Smith v Charles Baker & Sons [1891] UKHL 2

UKHL

Smith v Charles Baker & Sons

[1891] UKHL 2 · 1891-07-21

My Lords,

this was an action originally tried in the county court, and it is very important to bear in mind that only a limited appeal is allowed by law in actions so tried. There is no power to review the decision of fact arrived at in the county court by any other tribunal than the county court itself. A matter of law can be made the subject of appeal, but then only when the point has been raised at the trial before the learned judge. That question was decided in Rhodes v. Liverpool Commercial Investment Company(1) . In Seymour v. Coulson

(2) the principle was affirmed that the point of law must be taken; and finally in Clarkson v. Musgrave

(3) , where all the cases were reviewed, it was established (and I think has been accepted ever since) that the raising of the point of law at the trial is a condition precedent to any appeal from the decision of the county court.

My Lords,

I think there are good reasons for the enactment which has so limited an appeal, and in truth even where written pleadings render such precautions as the statute has enforced in the county court less necessary, the same precaution has been constantly enforced where applications for a new trial have been made in the Superior Courts. It is obvious that it would be unjust to one of the parties if the other could lie by and afterwards, having failed on the contention that he in fact set up, be permitted to rely on some other point not suggested at the trial, but which if it had been suggested might have been answered by evidence: see McDougall v. Knight (4) .

Now, the first question therefore to consider here is, what

question was in fact raised before the county court judge in this case, and consequently what question is open to your Lordships to consider on this appeal. The action was an action in which the plaintiff sued his employers for injuries sustained while in the course of working in their employment. He was employed in working at a drill while two other fellow-workmen were engaged in striking with a hammer at the drill, which he was employed to hold in the proper position. The nature of the employment was one which involved his attention being fixed upon the drill that it might be held in the proper position when receiving alternate strokes from the hammers wielded by his fellow-workmen. The place where he was employed was in a cutting, and in his immediate proximity another set of workmen were engaged in working in the cutting and taking stones out of it. For the purpose of this operation a steam crane was used, and occasionally, though not invariably, the stones lifted by the crane were swung over the place where the plaintiff was employed, and on the occasion which gave rise to the action a stone was swung over the plaintiff, and from some cause not explained and not attempted to be explained, the stone slipped from the crane, fell upon the plaintiff, and did him serious injury.

My Lords,

the first point attempted to be argued at your Lordships' Bar was that there was no evidence to go to the jury of any negligence. Now, it is manifest upon the notes of the learned county court judge that no such point was taken at the trial, and it is therefore perfectly intelligible why no evidence is referred to with respect either to the crane, the manner of slinging the stone, or the mode in which the stone was fastened. Each of these things would have been material to consider if any such question had in fact been raised. I will not myself suggest, or even conjecture, what was the cause of the stone falling, or what precautions ought properly to have been taken against such a contingency. What is, or is not, negligence under such circumstances may depend upon a variety of considerations. If, for instance, the only result of not properly fastening a stone may be that it will fall back again, and so necessitate a repeating of the operation, there may be no negligence in not taking great care in so fastening the stone as to render such an accident improbable, if not impossible. It may be simply a question of whether the extra pains taken in fastening the stone may not be an unnecessary waste of time and care, and those engaged in the operation may well be justified in risking the possibility of the stone falling. But if the stone is to be lifted under such circumstances, or, when lifted, swung over a workman beneath it, totally different considerations arise. And I think the unexplained and unaccounted for fact, that the stone was being lifted over a workman, and that it fell and did him damage, would be evidence for a jury to consider of negligence in the person responsible for the operation. But whether that was so or not, the question does not here arise.

The objection raised, and the only objection raised, to the plaintiff's right to recover was that he had voluntarily under-taken the risk. That is the question, and the only question, which any of the Courts, except the county court itself, had jurisdiction to deal with. Now, the facts upon which that question depends are given by the plaintiff himself in his evidence. Speaking of the operation of slinging the stones over the heads of the workmen, he said himself that it was not safe, and that whenever he had sufficient warning, or saw it, he got out of the way. The ganger told the workmen employed to get out of the way of the stones which were being slung. The plaintiff said he had been long enough at the work to know that it was dangerous, and another fellow-workman in his hearing complained that it was a dangerous practice.

My Lords,

giving full effect to these admissions, upon which the whole case for the defendants depends, it appears to me that the utmost that they prove is that in the course of the work it did occasionally happen that stones were slung in this fashion over workmen's heads, that the plaintiff knew this, and believed it to be dangerous, and whenever he could he got out of the way. The question of law that seems to be in debate is whether upon these facts, and on an occasion when the very form of his employment prevented him looking out for himself, he consented to undergo this particular risk, and so disentitled himself to recover when a stone was negligently slung over his head or negligently permitted to fall on him and do him injury.

My Lords,

I am of opinion that the application of the maxim "Volenti non fit injuria" is not warranted by these facts. I do not think the plaintiff did consent at all. His attention was fixed upon a drill, and while, therefore, he was unable to take precautions himself, a stone was negligently slung over his head without due precautions against its being permitted to fall. My Lords, I emphasize the word "negligently" here, because, with all respect, some of the judgments below appear to me to alternate between the question whether the plaintiff consented to the risk, and the question of whether there was any evidence of negligence to go to the jury, without definitely relying on either proposition.

Now, I say that here evidence of negligence must by the form of procedure below be admitted to have been given, and the sole question to be dealt with is that with which I am now dealing. For my own part, I think that a person who relies on the maxim must shew a consent to the particular thing done. Of course, I do not mean to deny that a consent to the particular thing may be inferred from the course of conduct, as well as proved by express consent; but if I were to apply my proposition to the particular facts of this case, I do not believe that the plaintiff ever did or would have consented to the particular act done under the particular circumstances. He would have said, "I cannot look out for myself at present. You are employing me in a form of employment in which I have not the ordinary means of looking out for myself; I must attend to my drill. If you will not give me warning when the stone is going to be slung, at all events let me look out for myself, and do not place me under a crane which is lifting heavy stones over my head when you keep my attention fixed upon an operation which prevents me looking out for myself."

