Page:Harvard Law Review Volume 8.djvu/477

461 VOLENTI NON FIT INJURIA. 461 dent, therefore, that when the case of a plaintiff exposing himself to a known danger is given to the jury, the first question for them is not one of due care. " It may be consistent with due care to incur a known danger voluntarily and deliberately." The jury should be charged that, before investigating whether he was care- less or not, they should decide whether he had consented by his action to run the chances of a fully appreciated danger voluntarily. If this is decided affirmatively there is no further need of a decision upon the plaintiff's care or want of care. If the jury finds, how- ever, that the danger was not fully appreciated, or not undertaken voluntarily, then they should be charged to consider whether the plaintiff, in the exercise of due care, should or could have avoided the danger. In other words, a plaintiff is debarred from showing a want of contributory negligence in himself, until he first proves that he has not voluntarily run the risk.-^ Of course where an absolute liability is created by statute, and an action given thereby for neglect, as in the cases under the statute liability of towns and cities for defective highways, then the primary question for the jury is one of negligence on the part of the plaintiff, because the duty and liability on the part of the defendant are already created. It is submitted that this fact has not been duly regarded, and a confusion has been introduced through the citation by the courts of cases of this nature upon the subject of Volenti? Development of the Doctrine. Originally, as borrowed from the old civil law, the maxim meant a defence arising from a specific assent by the party injured to a particular act, which, if done without such assent, would be a legal wrong. The scope of the defence as applied in actions for negH- conduct of the plaintiff in exposing himself to a knovm and appreciated risk, is the interposition of an act which, as between the parties, makes the defendant's act, in its aspect as negligent, no longer the proximate cause of the injury." Fitzgerald v. Conn. River R. R., 155 Mass. 156 (1891). This really is a correct statement of the true rule of contributory negligence. It is not a statement of the rule of " volenti," as laid down in the English, and most of the other Massachusetts cases. 1 Cf. Buswell on Personal Injuries, § 210. It is submitted that the case of Dewire V. Bailey, 131 Mass. 171, holding that the fact of a person entering a building with knowledge of dangerous ice on sidewalk, is not evidence conclusive of want of due care, is wrong, as not submitting first to the jury the question of assumption of risk. 2 Cf. Wilson V. Charlestown, 8 Allen, 137 (1864); West v. Lynn, no Mass. 519 (1872) ; Dewire v. Bailey, 131 Mass. 169 (1881).