left-hand edge of the block at a distance, I should say, of a little more than one inch from the saw until the saw had run itself through the block. Then for some purpose and in some manner which he cannot explain he brought his left hand back towards his body and in doing so it came in contact with the saw which was unguarded. The result is that he has lost from that hand his little finger from the first joint, his third finger from the knuckle, and the end of his thumb, whilst his first and second fingers are to a certain extent stiff. His claim is against the board for the damages thus occasioned him."

The grounds of the plaintiff's claim are that the defendant: (1) Provided for the use of pupils in attendance at the said technical school a circular saw which was defective and unsafe; (2) Failed to provide for the use of the said pupils a circular saw affording the maximum of protection or reasonable safety; (3) Failed to see that the guard of the said

circular saw was in position on the occasion in question; (4) Failed to instruct the plaintiff in the use of the said circular saw; (5) Submitted the plaintiff to the test of the examiners in the operation of the said circular saw with such inadequate instruction in its use as to expose him to serious risk of injury.

It seems to me that grounds 1, 2, and 3 are substantially one and the same thing and mean that the defendant did not provide machinery which was not defective and not unsafe.

The general rule of law is that a master or employer must provide machinery fit and proper for the work and take care to have it superintended by himself or his workmen in a fit and proper manner. The test of fitness is not that others use like tools and machinery but to consider whether they are reasonably safe and suitable for the work to be done, and such as a reasonably careful man would use under like circumstances. "Reasonably safe" means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. See Beven on Negligence, 3rd. Can. ed., pp. 613, 614, and cases there cited.

There is no dispute but that a circular saw whether a crosscut or rip saw is a dangerous instrument if not carefully handled, and that characteristic is inseparable from its nature.

The question is then, did the defendant board in providing this machinery fail to fulfil their duty as required by the rule of law above stated? In my opinion they did not. A technical school would be practically useless without the installation of such saws and it was absolutely necessary for the proper carrying on of the work of manual training. The evidence is in my opinion decidedly in favour of the fact that this particular machine was up to the standard of the day and is of the latest and best type. John W. Allen, one of the plaintiff's own witnesses, in cross-examination, admitted that the machine is one of the best on the market and that he did not know of any better equipment in a combination saw. The

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chief complaint seems to be that there was no “guard” used, though a guard to which I have already referred was attached to the table and might have been put in use, and the greater part of the evidence is directed to that fact. The plaintiff's witnesses state that in their opinion there is greater danger in Hyndman, J. using the rip saw than the cross-cut saw, because in using the former the wood is apt to shoot forward [back?] in the direction of the worker and cause injury, and that the guard will in some way prevent this. But no such thing happened on the occasion in question, so even if the hood had been there this important object would not have been served. On the contrary, however, other witnesses, men of long experience and whose opinions are entitled to weight, say that the machine would be more dangerous with than without this appliance, taking all the possibilities into consideration. The witness Allen also stated in his cross-examination that possibly "there may be some times when you would say if the hood had been on this accident would not have occurred but if the hood had been on other accidents would have occurred." There is evidence too that in other well-appointed factories similar machines with hood attachment are used, but the hood is generally discarded for the reasons given. With great deference to the opinion of the learned trial Judge I am unable to agree that there was any evidence upon which it can be said that the school board did not use every reasonable care and precaution to provide machinery reasonably safe and suitable for the work contemplated.

However, even if I should be in error in this conclusion, there is the further, and I think, fatal objection to the plaintiff's claim that on the occasion complained of the premises were not under the management or control of the defendant but were being used by the provincial board of examiners, a distinct and separate body, independent in every way of the defendant board, and no obligation attached except to see that no trap or hidden danger existed. In granting the use of the building to the provincial board, if permission was at all necessary, there was no contractual relationship between them; they cannot be said to be invitees, for the premises were practically, though not perhaps legally, commandeered by them.

They notified the defendant board that they would require the building, which notification was complied with. They were then, I think, mere licensees.

A licensee is a person who is neither a passenger, servant nor trespasser, and not standing in any contractual relation with the owner of the premises, and is permitted to come upon the premises for his own interest, convenience, or gratification. (29 Cyc. 451.)

The rule is well settled that an owner of premises owes to a licensee no duty as to the condition of such premises, unless imposed by statute, save that he should not knowingly let him. run upon a hidden plant or wantonly or wilfully cause him harm. The licensee enters upon the premises at his own risk and enjoys the license subject to its concomitant perils. (29) Cyc. 449, 450, also King v. Northern Navigation Co., 3 O.W.N. 1538; 22 O.W.R. 697; 27 O.L.R. 79; 6 D.L.R. 69; Perdue v. C. P. R. [1910] 15 O.W.R. 836; 1 O.W.N. 665; Gunn v. C. P. R., 22 Man. R. 32; 1 W.W.R. 804; 20 W.L.R. 219; 48 C.L.J. 153; 1 D.L.R. 232, and annotations).

In Hounsell v. Smyth, 7 C.B. (N.S.) 731; 29 L.J.C.P. 203; 6 Jur. (N.S.) 897; 1 L.T. 440; 8 W.R. 277, the declaration alleged that the defendants were seized in fee of waste land, and, before the grievance alleged, a quarry had been opened on the land, which was worked by leave of the defendants, who received a royalty; that the waste was open to the public, and all persons having occasion to cross it had been used to cross it with the license of the owners; that the quarry was actually near to and between two public highways leading over the waste, and was dangerous to persons who might accidently deviate or have occasion to cross the waste for the purpose of crossing from one road to the other; that the defendant, well knowing the premises, left the quarry unfenced, and the plaintiff, having occasion at night to cross the waste to get from one of the roads into the other, and not being aware of the existence of the quarry, fell into it and was injured. It was held on demurrer that the declaration showed no cause of action.

Williams, J., at p. 207, (29 L.J.C.P.) says: "No right is averred, but merely that the owners allowed persons, for di

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