(2) Employee's Assumption of Risk 687. SEYMOUR v. MADDOX. (1851, 16 Q. B. 326, 332.) ERLE, J. Here it is stated that the defendant held a theater in which he hired the plaintiff to perform, that on part of the premises there was a hole in the floor along which the plaintiff had to pass in discharge of his duty as a performer, and that it was the duty of the defendant to light the floor sufficiently, so as to prevent accidents to those who had to pass along it. Was any such duty cast upon the defendant? I think not. A person must make his own choice whether he will accept employment on premises in this condition; and, if he do accept such employment, he must also make his own choice whether he will pass along the floor in the dark or carry a light. If he sustain injury in consequence of the premises not being lighted, he has no right of action against the master who has not contracted that the floor shall be lighted. . . . ... 688. THOMAS V. QUARTERMAINE. (1887, L. R. 18 Q. B. D. 674, 685.) BOWEN, L. J. In the present instance the injured person has fallen into a more or less unfenced vat open to view, in a room in which he had been at work for many months; the full danger and risk of which were as well known to himself as to his master or to any one else upon the premises. The County Court judge has found that the plaintiff knew, but has added a further finding that the plaintiff was guilty of no contributory negligence. . dry grass and weeds, and the fire faultily emitted by the defendant's engines set fire to the right of way, whence it spread to this dry inflammable material, and thence to the plaintiff's buildings, which were destroyed. The defendant requested an instruction that the plaintiff's failure to clear off the grass, weeds, and stubble on his own land was negligence per se, and barred his recovery. Would this be correct? (1870, Kellogg v. Chicago & N. W. R. Co., 26 Wis. 223.) ESSAYS: Charles Warren, "Volenti non fit Injuria in Actions of Negligence." (H. L. R., VIII, 457.) Francis H. Bohlen, "Voluntary Assumption of Risk" (H. L. R., XX, 14, 91.) T. Beven, "Volenti non fit injuria." (Journal of Compar. Legislation, 1908, VIII, 185.) NOTES: "Assumption of risk: Caged Animals." (C. L. R., VI, 538.) Assumption of risk: Initiating member into Lodge." (C. L. R., VII, 616.) "Avoidable Consequences Carriers." (C. L. R., XI, 84.) "Injury sustained in Saving Property endangered by Another's Negligence." (H. L. R., XXIV, 406.) "Duty to Rescuer of Person Endangered by Defendant's Negligence." (H. L. R., XXIV, 407.) "Injury received in Attempt to Save Another." (M. L. R., II, 422.) "Contributory Negligence — Saving Life" (M. L. R., IX. 353.) "Contributory Negligence-Voluntary Acts in Saving Property." (M. L. R., IX, 366.) "Contributory Negligence Imputed to a Passenger." (M. L. R., IX, 520.) "The Right of a Rescuer to Recover Damages." (Y. L. J., XX, 318.)] (1) Contributory negligence to the accident, in such a sense as to render the defendant's breach of duty no longer its proximate cause . . [was not here found to exist]. (2) 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 cognizant of the full extent of the danger, and voluntarily run the risk. "Volenti non fit injuria.” . . . It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier must be a knowledge under such circumstances as leads necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not “scienti non fit injuria," but "volenti." It is plain that mere knowledge may not be a conclusive defence. . . . But when it is a knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encountered, the defence seems to me complete. In finding that the defendant was guilty of no contributory negligence, the County Court judge has left untouched the above defence, which is outside the principle of contributory negligence altogether. . . . 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. . . . These two defences, that which rests on the doctrine "volenti non fit injuria" and that which is popularly described as contributory negligence, are quite different. . . . 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 that 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 voluntary encountering of the risk. ... 689. SMITH v. BAKER. (1891, Appeal Cases 325, 334.) Lord HALSBURY, L. C. The action was an action in which the plaintiff sued his employers for injuries sustained while in the course of working in their employment. . . . Occasionally, though not invariably, the stones lifted by the crane were swung over the place where the plaintiff was employed, and on the occasion which gave rise to the action a stone was swung over the plaintiff, and from some cause not explained and not attempted to be explained, the stone slipped from the crane, fell upon the plaintiff, and did him serious injury. . . . The plaintiff said he had been long enough at work to know that it was dangerous, and another fellow-workman in his hearing complained that it was a dangerous practice. . . . The question of law that seems to be in debate is whether upon these facts, and on an occasion when the very form of his employment prevented him looking out for himself, he consented to undergo this particular risk, and so disentitled himself to recover when a stone was negligently slung over his head or negligently permitted to fall on him and do him injury. My Lords, I am of opinion that the application of the maxim "Volenti non fit injuria" is not warranted by these facts. I do not think the plaintiff did consent at all. . . . It appears to me that the proposition upon which the defendants must rely must be a far wider one than is involved in the maxim, "Volenti non fit injuria." I think they must go to the extent of saying that wherever a person knows there is a risk of injury to himself, he debars himself