Page:Harvard Law Review Volume 8.djvu/481

465 VOLENTI NON FIT INJURIA. 465 that the icy steps down which he went were dangerous, and that he went down carefully, holding the handrail. The jury found specifically no contributory negligence. Wills, J., held that the defence Volenti was not proved, as " the plaintiff may well have misapprehended the extent of the difficulty and danger which he would encounter in descending the steps; for instance, he might easily be deceived as to the condition of the snow." This requisite of the defence, as the judge pointed out, " goes far to make it hard for a defendant to succeed, ... for it is probable that juries would often find for the plaintiffs on the ground that they had not full knowledge of the nature and extent of the risks." The chief discussion has come upon the second part of the maxim, /. e. what is the meaning of the word " voluntarily "? When does a man voluntarily incur a danger? In Thrussel v. Handyside ^ (1888), where plaintiff was a carpenter, and defendant's workmen on roof above him dropped bolts, of which the plaintiff had com- plained before his injury, it was held that knowledge of the danger was not proof of his wilfully incurring it, and that as he was law- fully engaged on work and in danger of dismissal if he left it, the defendants were bound to use due care. It should be noticed that in this case there was no relation of any kind between plaintiff and defendant except that of location.^ It was suggested by Lindley, L. J., in Yarmouth v. France (1887), that the fact that a plaintiff protests against a danger, but goes on as before, is not conclusive of his assumption of it. " Fear of dismissal rather than voluntary action might properly be in- ferred." The opposing view is put forward by Lord Bramvvell,'* who says, " Are we to say. Volenti fit injuriay provided the plaintiff grumbles?" "Where a man can it his option do a thing or not, and he does it, the maxim applies ; " and this is the view held in the Massachusetts courts.* The law as to this point is then as yet unfixed, although there were intimations by Lord Herschell and other judges, in Smith v. Baker, that where a risk has been enhanced by breach of duty of the employer, a mere continuance in the service with knowledge would not debar an employee's recovery. But these opinions 1 Thrussel v. Handyside, 2 Q. B. D. 359 (1888). Cf. esp. note in Law Quarterly Rev., iv. 239. 2 See discussion of this case at end of this article. ' Membery v. G. W. Ry.
 * Leary v. B. & A. R. R., 139 Mass., p. 587.