Page:Harvard Law Review Volume 8.djvu/480

464 464 HARVARD LAW REVIEW. tributory negligence the county judge left untouched the defence of Volenti non Jit ; (2) that Volejtti -wdL^ not equ'waXenX. io scienti; there must not only be " knowledge and perception of the danger," but also " comprehension of the risk; " (3) that when it is knowledge under circumstances that leave no inference open but one, viz. that the risk has been voluntarily encountered, the defence is com- plete ; (4) that if the facts are undisputed it is a question of law which the court may decide, whether the risk has been voluntarily assumed; (5) that the defence Volenti vf3iS not taken away by the Employers' Liability Act. This case has been severely criticised by Esher, M. R., in Yarmouth v. France^ (1887), and by Lord Herschell and Lord Watson, in Smith v. Baker,^ on the ground that the fact of volenti cannot be held as a matter of law. But the case has never been overruled. In Membery v. G. W. Ry. Co.^ (1889, H. of L.), the plaintiff had for seven years worked at shunting of trucks, with knowledge of its danger if performed without assistance. Having asked for a boy to help him and being refused, he proceeded to shunt trucks alone. Held, defendant owed him no duty. Lord Herschell and Lord Halsbury agreed that the limits of the maxim must be left open for future decision. In Smith v. Baker (1891), the plaintiff was employed by railway contractors to drill holes near a crane worked by other men em- ployed by the contractors. The crane swung stones over the plain- tiff's head, and the plaintiff was aware of this, and of the danger. The only point really decided was that under the circumstances of the case the question whether he had undertaken the risk was one of fact and not one of law. This was put upon various grounds by the different judges, and no definite conclusion as to the scope* of the maxim was reached. The doctrine as established is composed of two parts ; first, that plaintiff shall have full knowledge of the nature and extent of the risk; second, that he shall freely and voluntarily incur it. The necessity of the first requisite is pointed out in Osborne v. London, & N. W. Ry. Co.s (1 888), where the plaintiff admitted that he knew 1 Yarmouth v. France, 19 Q. B. D. 649 (1887). 2 Smith V. Baker (1891), App. Cas. 325 (H. of L.). But see Church v. Appleby, 5 Times Law Rep. 88 (1888). ' Membreyf. Great Western Ry. Co., 14 App. Cas. 179 (1889). Cf. note in Law Quarterly Rev., v. 445. 6 Osborne v. London & N. W. Ry. Co., 21 Q. B. D. 224 {1888).
 * Cf. Article on Law Quarterly Rev., viii. 202.