4th. Where a landowner's access to his premises having been impeded or rendered dangerous by the defendant's wrongful act, he braves the danger to raise the siege.1

5th. Where by the defendant's wrongful misconduct the plaintiff is endangered in the performance of work not upon the defendant's premises and at a point where the plaintiff has a right to be irrespective of the defendant's consent.2

6th. Where one moves to a nuisance, or knowing of a wrongful act by an adjacent owner continues to use his land for the purpose for which it is naturally adapted, but which through the defendant's misconduct involves a risk of injury to his person or property.3

To these may be added the class of cases where the plaintiff has under an exigency caused by the defendant's wrongful misconduct acted consciously and voluntarily in a way which has subjected him to known danger, but where he has so acted in the protection of some legal right or in the performance of some legal or social duty, as where the plaintiff has risked his life to save that of another imperilled by the defendant's wrongdoing, in the performance of his duty, or in obedience to the dictates of his manhood, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no duty save that of humanity. Similarly, the

L. R. 10 Q. B. 271, 2 Q. B. D. 85, though Bramwell, B., in Siner v. R. R., L. R. 3 Exch. 150, thought he should go on to the next station and then sue the company. In Siner's case there was another alternative she might have called upon the guard to back the train.

1 Clayards v. Dethick, 12 Q. B. D. 439, where a livery stable man was held entitled to lead his horse over a trench wrongfully dug in front of his stable. Hickey v. Waltham, 159 Mass. 460. Holmes, J., decided on facts practically the same as in Clayards v. Dethick, that it was for the jury to say whether the plaintiff's conduct was a bar to her recovery (as being a voluntary assumption of the risk of a known danger) and said: "One fact to be considered was the strait that she had been placed in by defendant," "practically besieged and walled in," and also that another question for their consideration was whether she had fully appreciated the risks of the condition of the ditch and pile of dirt, which had been changed since she had last observed them.

2 Thornsville v. Handyside, 20 Q. B. D. 359.

Kellogg v. R. R., 26 Wis. 223; Donovan v. R. R., 98 Miss. 147. See however Anthony v. Krum, 115 Pa. St. 431.

4 88 N. Y. App. Div. 389, a policeman stopping a runaway, or an engineer staying upon his engine in the hope of averting a collision, as in Cotrill v. R. R., 47 Wis. 634.

5 Eckert v. R. R., 43 N. Y. 502.

6 As in Corbin v. City, 195 Pa. St. 461, the decision in Eckert v. R. R., while often

principle that one who to save his own property runs a risk which a prudent man would under the circumstances encounter is not to be taken to have assumed the risk thereof, was extended, in Lining v. R. R.,2 to cover a case where the plaintiff voluntarily exposed himself to a risk in trying to remove the horse of a friend. with whom he boarded, from a stable threatened by a prairie fire which had been started by the defendant's negligence.

In all such cases the plaintiff's person or property or the person or property of another must be threatened with injury as the result of some wrongful misconduct by the defendant.3

It would seem that in reality these cases do not form a definite distinct class from the second class of cases mentioned by Bowen, L. J.; in fact they are all referable to the same.general principle, that one who has the legal right or legal or social duty to act as he has done under the conditions created by the defendant's wrong does not act voluntarily, his action is caused by the coercion of the circumstances which the defendant's wrong has created. In all the plaintiff had a right to do what he did or be where he was injured which was in no way dependent upon the mere consent of the defendant, a consent which he was free to give or withhold.

In all there has been a wrong done by the defendant. An admitted duty has been violated; either a statutory requirement has been neglected, a legal right impeded and hampered, or some wrong done threatening the plaintiff's person or property, or the person or property of some other to whom he owes some duty, either legal or social. In none is it necessary to rely upon a duty to protect others from the consequences of their own conscious,

criticised, has been generally followed, and no contrary case has ever been decided. In England, where the precise question has never arisen, it has been spoken of with approval by Mr. Beven and by Sir Frederick Pollock.

