is known to him, and which does not depend on any one else's acts, or on the condition of the place where the work is done, but is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary (e).

Cases between employers and their workmen: Smith v. Baker. The principle expressed by volenti non fit iniuria is different from that of contributory negligence (f), as it is in itself independent of the contract of service or any other contract (g). It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but if he does voluntarily run the risk, he cannot complain afterwards (h). At the same time knowledge is not of itself conclusive. The maxim is volenti - not scienti— non fit iniuria; "the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law" (¿). A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and continuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk (k). As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an

(e) Membery v. G. W. R. Co. note (c), last page. Lord Bramwell's extra-judicial remarks cannot be supported: see per Lord Herschell, 14 App. Ca. at pp. 192, 193; and Smith v. Baker, note (i), p. 155.

Bowen L. J. in Thomas v. Quar. termaine (1887), 18 Q. B. Div. 685, 694, 697, 56 L. J. Q. B. 340.

(g) 18Q B. Div. at p. 698.

(h) Bowen L. J. 18 Q. B. Div. at p. 695. (i) Ibid. at p. 696; Lindley L. J. in Yarmouth v. France (1887), 19 Q. B. D. 647, 659, before judges of the C. A. sitting as a divisional Court.

(k) Yarmouth v. France, last note; Thrussell v. Handyside (1888), 20 Q. B. D. 359, 57 L. J. Q. B. 347; Smith v. Baker, '91, A. C. 325, 60 L. J. Q. B. 683.

express term) that the workman should accept that risk. Since the Employers' Liability Act has deprived the master, as we have already seen, of defense of "common employment" in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of "common employment might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency has been effectually checked by the decision of the House of Lords in Smith v. Baker (e). Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. "Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action" as in the case of works unavoidably producing noxious fumes. But where "a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer," there "the mere continuance in service, with knowledge of the risk," does not "preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty" (ƒ). And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is

(e) '91, A. C. 325.

(f) Lord Herschell, '91, A. C. at pp. 360, 362.

hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible (g).

Distinction where no negligence at all. Cases of volenti non fit iniuria are of course to be distinguished from cases of pure unexpected accident where there is no proof of any negligence at all on the defendant's part (h).. It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind (i).

In the construction of a policy of insurance against death or injury by accident, an exception of harm "happening by exposure of the insured to obvious risk of injury "includes accidents due to a risk which would have been obvious to a person using common care and attention (k).

Distinction from cases where negligence is ground of action. We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be

(g) Lord Halsbury, '91, A. C. at pp. 336-338.

(h) Walsh v. Whiteley (1888), 21 Q. B. Div. 371, 57 L. J. Q. B. 586.

(i) See Lord Morris's remarks in Smith v. Baker, '91, A. C. at p. 369. In Smith v. Baker itself, an appeal from a

County Court, this point, not having been raised at the trial below, was not open on the appeal. It was nevertheless extra-judicially discussed with considerable variety of opinion.

(k) Cornish v. Accident Insurance Co. (1883), 23 Q. B. Div. 453.

Distinction from cases where negligence is ground of action. Illustrating this distinction reference is made to the case of Pittsburg, etc. R. Co. v. Noel (77 Ind. 110), in which it was held, that the piling of wood by the plaintiff, with the consent of the defendant, along the line of defendant's railroad, where it was liable to and did take fire, did not constitute contributory negligence on the part of the plaintiff.

Again, it has been held in another case, that persons who have authorized the use of a locomotive on their premises have no right of action for damage done to their property by fire set by sparks from such locomotive. Spear v. Marquette, etc. R. Co., 49 Wis. 246.

Upon the distinction between lawful risk and negligence, by footmen in crossing streets the Supreme Court of Indiana says: "We agree that it is the duty of a person crossing, or about to cross, a public street on foot, to look and take precautions according to the character of the

applicable. It was suggested in Holmes v. Mather (1) that when a competent driver is run away with by his horses, and in spite of all he can do they run over a foot-passenger, the foot-passenger is disabled from suing, not simply because the driver has done no wrong, but because people who walk along a road must take the ordinary risks of traffic. But if this were so, why stop at misadventure without negligence? It is common knowledge that not all drivers are careful. It is known, or capable of being known, that a certain percentage are not careful. "No one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over" (m). The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless driving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence; which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver's duty is to use proper and reason

(7) L. R. 10 Ex. at p. 267.

(m) Lord Halsbury, '91, A. C. at p. 337.

thoroughfare, so as to avoid collision with approaching horsemen or vehicles; but it is obviously not necessary that the same high degree of vigilance should be demanded of a footman about to cross a public street, in order to avoid contact with a horseman who is likewise under a duty to be on the lookout, and to have his horse under careful control, as is required at railroad crossings over which engines and trains of cars are necessarily run at a rate of speed not readily governable." Stringer v. Frost, 116 Ind. 480; 19 N. E. Rep. 332, citing Wendell v. Railway Co., 91 N. Y. 420; Baker v. Savage, 45 N. Y. 191; Williams v. Grealy, 112 Mass. 79; Simmons v. Gaynor, 89 Ind. 165; Danils v. Clegg, 28 Mich. 32; Shapleigh v. Wyman, 134 Mass. 118; Coombs v. Purrington, 42 Me. 832. See post, p. 553.

able care, and beyond that he is not answerable. The true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another's duty to protect him, merely because the risk is known (n). Much he same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to consider in its place (0).

Works of necessity. A class of exceptions as to which there is not much authority, but which certainly exists in every system of law, is that of acts done of necessity to avoid a greater harm, and on that ground justified. Pull

(n) Smith v. Baker, '91, A. C. 325, 60 L. J. Q. B. 683; Thrussell v. Handyside (1888), 20 Q. B. D. 359, 57 L. J. Q. B. 347.

(o) See Gee v. Metropolitan R. Co. (1873), Ex. Ch. L. R. 8 Q. B. 161, 42 L. J. Q. B. 105; Robson v. N. E. R. Co. (1875),

L. R. 10 Q. B. at p. 274, 44 L. J. Q. B. 112; and per Bramwell L. J. (not referring to these authorities, and taking a somewhat different view), Lar v. Corporation of Darlington (1879), 5 Ex. D. at p. 35, 49 L. J. Ex. 105.

Works of necessity. Agreeing with the text, vide Beach v. Trudgain, 2 Gratt. 219; Sorrucco v. Geary, 3 Cal. 69; American Print. Works v. Lawrence, 23 N. J. L. J.; Hale v. Lawrence, Id. 590; Miller v. Craig, 11 N. J. Eq. 175; Taylor v. Plymouth, 8 Metc. 462; Fisher v. McGirr, 1 Gray, 11; McDonald v. Redburg, 13 Mass. 48; Penrice v. Wallace, 17 Mass. 172; Russell v. Major, 2 Denio, 561; Rentz v. Etna Ins. Co., 3 Edw. Ch. 341; Coe v. Schultz, 47 Barb. 64; Republican v. Sparhawk, 1 Dall. 357; Parkham v. Decatur, 9 Ga. 341; Proctor v. Adams, 113 Mass. 376; Burton v. McClellan, 3 Ill. 434; Bowditch v. Boston, 101 U. S. 16.

But "public interest" does not justify the commission of a wrong. Henderson v. Railroad Co., 17 Tex. 650; Boyle v. Case, 18 Fed. Rep. 880. See Harrison v. Wisdom, 7 Heisk, 99; Glenn v. Kays, 11 Ill. App. 479; Vossen v. Dantel (Mo.), 22 S. W. Rep. 734.

Self-defence may be termed a work of necessity, and as such is justifiable; see post, p. 201.