Francis H. (Francis Hermann) Bohlen.

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sider what is the duty towards the plaintiff' that it is alleged the de-
fendant has broken — for the ideas of negligence and duty are strictly
correlative, and there is no such thing as negligence in the abstract,
negligence is simply neglect of some care which we are bound by
law to exercise towards somebody. The common law imposes
on the occupier of premises no abstract obligation at all as to the
state in which he is to keep them — provided that he carries on no un-
lawful business and is guilty of no nuisance. In the case of premises
that contain an element of danger, a duty arises as soon as_ there
is a probability that people will go upon them : but it is a duty only
towards such people as actually do go. It is not a duty in the
air, but a duty towards particular people. The occupier is bound
to use all reasonable care to prevent such persons from being
hurt. It is obvious that this duty must vary according to the
character of the danger, and the circumstances under which the
premises are to be visited. It differs in the case of hidden dangers,
and the case of dangers that are palpable and visible: it may var}'
according to the age and comprehension of the visitor: in the
case of bare licensees, and of those who come on the premises on
the occupier's business and at his invitation. The only obligation
on the occupier is to take such precautions as are reasonable in
each instance to prevent mischief, and this is but the adaptation to



334 THOMAS Z'. QUARTERMAINE

a special case of the general doctrine sic utere tuo ut alienum non
Isedas.

In the absence of any further act of omission or commission by
the occupier of the premises, or his servants, or of any disregard of
statutory provisions, or of individuals" rights, can it properly be said
that there has been upon his part any breach of duty towards a per-
son who, knowing and appreciating the danger and risk, elects volun-
tarily to encounter them. I employ a builder to mend the broken
slates upon my roof, and he tumbles off. Have I been guilty of any
negligence or breach of duty towards him? Was I bound to erect
a parapet jound my roof before I had its slates mended? In the case
now before us the negligence relied on by the plaintifif is that a vat
in the room in which he worked was left without a railing. Let
us suppose that the defendant, impressed with the danger, had
actually sent for a builder to put one up, and the builder had
fallen in while executing the work. Would the defendant have been
guilty of a breach of duty towards the builder? The duty of an
occupier of premises which have an element of danger upon them
reaches its vanishing point in the case of those who are cognisant
of the full extent of the danger, and voluntarily run the risk. Vo-
lenti non fit injuria.

This is not new law : it is as old as the Roman Digest,^ and has
been accepted by the Courts of this country.^ * * *

It is plain that mere knowledge may not be a conclusive defence.
There may be a perception of the existence of the danger without
comprehension of the risk: as where the workman is of imperfect
intelligence, or, though he knows the danger, remains imperfectly in-
formed as to its nature and extent. There may again be concurrent
facts which justify the inquiry whether the risk though known was
really encountered voluntarily. The injured person may have had
a statutory right to protection as where an Act of Parliament re-

Taulus, Sent. Rec. i, 15, § 3, "Ei, qui irritatu suo feram bcstiam vel
qiiamcumque aliam quadrupedem in se proritaverit, eaque damnum dederit
neque in ejus dominum neque in custodem actio dattir; cf. Lynch v. McNally,
73 N. Y. 347 (1878), and Muller y. McKesson, y^ N. Y. 195.

Among other instances of the application of the maxim, volenti non fit
injuria, occurring in the civil law are the case of a slave struck, while walking
across the Campus Martius, by a javelin thrown by a soldier at exercise,
D. 9, 9, 4, and the case of a customer of a barber having his chair in the
market place, where people are accustomed to play ball, who has his throat cut
by reason of a ball striking the barber's arm while he is being shaved, D. 9,
2, 31. Where a son in patria potestate was sold with his own consent as a slave,
while the father has his action for injuria, "filii vero nomine non competit,
quia nulla injuria est quae in volcntem faciam", D. 47, 10, i, § 5. Volens here
means actually consenting, the instances given above more nearly correspond
to the use of the maxim in the English law. Tn the Canon law the maxim
appears in this form, Scienti ct cnnscnticnti non fit injuria necque dolus
Sext. V, De Regulis Juris, 28. See Beven, Negligence, 3rd ed., p. 632.