1 Rexler v. Starin, 73 N. Y. 600. The owner of a boat went on it to prevent an imminent collision with the defendant's vessel. While the case is treated as one of contributory negligence, it was held that “he had the right to do so, almost a duty." See also Wasmer v. R. R., 80 N. Y. 212, where plaintiff ran in front of a moving train in an attempt to save his horse frightened by defendant's negligence.

2 91 Ia. 246. See however contra, Cook v. Johnson, 58 Mich. 437, where a wife who entered a stable in full blaze to save her husband's horse was held to have acted voluntarily and to have taken the risk upon herself.

Hiatt v. R. R., 17 Ind. 102. See an extraordinary case in which it was held that one taking a risk to save the life of the defendant who had by his own misconduct imperilled himself could not recover for the reason that the defendant was guilty of no actionable negligence as towards himself; no man owing to himself any legal duty of care. Saylor v. Parsons, 98 N. W. Rep. 500 (Iowa).

intended acts. In such cases, therefore, something more is required than the plaintiff's mere knowledge of danger; he must encounter it under such circumstances as show either that he was negligent in so doing, because the danger was so great and imminent that no prudent man would face it even to protect himself or others, or to assert his rights either at common law or of statutory protection; or else he must have encountered it under such circumstances as to indicate that he voluntarily, willingly, and affirmatively assumed the risk, that he recognized the danger, knew his right to be protected from it, but still chose to encounter it, not because of the pressure or coercion put upon him by the defendant's wrongdoing, but for some private reason of his own.

Once find the existence of a duty1 to avoid the creation of a danger and the question of the coercion of the plaintiff's will forcing him to encounter it becomes all important. The very term "voluntary assumption of risk" involves freedom of volition. The very individualism of the common law, which requires that each man shall bear the consequences of his own voluntary conduct, of necessity requires that it shall not impose an intolerable subjection to fortuitous advantages of superior physical, social, and economic position; that such advantages shall not be abused to obtain the mere form of consent while the substance of real volition is absent. There can be no real volition where there is no choice between at least two alternatives, neither of which involves the abandonment of a legal right or the relinquishment of the performance of a duty. While the common law makes no pretence of being a social reformer, and does not profess to reduce all persons to an absolutely equal position by eliminating all natural advantages, but rather, recognizing society as it is, considers social inequalities as the natural inevitable tactical advantages of those lucky enough to possess them, it does prohibit their misuse, while permitting their use within fair limits.

However, from time to time, certain classes of persons were recognized, either by the common law or by Acts of Parliament,2

1 As Cockburn, C. J., says in Clark v. Holmes, 7 H. & N. 907, "It is unimportant whether a duty exists by virtue of a statute or at common law." If the duty exists, it can only be waived by an unconstrained voluntary consent (express or necessarily implied from the circumstances) to take all the risks. The difficulty is in the absence of a statute in discovering any duty at common law, save that of fair disclosure of latent dangers. See Bramwell, B., Britton v. R. R., L. R. 7 Exch. 130, 138.

2 Sometimes by the judicial interpretation of such acts.

as persons whose position rendered it impossible for them to contract upon anything approaching a fair footing of equality. Now, this might be either because of their lack of ability to appreciate the dangers inherent in the relation created or the consequences of their voluntary actions or contracts, as in the case of infants or persons of imperfect understanding, or because of their economic necessities which compelled them, whether or no, to face perils or assume burdens which they fully appreciated; so courts of equity have relieved expectant heirs from unconscionable bargains and so the courts of the United States have done what the Railway and Canal Act of 1834 has, as judicially interpreted, done in England, and have relieved shippers and passengers from an expressed consent to waive the carrier's liability for his or his servant's negligences, imposed as a condition to affording carriage to them. Now, while the reason often given in the American cases is that it is against public policy to allow validity to such consent because it removes the incentive of care necessary for the protection of the lives and property carried, it will be noticed that this public policy does not extend to other voluntary relations where care is required to protect the life and property of one of the parties. As much danger and more is threatened the employee as the passenger; and yet from the mere fact of entering the service the former is held to assume all the risk while the latter is not bound by his consent even when expressly given. Care for human. life alone will therefore not account for the peculiar protection afforded passengers and shippers. From what then does it proceed? Evidently from the fact that as a class they are at the mercy of their carrier. Carriage of one's person and goods is, under modern conditions, a necessity. The carriers are usually railroads having a practical monopoly, and so able to dictate as a condition of carriage such terms as they please unless the courts interfere to restrain them from abusing their power. Then, too, the common carrier owes the duty of carriage. The relation is not, therefore, one in any true sense voluntary, the pure creature of the will of the parties; one has a right to enter into it, the other is bound to do so. So in construing the Act of 1834, the House of Lords held that the courts had the power to pronounce upon the reasonableness of all stipulation as to the terms of carriage:2

