Page:Harvard Law Review Volume 8.djvu/487

471 VOLENTI NON FIT INJURIA. 47 1 voluntarily assume the risk of being knocked down, by simply crossing a street in which he knows B, to be driving. It is sub- mitted that the application of the maxim or defence must be limited to those cases where the plaintiff and defendant enter into some distinct relation towards each other, such as employer and employee, occupier of land and person entering upon the land, contractor and contractee, railroad and passenger, seller of article and person purchasing or likely to purchase or use. But where plaintiff and defendant are simply the members of the same general community, occupying no specific relation to each other, then each is bound to use ordinary care towards the other, and the fact that the plaintiff knows that the defendant negligently does something which may bring him injury, is not conclusive that the plaintiff has assumed the risk of the danger from that negligence. In other words, it is only when a plaintiff has a choice whether he will enter into a specific relation to the defendant that the maxim will apply, if he chooses to enter or continues in that relation with knowledge of the danger. Where the relation between plaintiff and defend- ant is forced upon the plaintiff by the defendant's action, then if tiie plaintiff is hurt, even with knowledge of the danger, it does not lie in the defendant's mouth to say, " Yes, but you assumed the risk of my misconduct." The plaintiff may well say, " It was not my choice. The danger and risk of making the choice was forced upon me by your action." This, it is submitted, is the true explanation of cases like Thrus- sel V. Handyside.^ In that case, there being no connection be- tween the plaintiff and defendant except that the plaintiff happened to be working underneath the defendant's servants, the fact that the plaintiff knew his position to be dangerous did not absolve the defendant from using due care to prevent injury, because neither party of his own choice had entered into any relation with the other, except that they happened to be working near each other. One party cannot force himself into such a relation with the other so as to allow him to say to the other, who is thus obliged to accept the relation, " If you stay in this position with knowledge, I owe you no duty." Both have equal rights to be where they are, and between them the defence of Volenti noii fit injuria has no place. diaries Warren. 1 Thrussel v. Handyside, 20 Q. B. D. 359 (18S8). See note in Law Quarterly Re- view, IV. 239, and, for an example of this class of cases, cf. Mahoney v. Met. R. R., 104 Mass. 73 (1870), and cf. an erroneous failure to distinguish it from cases of direct assumption of risk, in Dewire v. Bailey, 131 Mass, 171 (1881).