•The maxim first appears in T305, Y. B. 33, ed. i. p. 8 CHorwood's transla-
tion). The question was whether in an action for wrongful taking of beasts,
the defendant was bound by the verdict of the assise in a writ of Novel Dis-
seisin. Hunt, Arg. "Volenti non fit injuria; and you yourself purchased
the writ of Novel Disseisin and sued on it till the assise passed in the form,
etc. (that you were never so seised thereof that you could be disseised),
judgment if in opposition to that verdict, etc."



THOMAS V. QUARTERMAINE 335

quires machinery to be fenced. The case of Clarke v. Holmes, 7 H.
^ ^"^^ 957' i^ ^ ^''^^^ 'Ji that sort, and has been so explained subse-
quently by judges of authority. Or again the plaintitt may have a
common right or individual right at law to find these particular
premises free from danger, as in the case of lands on which a
market or fair has been held : lyinch v. Conservators of the
Thames, Law Rep. 9 C. P. 378; Lax v. Corporation of Darlingto)i,
5 Ex. D. 28. The defendant in such circumstances does not dis-
charge his legal obligation by merely affecting the plaintiff with
knowletlge of a danger which but for a breach of dut)' on his own
part would not exist at all. But where the danger is one incident to a
perfectly lawful use of his own premises, neither contrary to statute
nor common law, where the danger is visible and the risk appre-
ciated, and where the injured person, knowing and appreciating
both risk and danger, voluntarily encounters them, there is, in the
absence of further acts of omission or commission, no evidence of
negligence on the part of the occupier at all. Knowledge is not a
conclusive defence in itself. But when it is a knowledge under cir-
cumstances that leave no interference open but one, viz., that the risk
has been voluntarily encountered, the defence seems to me complete.
In finding that the defendant w^as guilty of no contributory neg-
ligence, the county court judge has left untouched the above defence,
which is outside the principle of contributory negligence altogether.
Contributory negligence arises when there has been a breach of duty
on the defendant's part, not where ex hypothesi there has been none.
It rests upon the view that though the defendant has in fact been
negligent, yet the plaintiff has by his own carelessness severed
the causal connection between the defendant's negligence and the
accident which has occurred ; and that the defendant's negligence
accordingly is not the true proximate cause of the injury. It is
for this reason that under the old form of pleading the defence of
contributory negligence was raised, in actions based on negligence,
under the plea of "not guilty." It was said, and said rightly, in
Weblin v. Ballard, 17 Q. B. D. 122, that in an inquiry whether the
plaintifT has been guilty of contributory negligence, the plaintiff's
knowledge of the danger is not conclusive. Obviously such knowledge
may have even led him to exercise extraordinary care. But the
doctrine of volenti non fit injuria stands outside the defence of
contributory negligence and is in no way limited by it. In individual
instances the two ideas sometimes seem to cover the same ground,
but carelessness is not the same thing as intelligent choice, and the
Latin maxim often applies when there has been no carelessness at
all. A confusion of ideas has frequently been created in accident
cases by an assumption that negligence to the many who are ignorant
may be properly treated as negligence as regards the one individual
who knows and runs the risk, and by dealing with the case as if
it turned only on a subsequent investigation into contributor}- neg-
ligence. In many instances it is immaterial to distinguish between
the two defences,* but the importance of the distinction was pointed

* Where a plaintiff is injured by an animal, ferae naturae or known to be
vicious, kept by defendant, he, while not barred by contributory negligence,