It appears to me that the proposition upon which the defendants must rely must be a far wider one than is involved in the maxim, "Volenti non fit injuria." I think they must go to the extent of saying that wherever a person knows there is a risk of injury to himself, he debars himself from any right of complaint if an injury should happen to him in doing anything which involves that risk. For this purpose, and in order to test this proposition, we have nothing to do with the relation of employer and employed. The maxim in its application in the law is not so limited; but where it applies, it applies equally to a stranger as to any one else; and if applicable to the extent that is now insisted on, no person ever ought to have been awarded damages for being run over in London streets; for no one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over.

It is, of course, impossible to maintain a proposition so wide as is involved in the example I have just given; and in both Thomas v. Quartermaine(1) and in Yarmouth v. France

(2) , it has been taken for granted that mere knowledge of the risk does not necessarily involve consent to the risk. Bowen L.J. carefully points out in the earlier case ( Thomas v. Quartermaine (1) ) that the maxim is not "Scienti non fit injuria," but "Volenti non fit injuria." And Lindley L.J., in quoting Bowen L.J.'s distinction with approval, adds

(3) :

"The question in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff."

And again, Lindley L.J. says:

"If in any case it can be shewn as a fact that a workman agreed to incur a particular danger, or voluntarily exposed himself to it, and was thereby injured, he cannot hold his master liable. But in the cases mentioned in the Act, a workman who never in fact engaged to incur a particular danger, but who finds himself exposed to it and complains of it, cannot in my opinion be held, as a matter of law, to have impliedly agreed to incur that danger, or to have voluntarily incurred it, because he does not refuse to face it."

Again, Lindley L.J. says: "If nothing more is proved than that the workman saw danger, reported it, but, on being told to go on, went on as before in order to avoid dismissal, a jury may, in my opinion, properly find that he had not agreed to take the risk

and had not acted voluntarily in the sense of having taken the risk upon himself."

I am of opinion myself, that in order to defeat a plaintiff's right by the application of the maxim relied on, who would otherwise be entitled to recover, the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself. It is manifest that if the proposition which I have just enunciated be applied to this case, the maxim could here have no application. So far from consenting, the plaintiff did not even know of the particular operation that was being performed over his head until the injury happened to him, and consent, therefore, was out of the question.

As I have intimated before, I do not deny that a particular consent may be inferred from a general course of conduct. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to consent to the thing which he himself is doing. And examples might be indefinitely multiplied where the essential cause of the risk is the act of the complaining plaintiff himself, and where, therefore, the application of the maxim, "Volenti non fit injuria," is completely justified.

I have hitherto treated the question apart from the specific findings by the jury. But I am not disposed to think that those findings were not justified upon the evidence presented. They found that the machinery for lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied, taken as a whole . I think the jury meant - and if they did so mean, I am of opinion that they were right - that, looking to the risk incurred by the men working below and to the possibility of the crane when worked (as in fact it was worked) letting stones fall, the machinery was not reasonably fit for the purpose for which it was applied, that is to say, not reasonably fit for securing that stones should not fall from it when slung over men's heads. And further, that if with such machinery the stones were being slung over men's heads, special warning ought to have been supplied to the men imperilled by such an operation, and that the employers were guilty of negligence in not remedying such a mode of working such machinery under such conditions of work.

I think the cases cited at your Lordships' Bar of Sword v. Cameron(1) , and the Bartonshill Coal Company v. McGuire

(2) ,established conclusively the point for which they were cited, that a negligent system or a negligent mode of using perfectly sound machinery may make the employer liable quite apart from any of the provisions of the Employers' Liability Act. In Sword v. Cameron (1) it could hardly be doubted that the quarryman who was injured by the explosion of the blast in the quarry was perfectly aware of the risk; but nevertheless he was held entitled to recover notwithstanding that knowledge.

It seems to me that in the present case the right of the plaintiff to recover is far more clear than in Sword v. Cameron (1) .The interval given to the quarryman to seek shelter was the usual and ordinary one. But suppose in that case the employer had employed the quarryman to do something which by the very form of the employment prevented his hearing the signal which gave him warning to retreat? In this case, as I have pointed out, there was no warning and no signal, but the employer or his representative employed the plaintiff under such circumstances as disabled him from using his eyes for protecting himself against the risk.

It seems to me, therefore, that this is a case in which the plaintiff is entitled to recover, and I therefore move your Lordships that the judgment of the Court of Appeal be reversed, and the judgment of the county court judge restored.

LORD BRAMWELL :-

My Lords,

with the leave of my noble and learned friend, Lord Watson, I address your Lordships now.

If this case came before me in the first instance, without any entanglement of statement of claim, finding of a jury, question of objections taken, and former decisions, I should hold it to be the plainest possible, and that the plaintiff had no claim in law or morality. I say this, not from any prejudice against the Employers' Liability Act. I am not certain it would not be a

good thing to give a person injured as the plaintiff was a right to compensation, perhaps from the State, even where there was no blame in the master; even where there was blame in the servant. Men would not wilfully injure themselves, and then compensation would be a part of the cost of the work. But we have to deal with the law as it is.

Now, what are the facts of this case? The plaintiff was employed by the defendants. The defendants were engaged in making a cutting for a railway, and of course had to remove what they excavated, and were doing so by putting the stones in a crate or in a sling, and raising them by a crane to the bank. The crane was turned so that the stones and sling passed over parts of the cutting, and therefore, over persons who might be standing or working on those parts. A stone so slung, and so being lifted, fell, or the parts of it fell, on the plaintiff, and most grievously hurt him. The plaintiff well knew of the possibility of such an accident. Those who were at work with him moved out of the way and escaped. The plaintiff did not, not knowing, as he says, of that particular movement of the crane. Now, how are the defendants to blame? There is no evidence that the crane was not the ordinary crane used for such purposes. No one says it was not. There is no evidence that lifting the stones as they were lifted - that is, by slinging them and jibbing the crane - was not the ordinary and reasonable way of working. No one says it was not. There is no evidence that the particular stone was improperly slung. No one says it was. I have no objection to "res ipsa loquitur." I believe I was one of the first, if not the first, to use it in some cases about fifteen years ago; but it does not apply here. At least, I cannot use it. I know that bales and barrels do not move and fall of their own accord. I do not know that stones slung carefully will not come apart and fall. My notion is that they will. I think I have often lifted up a piece of coal and found that the part I had hold of remained in the tongs and the rest broke away. I should think there might be some cleavage, I think it is called, which would prevent the parts holding together. This may be ignorance on my part. But if it is, it should have been removed by evidence, and there is none. Lord Coleridge and

Lindley L.J. are in the same state of ignorance, if it is one. Further, this is a claim which can only be maintained by virtue of the Employers' Liability Act. If there was negligence or unskilfulness in the slinging of the stone or working of the crane, it was not by any one in authority within that Act. Lastly, the plaintiff knew of the danger. Not of this particular stone, but generally that such stones might fall; yet he remained while it was passing over his head, not knowing, as he says, of this particular stone, but knowing that that kind of work was going on, and not looking out. His fellow-workmen looked out, did know, and got out of the way. There was no one to warn the plaintiff. No one says that it was the practice that there should be, and the plaintiff knew there was no one. This is the case pure and simple.

