Page:Harvard Law Review Volume 8.djvu/473

457 VOLENTI NON FIT INJURIA. 457 VOLENTI NON FIT INJURIA IN ACTIONS OF NEGLIGENCE. Proper Relations of the Doctrine. IN the well-known words of Baron Alderson,^ " Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do," — "provided, of course, that the party whose conduct is in question is already in a situation that brings him under the duty of taking care," is the necessary qualification made by Pollock.^ Smith defines negligence as being " a breach of duty uninten- tional, and proximately producing injury to another possessing equal rights."^ Beven says, " Negligence is the failure to bestow the care and skill which the situation demands." * Each of these definitions falls back upon some " duty " as the ultimate test, and no one is complete until further explanation is given as to what giyes rise to the duty. The principle laid down by Brett, M. R.,^ is probably the best general expression of the foundation of duty: "Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think, would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause ® danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." ' There is no such thing, then, as negligence in the abstract, but the terms " negligence " and " duty " are correlative. Whenever neg- 1 Blyth V. Birmingham Water Works Co., 11 Exch. 784 (1856). 8 Smith on Negligence, p. 6. ^ Heaven v. Pender, 11 Q. B. D. 508 (1883). • Should not this be amended, "he would reasonably and probably cause" ? "^ It should be noticed that this proposition may be somewhat too wide. This duty cannot be applied to persons in the natural user of their land. Cf. Clerk and Lindsell on Torts, p. 361.
 * Pollock on Torts, p. 354. * Beven on Negligence, p. 345.