Francis H. (Francis Hermann) Bohlen.

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takes his chance of the danger, for there he voluntarily encounters
the risk. If the plaintiff could have gone away from the dangerous
place without incurring the risk of losing his means of livelihood,
the case might have been different; but he was obliged to be there;
his poverty, not his will, consented to incur the danger. * * *

The case of Woodley v. Metropolitan District Ry. Co., 2 Ex.
D. 384, was relied on by Mr. Lush as an authority in favour of the
defendants, and at first sight it looks somewhat like the present case,
but when the facts of the two cases are compared there is a clear
distinction. The plaintiff in that case was in the employment of a
contractor and was injured by a passing train while he was working
in a tunnel on the Metropolitan District Railway, and he brought
an action against the railway company. It was proved that there
was a very small space between the wall of the tunnel and the



THRUSSELL V. IIANDYSIDE 34^

passing train, but still the space was enough, if a workman was
careful, to enable him to stand in safety while a train passed. It
is true that the jury found that there was negligence on the part
of the company in not having taken precautions for the protection
of the workman, but the plaintiff having it in his power to protect
himself, and knowing that the danger existed, the majority of the
Court of Appeal held that he was not entitled to recover. He was
injured not owing to an inevitable cause, but owing to a danger
which by the use of proper care he might have avoided. In the
present case the plaintiff could not have avoided the danger, unless
he had disobeyed the orders of his employers, and incurred the risk
of dismissal.^

For these reasons I am of opinion that the question was for the
jury, and they have found that the defendants were guilty of negli-
gence in not taking proper precautions, that there was no con-
tributory negligence on the part of the plaintiff, and that he did not
voluntarily incur the risk. This verdict must therefore be supported,
and the appeal will be dismissed.

Grantham, J. I am of the same opinion. I think a sirnple
statement of the facts is sufficient to shew that the jury have given
a right verdict. The plaintift"s work was not dangerous to himself
or to others, while the work on which the defendants' workmen were
employed were clearly proved to be extremely dangerous to those
who were engaged in work below, and it is impossible to come to
any other conclusion than that the defendants were bound to take
precautions to obviate that danger. The decision in Thomas v.
Qnartcrmainc is not in point, for the question in that case arose
between master and servant. In the present case if it had been im-
possible for the defendants to take precautions against the danger
it might perhaps have been suggested that the plaintiff was bound



^ It would seem that the true distinction between the two cases is this :
Thrussell was not upon the premises of the defendant nor was his right to
work where he did dependent upon the defendant's invitation or consent, while
Woodley had no right to come upon the defendant's line save by virtue of the
Company's invitation to him as a workman in the service of a contractor
employed by them to do work thereon. "That which would be negligence in a
company, with reference to the state of their premises or the manner of
conducting their business, so as to give a right to compensation for an injury
resulting therefrom to a stranger lawfully resorting to their premises ni
ignorance of the existence of the danger, will give no such right to one. who,
being aware of the danger [and held, the plaintiff knew, not only that the
work was to be done while the line was in operation, but also the manner in
which llic traffic was carried on and the danger attendant thereon] voluntarily
encounters it." Cockburn. C. J.. L. R. 2 Ex. D. (1877). p. 390. So in U ood
v. Loche, 147 Mass. 604 (1888), where a brakeman of a railroad company
having by contract the right to use the defendant's tracks and yard \vas
injured by a switch thereon, known by him to be defective. AV. Allen, J., said :
"The plaintiff, in going to work upon the tracks at the invitation of the
defendant contained in the contract with his employer, assumed, as against
the defendant, the obvious and known risks of the employment arising from
the defective construction or condition of the road, as fully as if he had gone
upon the tracks under a contract with the defendant as his servant," p. 606.
See also Memhcrv v. Rv.. L. R. 14 A. C. t79 (t88o^ : Stcrcus v. Gas Co.. 7?,
N. H. 159 (1905)^ and Wagner v. Boston Elez: Ry., 188 Mass. 437 (1905)-



342 OSBORNE V. LONDON & NORTH WESTERN RY. CO.

to take his chance, but the evidence shews tliat the facts were the
Other way.

Appeal dismissed.^



OSBORNE V. LONDON & NORTH WESTERN RAILWAY

CO.

Queen's Bench Division, 1888. L. R. 21 Q. B. D. 220.