Now, let us see what is the case that comes before us. The particulars of claim say that "a stone or stones slipped from the crane chain and struck the plaintiff, by reason of the negligence of the defendants, they having failed to afford means of warning the plaintiff of the danger of continuing his work during the said craning operation, or of preventing the said stone or stones striking against him." The meaning of this is not certain. I think it is a complaint of want of "means of warning," whereby the plaintiff could prevent the stone striking against him. But it may be that it means a negligence in the slinging. So be it. If it is, there is no evidence of it. Then there is a claim that the accident was caused by the negligence of the foreman, whom the plaintiff was bound to and did obey. Of this there is no evidence.

Now, as to the evidence. I think it to the credit of the plaintiff that it was truthful, as it seems to me, substantially. He describes the operation, and he says that one of his fellow-workmen told the then ganger that it "was not safe to allow them to jib the stones over our heads"; that whenever he and his fellow-workmen saw them they got out of the way. He says he had been long enough at the work to know it was dangerous; that he heard another fellow-workman say to the ganger that it was dangerous; that he, the plaintiff, thought so, and told the crane worker so; that if they had stood looking at the craning they would have been sent to the office, that is, discharged. One of the plaintiff's witnesses, West, says it was dangerous, and he so told the ganger; that he got out of the way when the stones were being jibbed; that he knew they had to look out for themselves, for there was no one to warn them. The ganger, called for the defendants, says he told them to get out of the way; evidently meaning step aside, not leave their work.

The following questions were left to the jury. 1. Was the machinery for lifting the stone, taken as a whole, reasonably fit for the purpose to which it was applied? I am sorry to say that the jury answered, "No." 2. Was the omission to supply means of warning a defect in the ways, works, machinery, and plant? The jury say, "Yes." So that a man standing on the edge, as West says, would be part of the "plant"! 3. If so, the jury say the defendants were guilty of negligence in not remedying that defect. Well, "if so," it is true that they were negligent or wilful, if they knew of it, as I suppose they did. 4. Was the plaintiff guilty of contributory negligence? The jury say, "No." Well, I incline to think so. It was not negligence on his part; he did it wilfully. Except, indeed, that he was negligent in not doing what his mates did, i.e., step on one side when the stone was coming, and not looking out for it. 5. Did the plaintiff voluntarily undertake a risky employment with knowledge of its risks? The jury say, "No." I wonder what they meant. Indeed, the question is wonderful. The answer, to make it favourable to the plaintiff, is necessarily negative, a negative pregnant of one affirmative and another negative - twins. It might mean that the plaintiff did not voluntarily undertake the employment, or that it was not risky, or that he had not a knowledge of its risks. In any and every sense it is untrue, and, I think, not to the credit of the jury who gave it. On this the defendants' advocate applied for judgment, the plaintiff having admitted that he knew of the risk, and voluntarily incurred it. Judgment, however, was given for the plaintiff.

There was an appeal to the Queen's Bench Division, that the case ought not to have been allowed to go the jury; because the plaintiff, having admitted he knew of the risk which caused the injury, voluntarily incurred it. The Court considered themselves bound or fettered by some decision of the Court of Appeal, which that Court had better solve, and dismissed the appeal, but very clearly indicated that their own opinion was the other way. Wills J. said, "If I were an authority, I should have said that the evidence is all one way on the point of the man voluntarily accepting the risk, and I cannot draw the distinction between the man accepting the risk in the first instance, and his continuing in the employment under circumstances which brought the risk to his mind." Wills J. shews his dissent from the case of Yarmouth v. France (1) .

From this judgment there was an appeal on the same ground to the Court of Appeal, who reversed the judgment. Lord Coleridge says:

"This case is clearly within the decisions that have been pronounced in the Court below, and in this Court, in which it has been held, and I think most properly held, that a person who is engaged to perform a dangerous operation takes the risk of the operation of the work that he is called on to perform. As to that, there never was any doubt before the Employers' Liability Act, nor since."

I think that is a very neat and forcible way of putting it. He gives judgment for the defendants also on another ground, viz., that there was no evidence of negligence in the defendants causing the accident. There certainly was none; but it is said this was not open to the defendants. Lindley L.J. gives judgment the same way; his judgment is of extra importance, because it shews that Yarmouth v. France (1) , relied on for the plaintiff, is not, in the opinion of Lindley L.J. who was party to it, against the defendants. His Lordship says:

"If people will enter into dangerous employment, they do so without making other people liable for injuries they sustain."

I cite also his Lordship's opinion to justify my own, that "the jury were led away by sympathy, for they found matters that were not in the least warranted by the evidence. I think there was no evidence of negligence at all." Lopes L.J. says the same.

The case is now before your Lordships, and there cannot be a doubt how it ought to be decided, unless, by some miscarriage

of jury or judge or counsel, the defendants are to be made liable where they are absolutely free from legal blame.

In the course of the argument I said that the maxim "Volenti non fit injuria" did not apply to a case of negligence; that a person never was volens that he should be injured by negligence - at least, unless he specially agreed to it; I think so still. The maxim applies where, knowing the danger or risk, the man is volens to undertake the work. And I think the maxim does apply here; for the complaint in the statement of claim (the only thing proved) was, that there was no one to give notice when the stone was passing over where the plaintiff was at work. If this was wrong, the plaintiff knew of it and voluntarily undertook the risk. The case is different to a street accident, where a man is injured by the act of one between whom and him there is no relation. It is not dangerous apart from negligent driving. There is indeed a likeness. I admit that personal negligence in the master would make him liable; so also the use of dangerous plant not known to the servant.

