Page:Harvard Law Review Volume 8.djvu/479

463 VOLENTI NON FIT INJURIA. 463 contributory negligence and Volenti non fit, which has continued throughout all the cases on employers' liability [cf. infra]. In Britton v. Great Western Cotton Co.^ (1872), it was held the plaintiff must have full knowledge and understanding of the nature of the risk to which he was exposed. The defence was carefully discussed in an obiter of Lord Bramwell's in Lax v. Dar- lington ^ (1879). Here one of the plaintiffs' cows had met with an accident similar to the one in question some time before, and the plaintiffs chose to go to the spot with a knowledge of the danger. Lord Bramwell held that if the question had been before him he should " have had very great misgivings as to whether the plain- tiffs were entitled to recover, because if they knew the amount of the danger and chose to risk it, it is their own fault. They are volunteers." He continues: " If a person choose to go out with an obvious danger before him he must take the consequence." In Woodley v. Met. Dist. Ry. Co.^ (1877), it was held that if a man, not the servant of the Railway Company, but of a contractor, undertakes to do work in a tunnel where he knows trains are con- stantly passing, he cannot complain that the railway did not warn persons of approaching trains, and by Cockburn, C. J., that the defendant was not at fault and owed no duty to the plaintiff. " If a man for the sake of the employment takes it or continues in it with a knowledge of its risks, he must trust to himself to keep clear of injury." * It was not until after the passage of the Employers' Liability Act in England, in 1880, that the defence received its most careful consideration. As the courts held, or at least strongly intimated, that that Act took away from an employer the old defence of em- ployee's risk, i. (?., that the employee assumed the obvious inci- dental risks of his employment, the defendants in accident cases began to urge as a defence what was really a broader application of the same doctrine. In Thomas v. Quartermaine ^ (1887), it was held by Lord Bowen (i) that in finding plaintiff not guilty of con- 1 Britton v. Great Western Cotton Co., L. R. 7 Exch. 130 (1872), and see Clarke V. Holmes, Byles, J., 7 H. & N. 937 (1862). 2 Lax V. Corp. of Darlington, L. R. 5 Exch. 33 (1879). See note by Lord Bram- well in Appendix of Smith on Negligence, 2d ed., and Clayards v. Dethick, 12 Q. B. 439 (1848). 8 Woodley v. Met. Dist. Ry. Co., 2 Exch. Div. 384. 4 And see Griffiths v. London & St. Katharine Docks Co., L. R. 12 Q. B. D. 493 (1884); L. R. 13 Q B. D. €59. 5 Thomas v. Quartermaine, 17 Q. B. D. 414 (1886), and 18 Q. B. D. 645.