The plaintiff was injured by falhng on steps leading to the
defendants' railway station, which the defendants had allowed to be
slippery and dangerous. There was no contributory negligence on
the part of the plaintiff', but there were other steps which he might
have used, and he admitted that he knew that the steps were dan-
gerous, and went down carefully holding the handrail.^

The County Court Judge was of opinion that the accident was
primarily caused by the worn and defective state of the steps, which
was aggravated by the frosty weather, which made them slippery
in addition, that the steps had not been properly and efficiently swept
and cleaned from the caked snow, which, added to the worn con-
dition of the steps, caused the plaintiff to fall, and that there was
no contributory negligence on the part of the plaintiff, and gave
judgment for the plaintiff for 2^1., the amount being agreed.

Wills, J. It seems to me to follow that in such a case as the

^ So a landowner is not bound to abandon the ordinary use of his pasture
land because of the neglect of a railroad to perform its statutory duty to fence
its adjoining right of way. Rogers v. Neiuburvport R. R., I Allen, 16 (Mass.
1861) ; Shepard v. R. R., 35 N. Y. 641 (1866)"; McCoy v. R. R., 40 Cal. 532
(1871) ; Donovan v. R. R., 89 Mo. 147 (1886) ; but see Krum ct al. v. Anthony,
115 Pa. 431 (1886) where, however, the duty to fence alleged was not statu-
tory or common law, but one arising out of an agreement with the defendant,
the owner of the adjoining land.

So "while a person confines himself to a lawful employment on his own
premises, his position, however injudicious or imprudent it may be, is not
therefore wrongful, * * * so as to deprive him of redress for wrongs done
him by others." Beardsley, J., Cook v. Cliamplain Transp. Co., i Denio, 91
(N. Y. 1845), frame mill built near steamboat landing; Vaughan v. Taff Vale
Ry., 3 H. & N. 742 (1858), inflammable material left near railway right of
way; Kellogg v. C. & N. W. R. R., 26 Wis. 223 (1870) ; Flynn v. R. R., 40
Cal. 14 (1870) ; Phila. & R. R. R. v. Hendrickson, 80 Pa. 182 (1876) ; R. R. v.
Schults, 93 Pa. 341 (1880), similar facts, but see contra, Post v. R. R., 108 Pa.
585 (1885), and Confer v. R. R., 146 Pa. 31 (1891), sevible.

Where the landlord of an apartment, retaining in his possession and
under his control the stairways and approaches thereto, is bound to repair
them, neither the tenant nor one using the approaches in his right assumes the
risk of their known or obviously bad condition ; Looney v. McLean, 129 Mass.
22, ("1880 j ; Dollard v. Roberts, 130 N. Y. 269 (1891) ; I del v. Mitchell, 5 N. Y.
App. Div. 268 (1896) ; Marwedel v. Cook, 154 Mass. 235 (1891). Where the
landlord, having covenanted to repair the premises leased to a tenant and in
the latter's exclusive possession and control, fails to make such repair, a
different question is presented, the landlord's duty is wholly contractual and
the covenant is taken to relate to the cost and burden of making the repairs
and not to the protection of the tenant or his guests from injury — the tenant's
only remedy is to repair himself and deduct the expense from the rent or to
leave the premises, but see Mathew, L. J., Cavalier v. Pope, L. R. 1905, 2 K, B.
pp. 766-767.

*The facts are as stated in the head note.



OSBORNE v. LONDOX & NORTH WESTERN RV. CO. 343

present, where the existence of neghgencc on tlie part of the de-
fendants, and the absence of contributory neghgence on the part of
the plaintiff, are specifically found as matters of fact, if the defend-
ants desire to succeed on the ground that the maxim "Volenti non
fit injuria" is applicable, they must obtain a finding of fact "that the
plaintiff freely and voluntarily, with full knowledge of the nature
and extent of the risk he ran, impliedly agreed to incur it." I agree
with Mr. Wills that this is a question of fact, and, this being so, it
follows that defendants could not succeed unless either they had a
finding of fact in their favour, or we had all the facts before us, so
that we were in a position to decide the question. * * *

In the present case tlie plaintiff may well have misapprehended
the extent of the dfficulty and danger which he would encounter in
descending the steps ; for instance, he might easily be deceived as to
the condition of the snow ; I know quite enough about ice and snow
to know how easy it is to make such a mistake, and it is one that
1ms cost many a man his life. In order to succeed the defendants
should have gone further in cross-examination, for, unless the
question of fact had been found in their favour, the application of
the maxim on which they relied could not be established. The
County Court Judge has not found the fact the defendants need ;
and upon the present materials I certainly am not prepared to supply
the deficiency.