from any right of complaint if an injury should happen to him in doing anything which involves that risk. For this purpose, and in order to test this proposition, we have nothing to do with the relation of employer and employed. The maxim in its application in the law is not so limited; but where it applies, it applies equally to a stranger as to any one else; and if applicable to the extent that is now insisted on, no person ever ought to have been awarded damages for being run over in London streets; for 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. It is, of course, impossible to maintain a proposition so wide as is involved in the example I have just given. . . . BOWEN, L. J., carefully points out in the earlier case (Thomas v. Quartermaine) that the maxim is not "Scienti non fit injuria," but "Volenti non fit injuria.” . . . I am of opinion myself, that in order to defeat a plaintiff's right by the application of the maxim relied on, who would otherwise be entitled to recover, we ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself. It is manifest that if the proposition which I have just enunciated be applied to this case, the maxim could here have no application. . . . As I have intimated before, I do not deny that a particular consent may be inferred from a general course of conduct. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to consent to the thing which he himself is doing. And examples might be indefinitely multiplied where the essential cause of the risk is the act of the complaining plaintiff himself, and where, therefore, the application of the maxim, "Volenti non fit injuria," is completely justified. . ... Lord WATSON. The maxim, "Volenti non fit injuria," originally borrowed from the civil law, has lost much of its literal significance. A free citizen of Rome who, in concert with another, permitted himself to be sold as a slave, in order that he might share in the price, suffered a serious injury; but he was in the strictest sense of the term "volens." The same can hardly be said of a slater who is injured by a fall from the roof of a house; although he too may be "volens" in the sense of English law. In its application to questions between the employer and the employed, the maxim, as now used, generally imports that the workman had either expressly or by implication agreed to take upon himself the risk attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his master's. ... 690. SCHLEMMER v. BUFFALO, Rochester, and Pittsburg R. Co. (1906, 205 U. S. 1, 11.) HOLMES, J. It is enacted by § 8 of the Act that any employee injured by any car in use contrary to the provisions of the Act, shall not be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase "assumption of risk" was the establishment of the exception to the liability of a master for the negligence of his servant when the person injured was a fellow servant of the negligent man. . . . But, at the present time, the notion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions (as of machinery, premises and the like) which the injured party understood and appreciated when he submitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes, on a general principle of our law. . . . Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64, 68. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind. SUB-TITLE (IV): PLAINTIFF A LAW-BREAKER 692. JUSTINIANUS. Digesta, XXIV, 3, 39 (Papinianus). Ea lege, quam ambo contempserunt, neuter vindicetur; par enim delicta mutua pensatione dissolvitur. Ibid. L, 17, 154 (Ulpianus). Cum par delictum est duorum, semper oneratur petitor, et melior habetur possessoris causa. 693. HERBERT BROOM. A Selection of Legal Maxims. (3d ed., 1852, pp. 566, 567, 571, 209, 220.) "Cum par delictum est duorum, semper oneratur petitor et melior habetur possessoris causa." . . . It seems that the true test for determining whether or not the objection that the plaintiff and defendant were in pari delicto can be sustained, is by considering whether the plaintiff can make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party. ... "Ex Dolo Malo non oritur Actio." (Cowp. 343.) (A right of action cannot arise out of fraud.) It has been thought convenient to place the above maxim in close proximity to that which precedes it, because these two important rules of law are intimately related to each other, and the cases which have already been cited in illustration of the rule as to par delictum may be referred to generally as establishing and justifying the position, that an action cannot be sustained which is founded in fraud, or which springs ex turpi causa. ... "Nullus commodum capere potest de injuria sua propria." (Co. Litt. 148, b.) (No man shall take advantage of his own wrong.) It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. . . . In conclusion, we may remark that the rule above illustrated is, in principle, very closely allied to the maxim "ex dolo malo non oritur actio," which is likewise of very general application, and will be treated of more conveniently hereafter in the Chapter upon Contracts. The latter maxim is, indeed, included, in that already noticed; for it is clear, that, since a man cannot be permitted to take advantage of his own wrong, he will not be allowed to found any claim upon his own iniquity-"Nemo ex proprio dolo consequitur actionem;" and, as we commenced with observing, "frustra legis auxilium quaerit qui in legem committit." 694. HOLMAN v. JOHNSON. (1775, Cowp. 341.) Lord MANSFIEld, C. J. The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: "ex dolo malo non oritur actio." No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appears to arise "ex turpi causa," or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because the will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, |