1 Quinby v. Ry., 150 Mass. 365.

2 Williams, J., in Peek v. R. R., 18 C. B. 805, affirmed in the House of Lords, 10 H. L. Cas. 473.

"Whereas the monopoly created by railways compels the public to employ them in the conveyance of their goods, the legislature have thought fit to impose the further security that the courts shall see that the conditions be just and reasonable"; and as Crompton, J., said, "The real question [in determining whether the conditions are reasonable] is whether the individual and the public are sufficiently protected from being unjustly dealt with by persons having the monopoly." "The mischief [which the act was intended to prevent] was in compelling people to enter into contracts [of exemption as condition of carriage] whether they willed it or not." Where the carriage is not as common carrier, 'but purely gratuitous, or the result of some private arrangement for peculiar privileges, there seems therefore no good reason why the carrier may not make what stipulations he please as to the condition on which he shall carry the passenger or goods.2

1 In Beal v. R. R., 3 H. & C. 587, quoted with approval by Blackburn, J., in Brown v. R. R., 8 App. Cas. 711.

2 In Lockwood v. R. R., 17 Wall. (U. S.) 57, the Supreme Court of the United States base their decision that a railway cannot free itself either by general notice or special contract from liability to its passengers or shippers for injuries caused by its negligence, upon the unequal footing upon which customer and carrier stand. In B. & O. R. R. v. Voigt, 176 U. S. 498, it was held that the railway was not acting as a common carrier in transporting the cars of an express company under a special contract, and that a clause therein exempting the railway from liability was valid. The plaintiff, an express messenger, who had in his contract with his employer expressly exempted all carrying railways from liability, had no right to demand such transportation, the railway no duty to grant it; it was a matter of purely private arrangement, and the railway could annex what conditions it pleased to the special service afforded. So in Northern Pacific R. R. v. Adams, 192 U. S. 440, it was held that in affording free transportation the railway was not performing a duty as common carrier, but granting a privilege; the passenger was not exercising a right, but enjoying a gratuitous benefit. "He was not in the power of the company and obliged to accept its terms. They stood on a perfectly even footing. If he had desired to hold it to its common law obligations to him as a passenger, he could have paid his fare and compelled the company to receive and carry him. He freely and voluntarily chose to accept the privilege offered, and having accepted the privilege he cannot repudiate the conditions." Brewer, J. The English law is the same. McCawley v. Furness, L. R. 8 Q. B. 57; and the preponderance of decisions of the American state courts follows the federal cases, though there are conflicting decisions in some jurisdictions. See cases cited in R. R. v. Voigt, and R. R. v. Adams, supra. Where free passage is given as an incident to the paid transportation of freight, American courts have as a rule held that the carriage is not gratuitous and that a clause of exemption from liability is void. Lockwood v. R. R., supra; Henderson v. R. R., 51 Pa. St. 315; see, however, McCawley v. Furness, supra, contra. In Blank v. R. R., 182 Ill. 332, it was held that since a railroad was not acting as common carrier in transporting a Pullman car, a contract by a porter of the latter exempting the carrying road was therefore not against public policy. He was being carried by virtue of a merely private arrangement, as to which both parties had full latitude of contract.