For these reasons, the onus of proof being on the defendants,
I think that on the evidence as it stands their defence is not made
out, and therefore their appeal must be dismissed.

Grantham, J. I am of the same opinion.

I think that the jud;;ment of Bowen, L. J., in Thomas v.
Qiiartcrmainc (i8 O. B. D. 685) confirms the view which I take,
that the maxim "A'olenti non fit injuria", does not apply to such a
case as the present. If it did it would go to the root of the liability
of all persons who would otherwise be liable to provide safe premises
or safe machinery. For instance, in the case of a stage coach, if a
passenger sees that one of the horses is vicious, is he bound to stay
at home and give up his journey, or if he does not do so. and suffers
injury, is he to lose all remedy?- The same considerations would

* In England until the Railway and Canal Act of 1834 a common carrier
might by notice to the shipper or passenger relieve itself from liability for its
own or its servant's negligence, Hutchinson on Carriers, 3rd ed.. §§ 390-398.
See also 20 Harv. L. R., pp. 23-24. But in the great majority of American
jurisdictions it is held that even an express agreement by the passenger or
shipper to such effect is against public policy and void, Hutchinson on Car-
riers, 3rd ed., §§ 450-458. While the reason sometimes given is that suc!i
exemptions tempt the carrier to carelessness that may imperil others than the
particular shipper or passenger, Quimby v. R. R.. 150'Mass. 365 (1890'). p. 370.
the reason usually given is that the carrier and his customer do not stand on a
footing of equality and that the latter has no real freedom of choice. He
has no alternative but to submit to the carrier's terms or abandon his right
to the performance by the carrier of its duty to accommodate him as one of
the public in the line of its employment. Railroad Co. v. Lockivood. 17 Wall.
3S7 (18-3). p. 379-

Where, however, the carrier is not performing its duty as a common
carrier and the passenger or shipper is not asserting his right as one of the
public to accommodation upon payment of fare or freight, but on the contrary



344 OSBORNE V. LONDON & NORTH WESTERN RY. CO.

apply in the case of a railway. It seems to me that the whole diffi-
culty in the present case arises from the answer of the plaintitt to a
question put to him in cross-examination being too much relied on.
\\'hat he meant was that he knew there was some danger in going
down the steps, and that it was necessary to be careful, but he
thought he could get down safely with the assistance of the handrail.
The only chance for the defendants was to shew contributory negli-
gence on the part of the plaintiff, and this they have failed to shew.

Appeal dismissed; leave to appeal refused.^



he or his goods are carried not for hire, but gratuitously, a service which is
entirely outside the carrier's pubhc duties and to which the public are not of
right entitled, the passenger "is not in the power of the company and obliged
to accept its terms. They stand on a perfectly even footing. He freely and
voluntarily chooses to accept the privilege offered, and having accepted the
privilege he cannot repudiate the conditions." Brewer, J.. N. P. Ry. Co. V.
Adams, 192 U. S. 440 (1903), p. 453 (the cases accord and contra are cited,
p. 452). So when the passenger or shipper is given a' special service outside
the railroad's duties as common carrier and which it is free to grant or refuse
as it may please, B. & O. R. R. v. Voigt, 176 U. S. 498 (1899, citing numerous
decisions to the same effect), employee of express company whose cars were
carried by defendant under a special agreement.

'But see Goldstein v. R. R., 46 Wis. 404 (1879), where it was held that a
plaintiff, who in order to get freight shipped to him by the defendant's road,
drove along a narrow unguarded passage to the freight station, "did this
voluntarily and must have known the peril to which he was exposing his
property and person," and could not recover for injuries received thereby.
The plaintiff's statement, however, left it uncertain whether there was not
another though less convenient mode of access and the passage which was
safe for one team was narrowed and so made dangerous by a temporary
obstruction, another team standing in the passage. See 20 Harv. L. R. 19, n. 5,
and see Miner v. R. R., 153 Mass. 398 (1891).