If this is a maxim, is it any the worse? What are maxims but the expression of that which good sense has made a rule? It is a rule of good sense that if a man voluntarily undertakes a risk for a reward which is adequate to induce him, he shall not, if he suffers from the risk, have a compensation for which he did not stipulate. He can, if he chooses, say, "I will undertake the risk for so much, and if hurt, you must give me so much more, or an equivalent for the hurt." But drop the maxim. Treat it as a question of bargain. The plaintiff here thought the pay worth the risk, and did not bargain for a compensation if hurt: in effect, he undertook the work, with its risks, for his wages and no more. He says so. Suppose he had said, "If I am to run this risk, you must give me 6 s. a day and not 5 s. ," and the master agreed, would he in reason have a claim if he got hurt? Clearly not. What difference is there if the master says, "No; I will only give the 5 s. "? None. I am ashamed to argue it. I refer to the judgments of Bowen and Fry L.JJ. in Thomas v. Quartermaine(1) . It is not necessary to discuss Yarmouth v. France

(2) , for Lindley L.J., who was party to that judgment, is

also a party to that now appealed from, and thinks that whatever that decided, it decided nothing inconsistent with the judgment now under consideration. I respectfully express my dissent from that judgment in Yarmouth v. France (1) , and my concurrence with the observations of Wills J. on it. The fourth question ought not to have been left to the jury. The plaintiff could not make a case without shewing his agreement with the defendants to do work involving this risk. If he had said he did not know of this practice of slinging the stones and passing them over the heads of other workmen, it would have been false, but a question for the jury. If left to the jury, technically the judge ought to have directed them on the confession of the plaintiff to find for the defendants; a verdict the other way would have been perverse. I have always understood that when either party confesses to that which entitles the other side to a verdict, the judge may so direct it as he ought to have done here. Would it not be absurd to say, I ask you to say whether so and so is the case? The plaintiff admits it is.

There is a confusion in the case. "Volenti non fit injuria," say the defendants. The plaintiff answers, "But you were negligent." The defendants reply, "No, we were not." The plaintiff rejoins, "You did not take that objection at the trial." I do not agree. But supposing it was so, what has that got to do with the question? The plaintiff advances this proposition, "You cannot rely on 'Volenti non fit injuria,' because that does not apply to a case of negligence. A man may be volens to encounter the natural dangers of a business, but not those superadded by negligence." I agree. But the plaintiff's proposition involves that he must make out negligence to take the case out of the rule. Assume that the defendants at the trial only took the objection, "Volenti non fit injuria," that meant, "You were willing to run the ordinary risks; if you say there was anything extraordinary, shew it." There certainly was none, for the reasons I have given. Why are we to say that the danger was enhanced when there is positively no evidence of it? What was the danger the plaintiff was willing to run? This: having stones slung in a particular way jibbed over his head, with the risk of

their falling from bad slinging or other cause, and nobody to warn him when the jibbing caused the stone to come over him. How did the defendants enhance this? Did they cause the stone to be slung dangerously? As to no warning, the plaintiff knew he would have none. The plaintiff must have known that, if not inevitable or probable, the accident was possible. It is argued that there was a breach of duty in the defendants. What? What duty? Did the defendants ever undertake with the plaintiff that they would conduct their works otherwise than as they did that day? There is no such thing as abstract duty. Is there any evidence that the works were not being conducted as they were when the plaintiff entered the defendants' service? It is not necessary to consider whether this action would lie if the work was more dangerous after the employment had been entered into, and the workman knew it. It was indeed once held that if an obstruction was put before a cabman's stable he might run into it, and, if damaged, recover. I think the right course for the workman would be to say, "I entered your employment with a certain amount of risk, or with no risk, and you under-took to employ me. You have made it dangerous; that is a breach of your engagement, and I sue you." But it is immaterial in this case, for the work was unchanged in character, and was the same when he entered the service as when he was hurt. Besides, in these services every week there is a new engagement, and, therefore, his last week's work was under a contract made by the plaintiff, with full knowledge of the risk. If we suppose the contract was from week to week, till determined by notice, surely he is volens if he does not give the notice.

It is said that to hold the plaintiff is not to recover is to hold that a master may carry on his work in a dangerous way and damage his servant. I do so hold, if the servant is foolish enough to agree to it. This sounds very cruel. But do not people go to see dangerous sports? Acrobats daily incur fearful dangers, lion-tamers and the like. Let us hold to the law. If we want to be charitable, gratify ourselves out of our own pockets.

As to the authorities. It is a little amusing that Lindley L.J. should be cited to shew that his very clear judgment in this case was wrong. As to the opinion of Lord Cranworth, I hold it in the highest respect, but it has no bearing on this case. He said the system was wrong. That system was indeed known to the workman, but not its danger.

But there is another question. I think it clear that there was no evidence of wrong, negligent or wilful, in the defendants. It is called negligence, but there was no negligence; what was done was done wilfully and intentionally. I am surprised it should be said as against the defendants, that there was no explanation or suggestion as to what was the cause of the disaster. There was not. But who was to give it? Not the defendants; the plaintiff was to make out his case. It may be that it is in the power of an employer conducting operations such as these to prevent such injuries as this. But who is to prove it? I say, then, there was no evidence of wrong, negligence, or wilfulness in the defendants. It is said that this is not open to them; that the objection was not taken at the trial. I think it clearly was. The defendants applied for a non-suit at the end of the plaintiff's case. Why? Because there was no evidence for the jury. When it was said the thing was intrinsically dangerous, the defendants used the maxim, "Volenti non fit injuria." If this question was not open to the defendants, why was not that objection taken in the Queen's Bench Division and Court of Appeal? A new trial might have been granted. The case is wholly different from Clarkson v. Musgrave (1) , where the objection in the Appeal Court was of a wholly different character from that in the county court, and does not, as it were, arise out of it as here. Here the defendants say, "There is no evidence of wrong in us." Answer:

"Your very work is dangerous."

Reply:

"But you knew it, and undertook it with full knowledge of the extent of the danger."

