Fitzgerald v. Connecticut River Paper Co.

Decision Date19 December 1891
Citation29 N.E. 464,155 Mass. 155
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

T.B. O'Donnell, for plaintiff.

T.M Brown, for defendant.



There was evidence proper for the consideration of the jury on the question whether the defendant corporation was negligent in permitting the steps on which the plaintiff was injured to be slippery and dangerous. It was its duty to provide on its premises a reasonably safe passage-way for the use of its employes in going to and from their work. There was evidence that 50 women working in the same room with the plaintiff used the steps daily; and it was a question of fact for the jury whether the plaintiff was in the exercise of due care in trying to go down the steps as she did at the time of the accident. The fact that she knew them to be icy, and more or less slippery and dangerous, does not require us to hold as a matter of law that she was negligent in trying to go down them, holding by the rail, especially if she had no other way of getting from the mill. The ground on which the ruling for the defendant was made was doubtless that the plaintiff, knowing the icy condition of the steps, assumed the risk of accident, and thereby precluded herself from recovering. It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader application, and which is expressed in the maxim, volenti non fit injuria. The reason on which it is founded is that, whatever may be the master's general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is. In the present case it does not appear that the steps were icy, or that there was any reason to suppose that the business involved a risk in regard to them, when the plaintiff entered the defendant's service. It cannot be held that when she made her contract she assumed the risk of such an injury as she afterwards received. We therefore come to the question whether, by her conduct since, she has assumed such a risk.

The doctrine, volenti non fit injuria, has not been very much discussed in the cases in this commonwealth, but it is well established in the law, and it has been repeatedly recognized by this court. Horton v. Ipswich, 12 Cush. 488; Wilson v. Charlestown, 8 Allen, 137; Huddleston v. Machine-Shop, 106 Mass. 282; Mellor v Manufacturing Co., 150 Mass. 362, 23 N.E. 100; Miner v. Railroad Co., 153 Mass. 398, 26 N.E. 994; Wood v. Locke, 147 Mass. 604, 18 N.E. 578; Lewis v. Railroad Co., 153 Mass. 73, 26 N.E. 431; Lovejoy v. Railroad, 125 Mass. 79; Yeaton v. Railroad, 135 Mass. 418; Scanlon v. Railroad Co., 147 Mass. 484, 18 N.E. 209. In England it has been much discussed, and the difficulties in the application of it have frequently been considered by the courts. The rule of law, briefly stated, is this: One who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure. It has often been assumed that the conduct of the plaintiff in such a case shows conclusively that he is not in the exercise of due care. Sometimes it is said that the defendant no longer owes him any duty; sometimes that the duty becomes one of imperfect obligation, and is not recognized in law. In one form or another the doctrine is given effect, as showing that, in a case to which it applies, there is either no negligence towards the plaintiff on the part of the defendant, or a want of due care on the part of the plaintiff. In Thomas v. Quartermaine, 18 Q.B.Div. 685, BOWEN, L.J., says: "The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognizant of the full extent of the danger and voluntarily run the risk." It would be unjust that one who freely and voluntarily assumes a known risk for which another is, in a general sense, culpably responsible, should hold that other responsible in damages for the consequences of his own exposure. In Yarmouth v. France, 19 Q.B.Div. 647, Lord ESHER, M.R., expresses the opinion that in such a case it is incorrect to say that the defendant no longer owes a duty to the plaintiff, but that it should rather be said that the duty is one of imperfect obligation, performance of which the law will not enforce. It may be said that the voluntary conduct of the plaintiff in exposing himself to a known and appreciated risk is the interposition of an act which, as between the parties, makes the defendant's act, in its aspect as negligent, no longer the proximate cause of the injury; or, at least, is such participation in the defendant's conduct as to preclude the plaintiff from recovering on the ground of the defendant's negligence. Certainly it would be inconsistent to hold that a defendant's act is negligent in reference to the danger of injuring the plaintiff, and that the plaintiff is not negligent in voluntarily exposing himself when he understands the danger. It is to be remembered that, in determining whether a defendant is negligent in a given case, his duty to the plaintiff at the time is to be considered, and not his general duty, or his duty to others. Therefore, when it appears that a plaintiff has knowingly and voluntarily assumed the risk of an accident, the jury should be instructed that he cannot recover, and should not be permitted to consider the conduct of the defendant by itself, and find that it was negligent, and then consider the plaintiff's conduct by itself, and find that it was reasonably careful. But this principle applies only when the plaintiff has voluntarily assumed the risk. As is said by BOWEN, L.J., in Thomas v. Quartermaine, supra, the maxim is not scienti non fit injuria, but volenti non fit injuria. The chief practical difficulty in applying it is in determining when the risk is assumed voluntarily. In the first place, one does not voluntarily assume a risk who merely knows that there is some danger, without appreciating the danger. On the other hand, he does not necessarily fail to appreciate the risk because he hopes and expects to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture. Sometimes the circumstances may show as a matter of law that the risk is understood and appreciated, and often they may present in that particular a question of fact for the jury.

What constraint, exigency, or excuse will deprive an act of its voluntary character when one intentionally exposes himself to a known risk is a question about which learned judges differ in opinion. It has been held by some that where a man is not physically constrained, where he can take his option to do a thing or not to do it, and does it, he must be held to do it voluntarily. See opinion of Lord BRAMWELL in Membery v Railway Co., L.R. 14 App.Cas. 179, and the dissenting opinion in Eckert v. Railroad Co., 43 N.Y. 502. But by the authorities generally, one who in an exigency reluctantly determines to take a risk is not held so strictly. There has been much difference among the English judges in regard to the question whether a servant who discovers a defect in machinery, not existing when he entered the service, which the master is bound to repair, and who works on, understanding the danger, rather than to lose his place by complaining of it or refusing to work until it is repaired, shall be held to have voluntarily assumed the risk. In Membery v. Railway Co., supra, Lord BRAMWELL expresses the opinion that the plaintiff cannot recover in such a case, while the lord chancellor and Lord HERSCHELL, without expressing an opinion, prefer to keep the question open for future consideration. In Thrussell v. Handyside, 20 Q.B.Div. 359, the court of queen's bench holds that a workman, by continuing to work under such circumstances, does not voluntarily assume the risk; and in Yarmouth v. France, 19 Q.B.Div. 647, a majority of the court of appeals are of the same opinion. In Sullivan v. Manufacturing Co., 113 Mass. 396, is...

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