Where a train overshoots the platform at the passenger's destination so
that it is obviously somewhat dangerous to alight, it was held in Rose V.
N. E. Ry., L. R. 2 Ex. D. 248 (1876), that "if the passenger is satisfied that
the train is going on, and there is apparently no alternative but to get out, he
must do as best he can." "Can it be said that he was to sit still and be
carried on to the next station, perhaps forty or fifty miles off, and then be
liable to be called upon to pay the full fare for the whole distance, and to be
exposed to various inconveniences — can that be seriously contended?" Cock-
burn, C. J., p. 251. Accord: Rohson v. A^ E. Ry., L. R. 2 Q. B. D. 85 (1876) ;
.Staines v. R. R.. 72 N. J. L. 268 (1905). But see Bramwell and Martin, B. B.,
in Siner v. Ry., L. R. 3 Ex. 150 (1868), who were of opinion that the passenger
"should sit in the carriage and be carried beyond where he wants to go
and then bring his action against the company for not affording him proper
accommodation to get out," L. R. 5 Ex. D., p. 35- In fact, in Siner's case the
passenger had a. third alterative, which she did not choose to adopt. She
might have at least asked that the train be put back. Pigott, B.

So in Filer v. R. R., 49 N. Y. 47 (1872), it was held that a passenger, who,
being informed that a train, which had merely slowed down at her destination,
would not stop again and that she had better get off, being "put to her choice
whether to obey the advice of the defendant's servant or to remain on the car
and be carried beyond her destination," might recover for injuries received in
the attempt to alight, if she used care in the attempt proportionate to the
danger and if the cars were not moving so fast that to alight Mrould
obviously lead to almost certain injury.



ECKERT V. LONG ISLAND RAILROAD COMPANY 345

ECKERT V. LONG ISLAND RAILROAD COMPANY.
Court of Appeals of New York, 1871. 43 A^. Y. 502.

Grover, J. The important ciuestion in this case arises upon the
exception taken by the defendant's counsel to the denial of his
motion for a nonsuit, made upon the ground that the negligence of
the plaintiff's intestate contributed to the injury that caused his
death. The evidence showed that the train was approaching in
plain view of the deceased, and had he for his own purposes at-
tempted to cross the track, or with a view to save property placed
himself voluntarily in a position where he might have received an
injury from a collision with the train, his conduct would have been
grossly negligent, and no recovery could have been had for such
injury. But the evidence further showed that there was a small
child upon the track, who, if not rescued, must have been inevitably
crushed by the rapidly approaching train. This the deceased saw,
and he owed a duty of important obligation to this child to rescue
it from its extreme peril, if he could do so without incurring great
danger to himself. Negligence implies some act of commission or
omission wrongful in itself. Under the circumstances in which the
deceased was placed, it was not wrongful in him to make every effort
in his power to rescue the child, compatible with a reasonable regard
for his own safety. It was his duty to exercise his judgment as to
whether he could probably save the child without serious injury to
himself. If, from the appearances, he believed that he could, it was
not negligence to make an attempt so to do, although believing that
possibly he might fail and receive an injury himself. He had no
time for deliberation. He must act instantly, if at all, as a moment's
delay would have been fatal to the child. The law has so high a
regard for human life that it will not impute negligence to an effort
to preserve it, unless made under such circumstances as to constitute
rashness in the judgment of prudent persons. For a person engaged
in his ordinary aft'airs, or in the mere protection of property, know-
ingly and voluntarily to place himself in a position where he is liable
to receive a serious injury, is negligence, which will preclude a
recovery for an injury so received ; but when the exposure is for
the purpose of saving life, it is not wrongful, and therefore not
negligent unless such as to be regarded either rash or reckless. The
jury were warranted in finding the deceased free from negligence
under the rule as above stated. The motion for a nonsuit was. there-
fore, properly denied. That the jury were warranted in finding the
defendant guilty of negligence in running the train in the manner
it was running, requires no discussion. None of the exceptions taken
to the charge as given, or to the refusals to charge as requested,
affect the right of recovery. L^pon the principle above stated, the
judgment appealed from must be affirmed with costs.

Church, Ch. J., Peckham and Rapallo, JJ., concur.^



^Accord: Gibney v. State, 137 N. Y. i (1893"), parent drowned while at-
tempting to rescue his child, who had fallen through an unguarded hole in a
bridge; Miller v. 7^. R.. 191 X. Y. 77 (1908), semblc; Corbin v. City, 195 Pa.