Whether taken or not it should be open to the defendants. Error is caput lupinum. Up to the last moment, if there is irremediable error, it may be objected to. That was here. On this ground also the defendants should succeed. Something ought to be done, a new trial granted, if necessary, to prevent the defendants being made liable to pay damages which, in the opinion of many judges, there was no ground for claiming against them, and which never would have

been claimed but in the hope of an unjust verdict from a jury.

Fortified by the opinion of those judges, I should think this a plain case for the defendants, but that I know your Lordships think otherwise. I am of opinion that the judgment should be affirmed.

LORD WATSON :-

My Lords,

this action was brought in the county court of Yorkshire by the appellant, for recovery of damages from the respondent firm, who are railway contractors, in respect of personal injuries sustained by him in their service. The jury, under direction of the judge, returned six specific findings. Three affirmed facts implying fault on the part of the respondents, one negatived contributory negligence, and another assumption of risk by the appellant, whilst the sixth assessed damages at £100. Judgment was delayed in order to give either party an opportunity of moving to have it entered in their favour. At the hearing the respondents confined their challenge of the verdict to the finding relating to risk. They moved for a nonsuit, "on the ground that the case ought not to have been allowed to go to the jury, the plaintiff having admitted that he knew of the risk and voluntarily incurred it."

The county court judge refused the motion, and entered judgment for the plaintiff for £100. The defendants appealed to a Divisional Court, consisting of Huddleston B. and Wills J.; who, in consequence of doubts as to the effect of certain recent cases, without expressing any final opinion, took the course of dismissing the appeal, with leave to the defendants to carry the case to the Court of Appeal, in order to obtain an authoritative exposition of the law involved in the maxim, "Volenti non fit injuria."

The case then came before an Appeal Court, composed of Lord Coleridge C.J. with Lindley and Lopes L.JJ., who recalled the decree obtained by the plaintiff in the county court, and directed judgment to be entered for the defendants. In delivering judgment Lord Coleridge dealt with the point which had been raised in the county court, and expressed his opinion that the judge erred in refusing to hold that the plaintiff undertook to perform a dangerous operation, and took upon himself the risk attending that operation. His Lordship then proceeded to consider the findings with respect to fault, and came to the conclusion that there was no evidence of negligence to go to the jury. Lindley L.J. rested his decision upon the second of these grounds, being of opinion that, according to the evidence, the plaintiff's injuries were the result of "pure accident without any element of negligence in it." In expressing the same view, Lopes L.J. remarked that the "vexed question with regards to the application of the principle of 'Volenti non fit injuria,' which arose in Thomas v. Quartermaine(1) and Yarmouth v. France

(2) , happily does not arise in this case."

The provisions of sect. 120, and following clauses of the County Courts Act 1888 (51 & 52 Vict. c. 43) do not appear to have been brought under the notice of the learned judges of the Appeal Court. These enactments appear to me to exclude all right of appeal upon questions of law which were not raised and submitted at the trial to the county court judge. The reasoning of Lord Field and Cave J., in Clarkson v. Musgrave (3) , although the decision turned upon the terms of the County Courts Act 1875, is in pari materia, and is, in my opinion, equally applicable to the statute of 1888.

In this case, the contention that there was no evidence of negligence to go to the jury was never mooted in the Court of first instance. It was not raised in the notice of appeal to the Divisional Court, and it was neither included in the leave given by that Court, nor referred to in the notice of motion before the Appeal Court. I am, in these circumstances, of opinion that the findings of the jury bearing upon the question of the defendants' fault must be taken as conclusive. The Legislature has purposely taken away from them the right to raise, and from your Lordships the right to entertain, any question of law or fact affecting the validity of these findings. The only finding with which, in my opinion, this House has jurisdiction to deal, is embodied in the question put by the presiding judge: "Did

the plaintiff voluntarily undertake a risky employment with a knowledge of its risks?" and the answer of the jury, which was, "No."

Whilst I am of opinion that it is not within the jurisdiction of any Court of review to set aside jury findings which were not impeached in the county court, it does appear to me to be legitimate and necessary in the present case to examine the findings which relate to negligence, in the light of the facts disclosed in evidence, not with the view of disturbing them, but for the purpose of appreciating their effect and ascertaining the character of the risk which the plaintiff is alleged to have voluntarily undertaken. The facts in evidence do not raise any question of credibility. The real controversy, both in the county court and at your Lordships' Bar, has been directed to the inferences which ought to be derived from them.

The plaintiff was employed by the defendants from December 1887 until the 13th of April 1888 in a rock cutting upon the Halifax High Level Railway. A line of rails upon which there was a travelling steam crane and tackle ran along the edge of the cutting; and the quarried stone was lifted and deposited in trucks by means of the crane. The larger stones were secured by winding the chain round them and hitching the end hook into one of its links; the smaller ones were packed in skips or crates. The plaintiff was engaged in loading the crane until the beginning of February, and after that date in assisting to drill holes for blasting. On the 13th of April he was turning a drill-rod, which two of his fellow-workmen struck alternately with their hammers, when a large stone, which was in course of being raised by the crane, fell upon him, and inflicted the injuries complained of His fellow-workmen saw the falling stone just in time to get out of its way; but the plaintiff, who was stooping at his work, had not time to make his escape.

No evidence was led on either side as to the character of the stone which fell, to the condition of the chain, or to the actual mode in which the stone was secured. It appears to have been the practice during the whole period of the plaintiff's employment to permit the crane load, whenever it was found convenient, to be swung directly above the workmen engaged in drilling.

At its first start the load swung clear of them, but after it had attained some elevation, the arm of the crane was "jibbed," or deflected to one side or the other, as suited the convenience of those who were loading the trucks. Until the crane was jibbed, the plaintiff, and others employed in drilling, had no means of knowing whether its load would or would not pass over their heads.

Neither of the parties disputed at the trial that the practice in question involved some degree of peril to the workmen employed in drilling. The plaintiff in his evidence stated that he had been long enough at that kind of work to know that the practice was dangerous. He also said, "I had been at the same class of work in the same cutting. They were jibbing over our heads every day." "Sometimes we could see the stones being craned up, and when we saw them we got out of the way." Hanson, a witness for the defendants, who was their foreman in charge at the time of the accident, said that "the men ought to have stopped work while the stone was being jibbed round. That would be the safe way ." He admitted that no notice was given them; and he also said, "If the men left their work every time the crane jibbed, it would take two and a half hours to do one hour's work." There is evidence to the effect that one at least of his fellow-workmen had previously complained to the foreman of the danger of slinging stones over their heads. There is no evidence to shew that the practice was necessary to the conduct of the defendants' operations, and could not have been discontinued without interruption of their work.

