the many trades and callings which medieval society regarded as services essential to the public well-being, was laid, as an inseparable incident, the duty not merely of refraining from injurious misconduct, from violence and fraud, but in addition the duty of the positive performance of careful service. In time many obligations of a somewhat similar sort were imposed upon certain classes of often occurring relation, thus eating into the original conception that a man had no cause of complaint if violence were not done to him and if he were not misled to his harm. But even to these new relation obligations the individualistic tendency of the law lent its color. When the obligations inherent in the various relations in which in civilized society the citizens are placed to one another came to be formulated, it was almost universally held that fair play was all that was required from one who was dealing without recompense with another. A gratuitous bailee owed to his bailor merely the duty of good faith to treat his bailor's goods as his own.1

When one lent to another a chattel, there was no duty save that of full disclosure of those defects which were not obvious to the borrower, but were known to the lender.2 Beyond that the borrower, if he chose to use another man's property, must protect himself. If inspection were required to insure the safe use of the thing borrowed, he, and not the lender, must make it. So too, where an owner of land permitted others to come upon it, or even where he invited them to come, but for a purpose not connected with his business use of his premises, he was held bound to disclose any known defects not obvious to his guest, but to do no And when he held open his land as a place to which his business patrons or clients might come for his, the owner's, purposes, even then, while he was held bound to know of defects which a reasonable inspection would discover, having discovered them, he fulfilled his obligation, if, not choosing to repair the defect, he gave to his customers or clients notice of its existence.5

more.

Throughout it is seen that the obligation to do more than afford

1 While this was later modified to require the bailee to take such care as a man should of his own, it still continued to express the idea of fair play, an average fair play, the good faith of the good citizen.

2 McCarthy v. Young, 6 H. & N. 329.

3 Southcote v. Stanly, 1 H. & N. 247.

4 Indermaur v. Dames, L. R. 1 C. P. 274, per Willes, J.

See Kelley, C. B., in Indermaur v. Dames, L. R. 2 C. P. 311.

others the opportunity to protect themselves is anomalous and exceptional.

Where, therefore, one voluntarily acts or enters into a relation contractual or otherwise with another, his knowledge of the risks inherent to his action or to the relation created, disproves the existence of any duty on the part of the creator of the danger to remove it, just as consent to suffer violence destroys the wrongfulness of its application. Neither knowledge of a danger voluntarily encountered nor consent is a defense which, while admitting the breach of a duty, justifies or excuses it, or which debars the plaintiff from recovering because himself a wrongdoer. Such is the view of Lord Justice Bowen in Thomas v. Quartermaine.1

Another view is often expressed, that it is a defense admitting the defendant's duty and its breach, but alleging that the plaintiff, having voluntarily encountered the danger, has impliedly consented or agreed to assume the risk.2 This attitude is most often assumed

"

1 18 Q. B. D. 685. Knowlton, J., in Fitzgerald v. Conn. R. Paper Co., 155 Mass. 155, while expressing concurrence with this view, shows a confused leaning to other conceptions. At p. 159 he says: 'The plaintiff's conduct in voluntarily exposing himself is an act which as between the parties makes the defendant's act no longer the proximate cause of the injury." Now legal proximity may be important in two ways: it may determine the defendant's duty to refrain from some particular act, or the extent of his liability for the consequences of an admitted wrong. See 40 Am. L. Reg., N. S., 79 and 148. If the defendant could not foresee that the plaintiff would probably expose himself to the danger, the defendant as to him is guilty of no wrong in creating it; if, though his act was wrongful, the plaintiff's exposure was not the natural consequence of it, the defendant is not liable for the ensuing injury. Now, while no one is legally bound to anticipate that others will officiously intermeddle or act wrongfully or recklessly, and so is not responsible for what they may do with opportunities or under temptations of the defendant's creation, where such other has the right or is bound by a legal or social duty to act as he does, or if he acts under the defendant's orders and for his benefit and just as he intended (the actor's sole freedom of volition being a legal right to refuse obedience and leave an employment in the course of which he is bound to obey), such action is more than natural and probable, it is actually induced and intended. Again, to say that an act is the proximate cause of an injury only as between the parties is to add a new element of confusion to a subject already difficult. If the act and the consequences are the same, the legal proximity of the one to the other, depending as it does on the foresight of the normal man or on the course of nature, cannot be affected by the personality of the plaintiff, who, it is true, may for other reasons be barred by it. It is a confusing misuse of the word to say that if a servant voluntarily driving a known skittish horse is injured together with a stranger in the ensuing runaway, the master's act in supplying the horse is a proximate cause of the stranger's injuries but not of the servant's. The same confusion of thought beclouds the subject of contributory negligence. See Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685. See an admirable treatise on Contributory Negligence by Charles H. Burr, Esq., of the Philadelphia Bar.