336 THOMAS V. QUARTERMAINE

out both by Erie, C.J., in his summing up to the jury in Indermaur
V. Dames, Law Rep. i C. P. at p. 277, and by Cockburn, CJ., in
Woodlcy V. Metropolitan District Ry. Co., 2 Ex. D. 384. To prove
neghgence it is not enough to shew that the defendant has been
neghgent to others, the plaintiff' must shew that there has been a
breach of duty towards himself. These two defences, that which rests
on the doctrine volenti non fit injuria and that which is popularly
described as contributory negligence, are cjuite different, and both,
in my opinion, are left open to an employer, if sued under the
Employers' Liability Act of 1880. Neither of these is a defence that
merely arises by implication out of the workman's contract of serv-
ice. A confusion in applying the first of these two broad prin-
ciples to the special case of master and servant has at times arisen
out of the fact that by the contract of service the workman was
deemed to have taken upon him the ordinary risk of a business law-
fully carried on upon his master's premises, and it has been assumed
as an a fortiori case that he took upon himself such risks as were
visible or known. This is one way of putting such a defence, and
may in many cases be sufficient, but there is another way of stating
it and another principle wholly independent of contract on which
a similar defence arises. The law is full of instances where duties
assume a double aspect and may be viewed concurrently as arising
by implication out of a contract, or as created by some wider
principle of law which happens to take effect and to receive apt
illustration in the particular instance of some particular contract. It
is in most cases a barren and metaphysical inquiry to discuss whether
such duties are best treated as arising by implication from the con-
tract or from the general law outside ; and down to the Employers'
Liability Act, 1880, it may have been less important in the case of
visible and apparent risks, "which explanation of the master's im-
munity was given. The Employers' Liability Act of 1880 makes
precision on this point necessary, and renders it important to remem-
ber that quite apart from the relation of master and servant, and
independent altogether of it, one man cannot sue another in respect
of a danger or risk, not unlawful in itself, that was visible, apparent,
and voluntarily encountered by the injured person. The county court
judge in the case now under appeal, while negativing contributory
negligence, has found the issue of "knowledge" against the plaintiff.
In what sense must this finding be read, having regard to the
undisputed facts? Knowledge, as we have seen, is not conclusive
where it is consistent with the facts that, from its imperfect character
or otherwise, the entire risk, though in one sense known, was not
voluntarily encountered, but here, on the plain facts of the case,
knowledge on the plaintiff's part can mean only one. thing. For
many months the plaintiff, a man of full intelligence, had seen this
vat — known all about it — appreciated its danger — elected to continue
working near it. It seems to me that legal language has no meaning
unless it were held that knowledge such as this amounts to a



cannot recover if with full knowledge of the nature of the animal he delib-
erately chooses to put himself within its reach, Muller v. McKesson and
Lynch v. McNally, supra, n. 2.



POMEROY V. WESTFIELD 337

voluntary encountering of the risk. There was, therefore, in my
opinion, no evidence of negUgence on which the county court judge
could act, and therefore the appeal should be dismissed with cohts.
I gather indeed that the view of the law which 1 have taken is
that which the Court below, and certainly Wills, J., would have
acted upon had they not considered themselves hampered by the
authority of U'cblin v. Ballard, ly Q. B. D. 122. As to that case
1 will only remark that the Court really appear to have assumed
negligence against the employer and to have directed their attention
to the inquiry as to contributory negligence. If the decision, however,
really conflicts, and I am not sure that it may not in fact conflict,
with the view of the law whicli 1 have expressed, I think IVeblin v.
Ballard, 17 Q, B. D. 122, ought to be overruled.'*



POMEROY V. WESTFIELD.
Supreme Judicial Court of Massachusetts, 1891. 154 Mass. 462.

Holmes, J. These are actions for personal injuries alleged to
have been caused by a defect in the highway. There was evidence
that the travelled part of the way, at the point where the plaintiffs
left it, was thirteen or fourteen feet wide, and that more than half
of this part, on the plaintift's' left as they were driving, was made
impassable, or at least was in such a condition that it was prudent to
avoid it, by reason of a deep mud-hole, so that there was left barely
room for one team to pass; that the plaintiffs kept to the right
in the effort to avoid the hole, and, it being dark, went off the
travelled part of the way, and were upset by a ditch or rock within
the limits of the way. The question is whether the judge should
have directed a verdict for the defendant, on the ground either that
there was no evidence of a defect, or that there was no evidence of
due care on the part of the plaintiffs.

The jury were warranted in finding that the mud-hole was a
defect, and that under the circumstances the injury to the plaintiffs
was a natural consequence of a proper attempt to keep out of the
hole. The intervention of a prudent act of this sort on the plain-
tiffs' part would not prevent their recovery. I'lagg v. Hudson, 142
Mass. 280. Hayes v. Hyde Park, 153 Mass. 514.

The strongest argimient for the defendant would be, that, al-
though there is evidence of a defect, and although the conduct of
the plaintiffs at the instant was prudent, yet they, or at least the
plaintiff Phelon, the driver, had taken the risk upon themselves
at an earlier moment by electing to travel upon the road, inasmuch
as Phelon was well acquainted with the road and understood its
dangers. Miner v. Connecticut River Railroad, 1"^ Mass. 398.
Perhaps this argument might be met by saying that it was a question
for the jury in. this case whether Phelon did understand the dangers

' The maxim while not exclusively, or even peculiarly applicable to the
particular voluntarv relation of master and servant, (see Brown v. Rome
Mach. &c. Co., 5 Ga. App. 142. (1908), p. 150), is of vast importance therein.
The effect of its application thereto will be dealt with in the Appendix, in
which the duties and rights of the parties to such relation are considered.