The questions touching negligence which were left to the jury, and the answers returned by them, were:

"(1.) Was the machinery for lifting the stone from the cutting, taken as a whole, reasonably fit for the purpose for which it was applied? (Answer) No. (2.) Was the omission to supply special means of warning when the stones were being jibbed a defect in the ways, works, machinery, and plant? (Answer) Yes. (3.) If so, were the employers (or some person engaged by them to look after the condition of the works, & c.) guilty of negligence in not remedying that defect? (Answer) Yes."

The frame of these questions may be open to criticism; but on a fair construction of them, together with the answers given, what the jury meant to affirm seems to me to be tolerably plain. They were not, in my opinion, meant to represent three different phases of negligence, but to affirm three different propositions constituting one form of negligence, namely, the neglect of the defendants to take proper precautions for protecting their employés from the possible consequences of a faulty system of working the crane. It is plain that the first question had no reference to any specific flaw in the crane or its tackle, because it expressly relates to the machinery "taken as a whole" - words which, as I understand them, were intended to cover the arrangement and use of the crane and its tackle considered in their relation to other departments of work carried on in the cutting. Accordingly, the first answer of the jury appears to me to affirm that the system of using the crane was not reasonably fit for its purpose, inasmuch as it exposed workmen in another department to unnecessary danger. The second affirms that the use of the crane, without warning to the workmen over whose heads its load was jibbed, constituted a defect in the works; and the third ,that the defendants, or their foremen, were negligent in respect of their failure to remedy that defect. I so construe the findings of the jury, because I feel bound, in the absence of any exception to the charge of the presiding judge, to assume that these questions, as explained by him to the jury, did not embrace any cause of action not arising on the pleadings, and that they did fairly raise the issues disclosed in the plaintiff's pleadings and evidence.

It must be kept in view that, owing to the shape in which the case was submitted to them, the jury were invited to consider these three questions apart from the question of risk, or, in other words, upon the footing that the risk of a stone falling from the crane had not been undertaken by the plaintiff. The incidence of the risk was the subject-matter of a separate question. In that aspect of the findings with regard to negligence, I am not prepared to concur in the observations made upon them by the Court of Appeal. If the plaintiff did voluntarily undertake the risk from which he suffered, there could, as a matter of course, be no negligence imputable to the defendants. If, on the contrary, the principle of "Volenti non fit injuria" were eliminated from the case, there would, in my opinion, be reasonable and sufficient warrant in the evidence for the verdict returned by the jury.

It does not appear to me to admit of dispute that, at common law, a master who employs a servant in work of a dangerous character is bound to take all reasonable precautions for the workman's safety. The rule has been so often laid down in this House by Lord Cranworth, and other noble and learned Lords, that it is needless to quote authorities in support of it. But, as I understand the law, it was also held by this House, long before the passing of the Employers' Liability Act (43 & 44 Vict. c. 42) that a master is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself. In Sword v. Cameron(1) the First Division of the Court of Session found a master liable in damages to a quarryman in his employment who was injured by the firing of a blast before he had time to reach a place of shelter, although it was proved that the shot was fired in accordance with the usual and inveterate practice of the quarry. That case was cited in Bartonshill Coal Company v. Reid

(2) in support of the proposition that the doctrine of collaborateur was unknown to the law of Scotland; but Lord Cranworth pointed out

(3) that the decision did not turn upon the negligence of the fellow-workman who fired the shot, and expressly stated that it was justifiable, on the ground that "the injury was evidently the result of a defective system not adequately protecting the workmen at the time of the explosions." The Lord Chancellor (Chelmsford) expressed the same view in Bartonshill Coal Company v. McGuire

(4) . The judgment of Lord Wensleydale in Weems v. Mathieson

(5) clearly shews that the noble and learned Lord was also of opinion that a master is responsible in point of law not only for a defect on his part in providing good and sufficient apparatus, but also for his failure to see that the apparatus is properly used.

The main, although not the sole, object of the Act of 1880, was to place masters who do not upon the same footing of responsibility with those who do personally superintend their works and workmen, by making them answerable for the negligence of those persons to whom they intrust the duty of superintendence, as if it were their own. In effecting that object, the Legislature has found it expedient, in many instances, to enact what were acknowledged principles of the common law. Sect. 1 sub-s. 1 provides that the employer shall be liable in cases where a workman is injured by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer. I see no reason to doubt that an arrangement of machinery and tackle, which, although reasonably safe for those engaged in working it, is nevertheless dangerous to workmen employed in another department of the business, constitutes a defect in the condition of the works within the meaning of the sub-section. Sometimes (as in the present case) when the danger is not constantly present, but recurs at intervals, the defect may be cured by giving the workmen timely warning of its approach. The employer may in such cases protect himself, either by removing the source of danger, or by making provision for due notice being given. Should he adopt the latter course, he will still be exposed to liability if injury results from failure to give warning through the negligence of himself or of his superintendent.

The only question which we are called upon to decide, and I am inclined to think the only substantial question in the case, is this, whether, upon the evidence, the jury were warranted in finding as they did, that the plaintiff did not "voluntarily undertake a risky employment with a knowledge of its risks." Whether the plaintiff appreciated the full extent of the peril to which he was exposed or not, it is certain that he was aware of its existence, and apprehensive of its consequences to himself; so that the point to be determined practically resolves itself into the question whether he voluntarily undertook the risk. If, upon that point, there are considerations pro and contra, requiring to be weighed and balanced, the verdict of the jury cannot be lightly set aside. The defendants' case is that the evidence is all one way; that the plaintiff's continuing in their employment, after he had become aware and had complained of the danger, of itself affords proof absolute and conclusive of his having accepted the risk of a stone falling in the course of its transit from the quarry to the loading bank.

The maxim, "Volenti non fit injuria," originally borrowed from the civil law, has lost much of its literal significance. A free citizen of Rome who, in concert with another, permitted himself to be sold as a slave, in order that he might share in the price, suffered a serious injury; but he was in the strictest sense of the term volens. The same can hardly be said of a slater who is injured by a fall from the roof of a house; although he too may be volens in the sense of English law. In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case.

