Page:Harvard Law Review Volume 8.djvu/478

462 462 HARVARD LAW REVIEW, gence has been extended to conduct showing a wiHingness to take the chances of the defendant's action, and to run the risk, i. e. a general assent to a condition which may or may not give rise to the particular injury. It is sometimes said that the defence, being but a maxim, must not be arbitrarily and fixedly applied. But as Lord Bramwell said in Smith v. Baker,^ " If this is a maxim, is it any the worse? What are maxims but the expression of that which good sense has made a rule; " and Lord Herschell, in the same case,^ " The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him, cannot, when he suffers frcm it, complain of it as a wrong." The defence, although well recognized in general terms through- out actions for negligence, has been expressly applied by name in very few cases until in recent years. In actions of negligence, it first prominently appeared in the famous spring-gun case of Ilott v. Wilkes^ (1820), where, in case of one trespassing in a wood, with notice of spring-guns set there, and being injured, Bayley, J., held, "The maxim Volenti noti fit injuria applies, for he voluntarily exposes himself to the mischief which has happened. . . . He does it at his own peril, and must take the consequences of his own act." In Skipp v. Eastern Counties Ry. Co.* (1853), it was the plaintiff's duty to attach the carriages ; there was evidence of danger, and that the company did not provide enough servants for the safe performance of the work. The plaintiff had been employed several months. Martin, B., held that the plaintiff had " brought the accident upon himself." Piatt, B., said, " The case falls within the principle Volenti non fit'' Martin, B., " I considered the plaintiff as a voluntary agent." In Senior ^'. Ward^ (1859), the plaintiff was injured by a defective rope which by rule should have been tested by his employer, but which he" knew had not been so tested, and which he was warned by the bankman to test for himself. Campbell, C. J., held, " The negligence of the plaintiff, which materially contributed to the accident, would, upon well-estabhshed principles, have deprived him of any remedy, — Volenti non fit injuria'' In this case we meet with the confusion of ideas between the two defences of 1 Smith V. Baker, 1891, App. Cas. 325, p. 344. 2 idem, p. 360. 8 Ilott V. Wilkes, 3 B. & Aid., p. 311 (1820). (1858). See also Dynen v. Leach, 26 L. J. Exch. 221. 6 Senior v. Ward, i E. & E. 385 (1859).
 * Skipp V. Eastern Counties Ry., 9 Exch. 223 (1853) ; Assopz/. Yates, 2 H. & N. 768