338 POMEROY v. WESTFIELD

fully. Ferrcn v. Old Colony Railroad, 143 Mass. 197, 200. In
one sense, the event proves that he did not, since he undoubtedly
expected to get through safely. Thomas v.. Western Union Tele-
graph, 100 Mass. 156, 158. Mahoney v. Metropolitan Railroad, 104
Mass. 73, 75. Dewire v. Bailey, 131 Mass. 169, 171.

But, further, in determining the right of a plaintiflf to recover,
there are two elements to be considered ; first, how far he is charge-
able with knowledge of the danger which he incurred, and then
undef what exigency he acted. That is to say, the exigency legit-
imately may afifect not only the question how far he appreciated or
ought to have appreciated the danger, but also how far he could
run a risk known to be greater than prudently could be incurred
under ordinary circumstances w'ithout losing his right to recover in
case he was hurt. Especially is this true in cases like the present,
where the parties are not in an equal position. The plaintiffs were
away from home, and had to get back. They depended on the de-
fendant for safety in doing so, and it was the defendant's power
and duty to keep the way free from defects.

In such a case, even if it were found that the plaintiffs knew
that they were attempting a dangerous drive, it could not be said,
as matter of law, that they were not warranted in doing so. The
decisions have carried this principle much further than is necessary
for the purposes of the case at bar. Linnehan v. Sampson, 126
:Mass. 506. Eckert v. Long Island Railroad, 43 N. Y. 502. Penn-
sylvania Co. V. Langendorff, 48 Ohio St. 316. Donahoe v. Wabash,
St. Louis, & Pacific Railzvay, 83 Alisso. 560. Mans v. Springfield,

101 Misso. 613, 618.

Exceptions overruled.^



^Accord: Altoona v. Lotz, 114 Pa. 238 (1886). "It is not the law that a
resident in a city must remain continuously on his property, when the city
grossly neglects the repair of its streets, under pain that if he ventures on the
streets or walks and suffers injury resulting from the city's default, he can
recover nothing. Nor is the resident bound under like pain to abstain from
going to church in the evening, or other places which he may be moved to go
by a sense of duty or love of pleasure. On his part it is enough if he takes
the ordinary care which ought to be exercised by a prudent man, under the
circumstances. This sidewalk had all along been in use, was generally used by
many people and, though unsafe, very few persons had received injury. What
we have said applies to such walk or street ; not to one where a prudent man
in the exercise of due care would not travel." Trunkey, J., p. 246. "Even
if the muddy street was safer for pedestrians than the sidewalk, it could not
be expected that persons would shun the walk and wade the street,"' p. 245.
As to the effect of the plaintiff's knowledge of and failure to take a some-
what safer but more indirect road, see Mellor v. Bridgeport, 191 Pa. 562
(1899) ; Haven v. Bridge Co., 151 Pa. 620 (1892), and Musselman v. Hatfield
Boro., 202 Pa. 489 (1902). See also Elliott, J., in T. W. & W. R. R. v. Bran-
nagan, Adm., 75 Ind. 490 (1881), p. 492, "Knowledge of the existence of a
dangerous defect in a highway does not require a traveller to keep ofif the
highway altogether. If the danger of passing is so great that a man of
ordinary prudence, possessing knowledge of its existence, would not attempt
to pass it, then it might perhaps be contributory negligence for one acquainted
with the location and character of the dangerous spot to attempt to pass in
close proximity. * * * Knowledge of the existence of a dangerous place
does, however, make it incumbent upon the traveller to use care and caution
proportionate to the danger which he knows lies in his way." Accord: In-
dianapolis V. Cook, 99 Ind. 10 (1884), and R. R. v. Sutton, 148 Ind. 169



THRUSSELL V. HANDYSIDE 339



THRUSSELL v. HANDYSIDE.
In the Queens Bench Division, 1888. L. R. 20 Q. B. D. 359.