It is material to notice that the Employers' Liability Act, under which the present action was brought, by sect. 2, sub-sect. 3, provides that a workman shall have no right to compensation for injuries caused by reason of any defect or negligence which is specified in sect. 1, in any case where "he knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence." I think the object and effect of the enactment is to relieve the employer of liability for injuries occasioned by defects which were neither known to him nor to his delegates down to the time when the injury was done. At common law his ignorance would not have barred the workman's claim, as he was bound to see that his machinery and works were free from defect, and so far the provision operates in favour of the employer; but, as was forcibly pointed out by Lord Esher M.R. in Thomas v. Quartermaine (1) in cases where the employer and his deputies were personally ignorant of the defect, it is made a condition precedent of the workman's right to recover that he shall have given them information of it before he was injured. That does not lead me to the conclusion that the provisions of the Employers' Liability Act wholly exclude the application of the doctrine "Volenti non fit injuria" to claims falling within the scope of the Act; but it does, in my opinion, shew that the Legislature did not intend that the statutory remedy given to the workman should be taken away simply by reason of his continuing in the same employment after he became aware of the defect from which he ultimately suffered.

There are many kinds of work in which danger is necessarily inherent, where precautions such as would ensure safety to the workman are either impossible, or would only be attainable at an expense altogether incommensurate with the end to be accomplished. In all such cases the workman must rely upon his own nerve and skill; and, in the absence of express stipulation to the contrary, the risk is held to be with him and not with the employer.

On the other hand, there are cases in which the work is not intrinsically dangerous, but is rendered dangerous by some defect which it was the duty of the master to remedy. In cases of that

description the relations of the workman to the peril are so various that it is impossible to lay down any rule regarding the operation of the maxim which will apply to them all alike, and I shall refer to two instances only by way of illustration. The risk may arise from a defect in a machine which the servant has engaged to work of such a nature that his personal danger and consequent injury must be produced by his own act. If he clearly foresaw the likelihood of such a result and, notwithstanding, continued to work, I think that, according to the authorities, he ought to be regarded as volens. The case may be very different when there is no inherent peril in the work performed by the servant, and the risk to which he is exposed arises from a defect in the machinery used in another department over which he has no control. The present case belongs to that category. There was no intrinsic danger in the operation of drilling in which the plaintiff was engaged; the peril from which he suffered was not evoked by his act, but was brought into contact with him by workmen employed in a different operation.

I should be prepared to hold that, apart from the Act of 1880, the plaintiff's remedy was not necessarily taken away by the mere fact that, in the knowledge of the risk and after remonstrance, he continued to work. In the circumstances of this case the question whether he had accepted the risk is one of fact; there is no arbitrary rule of law which decides it. The complaints made to the foreman by his fellow-workman, coupled with the fact of their continuing to work, might be fairly construed as an intimation to the defendants that they must either discontinue the vicious practice of slinging stones over the heads of their workmen or take the consequences. It was a protest against the practice, which does not naturally or necessarily imply that they were willing to submit to it or to accept the risk of it. I am confirmed in that view by the decision in Sword v. Cameron (1) , which came very near in its circumstances to the present case. There the dangerous practice consisted in firing a shot at so short an interval after notice to the workmen that they had not time to reach a place of safety, and the pursuer had continued to work until he was injured, in

full knowledge of the practice and its attendant risks. The Court of Session held that the maxim, "Volenti non fit injuria," did not apply; and it appears to me that, in Bartonshill Coal Company v. Reid(1) , Lord Cranworth approved of the judgment. It is true that in the Bartonshill cases there was no question directly raised in regard to the maxim; but the noble and learned Lord examined the facts of Sword v. Cameron

(2) in detail, and expressed the opinion, not that the decision might be explained, but that it was justifiable in the circumstances of the case.

This case, however, is under the statute of 1880, and, as already indicated, I am of opinion that the mere fact of the plaintiff having continued in the employment of the defendants cannot defeat his statutory claim. I therefore concur with the majority of your Lordships in thinking that the order of the Court of Appeal must be reversed, and the judgment of the county court judge restored.

LORD HERSCHELL (after stating the facts and the course of the proceedings set forth above, continued as follows):-

My Lords,

the first argument addressed to your Lordships by the learned counsel for the appellant was that it was not competent for the respondents to raise the objection that there was no evidence of negligence, no such point having been made in the County Court. In support of this proposition he cited the case of Clarkson v. Musgrave (3) , which is a distinct authority to that effect. The learned counsel for the respondents did not impeach the authority of that decision, or invite your Lordships to overrule it. I see no reason to think the decision was erroneous. It would, in my opinion, be very mischievous if an appeal from a decision of a county court could be sustained on the ground that there was no evidence to go to the jury when that point had not been raised before the county court judge. In the present case it is perfectly clear that no such objection was ever taken. At the close of the evidence for the plaintiff

the only ground submitted for a non-suit was that the plaintiff had himself admitted that he knew of the risk, and voluntarily incurred it, and it was on this ground that the defendants applied to have judgment entered for them, notwithstanding the finding of the jury. Indeed, in the notice of motion in the Queen's Bench Division on appeal from the county court, the ground that there was no evidence of negligence is nowhere taken. I think, then, it was not competent for the Court of Appeal to inquire whether there was any evidence of negligence. For the reasons I have given, I do not think it is necessary to determine whether there was such evidence in the present case, but I am far from being satisfied that there was not. No satisfactory explanation was given of the cause which led to the fall of the stone and the consequent injury to the plaintiff. It is said that whilst in some cases the fall of a substance, such as a bale of cotton, which is being raised by a crane would, if unexplained, be evidence of negligence, the fall of a stone from a crane, as in the present instance, is not so, because stone is apt to disintegrate and thus to fall; but I am not prepared to admit that it is beyond the reasonable power of an employer conducting operations such as those in question to prevent the risk of injury to life or limb of those who are working at the locality over which the stones are being lifted. I should have thought it would have been possible to use such appliances as under ordinary circumstances to prevent the risk of the stones falling; but if it be not possible to do so, and the stones cannot pass over those engaged in other operations below without serious danger to them, it would certainly be within the employer's power to warn them when it is necessary to desist from work and get out of the way of the impending risk. It seems to me, then, that the employer in such a case is in this dilemma: either it was reasonably practicable for him to use appliances by which the accident would have been avoided, in which case he should have done so, or, if it was not, sufficient warning should have been given to those endangered to enable them to escape the danger. It is of course possible that the employer might have shewn that neither of these courses was reasonably practicable. But that is immaterial. All that I am concerned with at the present moment is whether the accident which happened afforded evidence of negligence.