346 ECKERT V. LONG ISLAND RAILROAD COMPANY

Allen, J. (dissenting). The plaintiff's intestate was not placed
in the peril from which he received the injury resulting in his death,
by any act or omission of duty of the defendants, its servants, or
agents. He went upon the track of the defendant's road in front
of an approaching train, voluntarily, in the exercise of his free
will, and while in the full possession of all his faculties, and with
capacity to judge of the danger. His action was the result of his
own choice, and such choice not compulsory. He was not com-

461 (1900), plaintiff's decedent suffocated by gas in trench into which he had
descended to rescue a boy also overcome by gas therein; Linnehan v. Sampson,
126 Mass. 506 (1879), bystander gored while attempting to assist man attacked
by bull; Donahoe v. R. R., 83 Mo. 560 (1884), mother attempting to rescue
child from approaching engine; Peyton v. Tex. Pac. R. R., 41 La. Ann. 861
(1889) ; Pa. Co. v. Langcndorf, 48 Ohio, 316 (1891), similar facts; Mobile &
Oh. R. R. V. Ridley, 114 Tenn. 727 (1905), employee of railroad trying to
rescue a boy standing on track with his back to approaching engine ; Pa. Co. v.
Roney, 89 Ind. 453 (1S83), engineer staying upon engine in effort to avert
collision; Cottrill v. R. R., 47 Wis. 634 (1879), similar facts; Condi ff v. R. R.,
45 Kans. 256 (1891), section foreman, struck while attempting to remove
hand car from track and so avert collision ; Maryland Steel Co. v. Marney, 88
Md. 482 (1898), workman attempting to stop escape of molten metal which
threatened serious injury to his fellow workmen; a fortiori, this is so where
the plaintiff occupies some position making it his duty to act for the protection
of others, Muhs v. Ins. Corps., 89 N. Y. App. Div. 389 (1903), policeman
injured while stopping runaway patrol wagon.

While the question has never been decided in England, Sir Frederick
Pollock, in his work on Torts cites Eckert v. R. R., with approval, 8th ed.,
481, and see Beven, Negligence, 3rd ed., p. 156 et seq., and Wilkinson v.
Kinneil Co., 24 Rettie, looi (Scot. 1897), a boy who had jumped from a
wagon toward which another was rapidly approaching and was in a place of
safety was injured while attempting to stop the oncoming car, which threat-
ened a fellow workman who had remained on the wagon ; Lord Young was of
opinion that, it being his duty to attempt to save his companion, he was not
precluded from recovery by putting himself again in peril for that purpose,
Lords McLaren, Moncreiff and Kinnear held that the plaintiff, who was
himself originally imperilled, could not be said to have failed to exercise
reasonable care for his own safety because he paid regard to his companion's
safety as well as his own, while Lords Justice Clerk, Trayner and Adam were
of opinion that, though the boy's proceedings were well intentioned and deserv-
ing of reward, "his action was, in the strictest sense, voluntary, and volenti
tion fit injuria."

The plaintiff is not entitled to recover merely because injured in a merito-
rious or even heroic effort to save human life; he must show that the person
whose rescue he attempted was imperilled by some misconduct of the defend-
ant, Evansvillc, etc., R. R. v. Hiatt, 17 Ind. 102 (1861) ; Donahoe v. R. R.,
supra; Gramlich v. Wiirst, 86 Pa. 74 (1878) ; or that the defendant has been
guilty of some negligence toward the plaintiff after his attempt to rescue the
imperilled person is discovered, Donahoe v. R. R., supra. Nor can the
plaintiff recover if he by his own fault has contributed to put in peril the
person whose rescue he attempts. Walker v. Shreveport Gas Co., 120 La. Ann.
68 (1907) ; Miller v. R. R., supra. But the fact that the person whose rescue
is attempted could himself, if injured, not have recovered against the defend-
ant, because his own fault has contributed to his peril, will not defeat the
plaintiff himself innocent of any contributory misconduct, Ridley v. R. R..
supra. In Saylor v. Parsons, 122 Iowa, 670 (1904), it was held that a plaintiff
injured while attempting to prop up a wall, which threatened to fall upon the
defendant who had carelessly undermined it, could not recover against the
defendant, since the defendant's duty to protect himself from harm being
moral only and not legal, his conduct exposing himself to danger was not
negligence.



ECKERT f. LONG ISLAND RAILROAD COMPANY 347

pelled, or apparently compelled, to take any action to avoid a peril,
and harm to himself, from the negligent or wrongful act of the
defendant, or the agents in charge of the train. The plaintiff's
rights are the same as those of the intestate would have been, had
he survived the injury and brought the action, and must be tested
by the same rules; and to him and consequently to the plaintiff, the
maxim volenti non fit injuria applies. It is a well established rule,
that no one can maintain an action for a wrong, when he consents or
contributes to the act which occasions his loss. One who with
liberty of choice, and knowledge of the hazard of injury, places
himself in a position of danger, does so at his own peril, and must
take the consequences of his act. This rule has been applied to
actions for torts as well as to actions upon contract, under almost
every variety of circumstance.