Hawkins, J. This action is brought to recover damages for
personal injury, which the plaintiff alleges to have been caused by
the negligence of the defendants or their servants. The case was
remitted to the Westminster County Court under s. 10 of the County
Courts Act, 1867, and was tried before the judge of that court and
a jury. A verdict was found for the plaintiff for £200 damages,
and a motion is now made to set aside that verdict and enter judg-
ment for the defendants, on the grounds that no duty was imposed
upon the defendants to protect the plaintiff from dangers which
he might encounter in the course of his work, that the plaintiff con-
tributed to the accident by his own negligence, and that the plain-
tiff took upon himself the risk incidental to his employment, so
that the maxim "Volenti non fit injuria" applies.

I am of opinion that the defendants' appeal must be dismissed.

The circumstances were these: some time before the accident
a large building in Kensington, called Olympia was in course of be-
ing prepared for certain public entertainments. The contractors
for the iron-work were the defendants ; the contractors for the
wood-work were Messrs. Lucas, the plaintiff's employer.

The defendants had erected a large stage upon vvhich their
w^orkmen had for a considerable time worked without accident, such
rivets as fell being stopped by the stage; but just before the acci-
dent the stage was removed at the request of Messrs. Lucas and a
small stage substituted. Thereafter rivets, some red hot, frequently
fell, and though the workmen working below complained to the
defendant's foreman no precautions, such as stretching a tarpaulin
below the stage (which could easily have been done), were taken to
prevent the fall of rivets, bolts, etc. — one of which struck and injured
the plaintiff while at w^ork below in the employment of Messrs.
Lucas.

The question is whether, on these facts, the plaintiff is entitled
to recover.

Mr. Lush in his very able argument contended in the first place
that no duty was imposed upon the defendants which could make
them responsible for the injury suft'ered by the plaintiff, even assum-
ing the existence of negligence on the part of the defendants or
their servants; secondly, that the plaintiff by his own negligence
contributed to the accident; and, thirdly, that, even if there was
no contributory negligence on the part of the plaintiff, still the
maxim "Volenti non fit injuria" applied to the case.

My view is this. The ruL applicable to this case — I do not
say to all cases, for each case must depend on all its circumstances —
is that where a man is employed to do certan work, and knows that



(1897); Harris v. Clinton, 64 Mich. 447 (1887). In all these cases no dis-
tinction is drawn between assumption of risk and contributory negligence, but
in Indiana Oil Co. v. O'Brien, 160 Ind. 266 (1902), the two are held to be
"independent and separate defenses."



340 THRUSSELL V. HANDYSIDE

the work which he is doing is dangerous to others, and that accidents
are Hkely to happen, and knows that other persons are lawfully en-
gaged in other work, and are under an obligation to perform such
work, the person engaged in the dangerous work is subject to the
duty of using reasonable care, and taking precautions to prevent acci-
dents arising from the work in whch he is engaged. * * *

The next question is whether there was any evidence for the
jury of negligence on the part of the defendants or their servants;
I think there was. It is impossible to read the county court judge's
notes without coming to the conclusion that the defendants' servants
knew that there was danger of bolts falling on the men who were
working below. I think the circumstances shew abundant evidence
of negligence.

But this does, not determine the case, for the plaintiff may fail
on one of two grounds, either that he contributed to the accident
by his own negligence, or that the case comes within the maxim
"Volenti non fit injuria."

As to the first of these grounds I cannot find any evidence
which proves negligence on the part of the plaintiff.

The only remaining question is -whether the plaintiff took the
risk upon himself, so that the maxim "Volenti non fit injuria" ap-
plies. That question, as is shewn by the judgments in Yaniiouth v.
France, was for the jury. The plaintiff' was altogether unconnected
with the defendants or their workmen, but was an independent work-
man employed by Messrs. Lucas, and it is difficult to say, where a
man is lawfully working, subject to the orders of his employers,
and to the risk of dismissal if he disobeys, that if, after asking
for and failing to obtain protection from the danger caused by other
people's work, he suffers injury, the maxim "Volenti non fit injuria"
applies. It is true that he knows of the danger, but he does not
wilfully incur it. "Scienti," as was pointed out in Thomas v. Quar-
termaine and in Yarmouth v. France, is not equivalent to "volenti."
It cannot be said, where a man is lawfully engaged in work, and
is in danger of dismissal if he leaves his work, that he wilfully
incurs any risk which he may encounter in the course of such work,
and here the plaintiff had asked the defendants' men to take care.
It is different where there is no duty to be performed, and a man