This is probably in reality the attitude of Lord Esher in Yarmouth v. France,

where the relation is one created by contract and the assumption of risk is considered as an implied term of the contract creating the relation. Where there is a statute creating a duty or relation so far of right that an obligation is imposed upon the defendant that the plaintiff may safely enter or remain in it, this is no doubt the aspect in which the maxim presents itself for application. In such case mere knowledge is not enough; a true unconstrained consent, with full knowledge not merely of the danger but of the right to protection as well, is required to waive liability for the breach of an existing duty.

The defense of contributory negligence is quite distinct.1 Negligence involves the idea of misconduct, a failure to measure up to the standard of that ideal personage the normal social man; assumption of risk does not. A risk while obvious may not be so imminently dangerous that a prudent man would necessarily avoid it, yet if it shall be freely encountered it will in general be held to be so far assumed that no recovery for consequent injury is possible. Voluntary conscious action may be negligent2 if the known

19 Q. B. D. 647, and would naturally follow from his position that, under the Employers' Liability Act of 1880, a duty was created to see that the plant was in safe condition. His language is: "I think there is a duty; though I agree that there is no actionable breach of that duty if the person injured, knowing and appreciating the danger, voluntarily encounters it." Now this indicates a duty owed to plaintiff the breach of which is excused by his consent thereto, not the idea of a duty in the air, a duty to others who may be ignorant, but not to the plaintiff who knows. Such a conception as the latter is utterly foreign to the remedial view point of the common law which disregards as quite immaterial any duty not owed to the plaintiff. Knowlton, J., in Fitzgerald v. Conn. R. Paper Co., 155 Mass. 155, ascribes to Lord Esher the view that there is a duty of imperfect obligation, performance of which the law will not enforce. It is fair to presume that Lord Esher did not intend to announce a doctrine so foreign to the whole spirit of the common law.

1 Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 485. This is particularly noticeable in those jurisdictions where special verdicts are rendered. A finding that the plaintiff has not been guilty of contributory negligence does not in any way preclude inquiry as to whether he, knowing the risk, has voluntarily encountered it and so cannot recover, though the two are often confused. This has been especially so until late years. In Pennsylvania this confusion is particularly marked; in all the cases, save perhaps the latest, the voluntary encountering of a known risk is spoken of as contributory negligence (see Fatterson v. R. R., 76 Pa. St. 385), thus unnecessarily branding as culpable the innocent victim who sacrifices himself to the necessities of his family. 2 In fact the two cases, Cruden v. Fentham, 2 Esp. 685 (1798) and Clay v. Wood, 5 Esp. 44 (1803), which preceded Butterfield v. Forrester, 11 East 60 (1809), were clearly cases where the plaintiffs voluntarily put themselves in positions of known danger to insist upon their right of way under the rules of the road. In fact, Lord Ellenborough in Butterfield v. Forrester says, a party is not to cast himself upon an obstruction made by the fault of another and avail himself of it, if he do not himself use ordinary

danger be great and imminent, but it is not negligent because voluntary. By contributory negligence a plaintiff is barred from recovery by his own misconduct, though the defendant has been guilty of an act admittedly wrongful as to him. Voluntary subjection to a known risk negatives the existence of any duty on the defendant's part by the breach of which he could be a wrongdoer.

It is essential that the two ideas should be kept quite distinct. For just as there may be voluntary subjection without negligence, there may be negligence though the subjection is not voluntary. In such case the danger may be so great and imminent that no prudent man may face it, even to assert his legal rights or perform his legal or social duties, no man of course being allowed to insist on his extreme rights in the face of certain injury. Or the plaintiff who may be entitled to run a known and appreciated risk may have failed to take those additional precautions which the known risks of his situation require. In either case, though for any reason the doctrine of voluntary (so-called) assumption of risk may not apply, the plaintiff will undoubtedly be barred by his contributory negligence.

There are, however, certain broad classes of cases in which the voluntary encountering of a perfectly well-known and appreciated danger has been held not to involve an assumption of the risk of the resultant injury. Two are stated by Bowen, L. J., as follows: 1 "The injured person may have a statutory right to protection, or again, the plaintiff may have a common right or individual right at law to find these particular premises (or appliances) free from danger, as in the case of lands on which a market or fair has been held."

caution to be in the right." The defense of contributory negligence as developed in the line of decision following that case is perhaps the highest expression of the individualism of the law. It requires every one not merely to assume the risks which to his knowledge attend his voluntary acts, but also to bear all those injuries which he may receive through his own misconduct, whether mere unthinking careless acts and omissions or conscious reckless exposure to unwarranted risk. He cannot throw the burden of his own personal neglect or rashness on the shoulders of another whose wrong has contributed to cause the injury. It seems quite unnecessary to resort to any other basis for this defense than the general individualistic tendency of the law. It is quite clear that it cannot rest on the application of the general doctrine of proximate cause, and to say that the plaintiff is bound as a joint wrongdoer is open to the objection taken by William Schofield, Esq., in 3 HARV. L. REV. 266, that the duty of selfpreservation is at best a moral and not a legal obligation, and that therefore the plaintiff is not legally a wrongdoer. See Saylor v. Parsons, 98 N. W. Rep. 500.

1 In Thomas v. Quartermaine, 18 Q. B. D. 485.

In addition to the illustration given by Bowen, L. J., of a market or fair,1 other common instances of persons having a common or individual right to find the premises free from danger may be grouped into the following classes:

Ist. Where a traveler uses a highway known to be somewhat dangerous, there being no other convenient safer way whereby he may reach his destination,2

2d. Where a tenant of offices or a flat, the approaches, stairs, halls, elevators, etc., of which remain under the control of the landlord, together with the duty of safe maintenance, knowing that this duty has not been performed and that the approaches have been allowed to become unsafe, remains in possession and does not immediately throw up his lease.3

This principle is equally so where one not the tenant but entitled in his right to use the premises continues to do so with like knowledge.1

3d. Where a shipper of goods or an intending passenger to whom the carrier is bound to furnish carriage and access and egress to and from the premises for the purpose, knowing of some slight imperfection in the appliances of carriage or in the approaches to the stations, persists in having his goods carried or who uses such defective means of access or egress.5

1 Lax v. Mayor of Darlington, 5 Ex. D. 28.

2 Mellor v. Bridgeport, 191 Pa. St. 564; Pomeroy v. Westfield, 154 Mass. 462; Norwood v. Smeuville, 159 Mass. 105; Harris v. Clinton, 64 Mich. 447; Musselman v. Borough, 202 Pa. St. 490.

8 Looney v. McClain, 129 Mass. 529; Dollard v. Roberts, 130 N Y. 269. See remarks of Mathew, L. J., discussing Cavilier v. Pope, [1905] 2 K. B. 757, p. 767. The case was decided against the wife of a tenant on the ground that the landlord not having control owed no duty to repair save by a contract to which she was not party. Ide v. Mitchell, 5 N. Y. App. Div. 208; Watkins v. Goodall, 138 Mass. 533; Guda v. Glucose Co., 154 N. Y. 474. In Payne v. Irwin, 144 Ill. 482, the tenant apparently had actual physical control, and in fact it was questionable whether the defect was not due to his own act.

Looney v. McClain, 129 Mass. 529; Marwedel v. Cook, 154 Mass. 235.

5 Osborne v. R. R., 21 Q. B. D. 220, especially the opinion of Grantham, J. See however contra, Goldstein v. R. R., 46 Wis. 404, a case which perhaps may be explained, as may be Miner v. R. R., 153 Mass. 398, on the ground that the plaintiff had other though less convenient access, or that by waiting the obstruction not in its nature permanent might have been removed. See also contra, dictum of Parke, B., in Priestly v. Fowler, 3 M. & W. 1. Where a passenger's carriage comes to a stop beyond the platform of the station which is his destination, he may alight at such point even if the attempt is attended with some risk if he " is satisfied that the train is going on and there is no other alternative but to get out." Cockburn, C. J. He need not sit still and be carried to the next station. Rose v. R. R., 2 Ex. D. 248; Robson v. R. R.,