It was of course open to the respondents to contend that, after the admission of the plaintiff as to his knowledge of the dangerous character of the work, the case ought to have been withdrawn from the jury, and judgment entered for them, and this was the point strenuously argued at your Lordships' Bar on their behalf. It was said that the maxim, "Volenti non fit injuria," applied, and effectually precluded the plaintiff from recovering. The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. The maxim has no special application to the case of employer and employed, though its application may well be invoked in such a case. The principle embodied in the maxim has sometimes, in relation to cases of employer and employed, been stated thus:- A person who is engaged to perform a dangerous operation takes upon himself the risks incident thereto. To the proposition thus stated there is no difficulty in giving an assent, provided that what is meant by engaging to perform a dangerous operation, and by the risks incident thereto, be properly defined. The neglect of such definition may lead to error. Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action. For example, one who has agreed to take part in an operation necessitating the production of fumes injurious to health, would have no cause of action in respect of bodily suffering or inconvenience resulting therefrom, though another person residing near to the seat of these operations might well maintain an action if he sustained such injuries from the same cause.

But the argument for the respondents went far beyond this. The learned counsel contended that, even though there had been negligence on the part of the defendants, yet the risk created by it was known to the plaintiff; and inasmuch as he continued in the defendants' employment, doing their work under conditions, the risk of which he appreciated, the maxim, "Volenti non fit injuria," applied, and he could not recover; that his proper course, if he wished to avoid the risk of his employers' negligence, was to refuse to perform the work under such conditions. Their argument necessarily went this length, for the facts on which it was grounded were simply these: that the plaintiff had admitted that he knew the work was dangerous. I am not quite sure that he was not referring in his answer to the character of the work generally, rather than to the special danger arising from jibbing the stones overhead; but in a subsequent answer he stated that he had heard a fellow-workman say to the ganger that it was dangerous to jib stones and skips over their heads, and that he thought so too.

It is obvious that the degree in which the work was dangerous depended entirely on the conditions under which it was carried on and the amount of care exercised. It would be practically unimportant or very great according to the character of the appliances used, the mode in which the stone was slung, and the presence or absence of warning at the critical time. In the present case it must be taken on the finding of the jury that the danger was at least enhanced and the catastrophe caused by the negligence of the defendants; and the question for your Lordships' consideration is whether, under such circumstances, the fact of the plaintiff having continued to perform the duties of his service precludes his recovery in respect of this breach of duty because the acts or defaults which constituted it were done "volenti."

There may be cases in which a workman would be precluded from recovering even though the risk which led to the disaster resulted from the employer's negligence. If, for example, the inevitable consequence of the employed discharging his duty would obviously be to occasion him personal injury, it may be that, if with this knowledge he continued to perform his work and thus sustained the foreseen injury, he could not maintain an action to recover damages in respect of it. Suppose, to take an illustration, that owing to a defect in the machinery at which he was employed the workman could not perform the required operation without the certain loss of a limb. It may be that if he, notwithstanding this, performed the operation, he could not recover damages in respect of such a loss; but that is not the sort of case with which we have to deal here. It was a mere question of risk which might never eventuate in disaster. The plaintiff evidently did not contemplate injury as inevitable, not even, I should judge, as probable. Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty? I cannot assent to the proposition that the maxim, "Volenti non fit injuria," applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong.

It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service, it is true to say that he is willing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as a wrong, and I know of no principle of law which compels the conclusion that the maxim, "Volenti non fit injuria," becomes applicable.

It was suggested in the course of the argument that the employed might, on account of special risk in his employment, receive higher wages, and that it would be unjust that in such a case he should seek to make the employer liable for the result of the accident. I think that this might be so. If the employed agreed, in consideration of special remuneration, or otherwise, to work under conditions in which the care which the employer ought to bestow, by providing proper machinery or otherwise, to secure the safety of the employed, was wanting, and to take the risk of their absence, he would no doubt be held to his contract, and this whether such contract were made at the inception of the service or during its continuance. But no such case is in question here. There is no evidence that any such contract was entered into at the time when the plaintiff was first engaged, and the fact that he continued work notwithstanding the employer's breach of duty affords no evidence of such special contract as that suggested.

It is to be observed that the jury found that the plaintiff did not voluntarily undertake a risky employment with knowledge of its risks, and the judgment of the county court, founded on the verdict of the jury, could only be disturbed if it were conclusively established upon the undisputed facts that the plaintiff did agree to undertake the risks arising from the alleged breach of duty. I must say, for my part, that in any case in which it was alleged that such a special contract as that suggested had been entered into I should require to have it clearly shewn that the employed had brought home to his mind the nature of the risk he was undertaking and that the accident to him arose from a danger both foreseen and appreciated.

I have so far dealt with the subject under consideration as matter of principle apart from authority; but it appears to me that the view which I have taken receives strong support from the approval with which Lord Cranworth refers to the case of Sword v. Cameron(1) in his judgment in the case of the Bartonshill Coal Company v. Reid

(2) .

In Sword v. Cameron (1) it was the pursuer's duty to work near a crane, and other servants were employed to blast the rock. The practice was to give a signal to the men by the word "fire." It was then the duty of the men employed at the crane to hasten away. The interval allowed before firing varied from one minute to two. The pursuer was struck when he had got fifty or sixty yards off. An interval of about two minutes elapsed between the order to fire and the explosion, and it was stated to have frequently

occurred that by the effects of the explosion stones flew over the heads of the retreating workmen. Lord Cranworth said:

"This case may be justified without resorting to any such doctrine as that a master is responsible for injuries to a workman in his employ occasioned by the negligence of a fellow-workman engaged in a common work. The injury was evidently the result of a defective system not adequately protecting the workmen at the time of the explosions. It is to be inferred from the facts stated, that the notices and signals given were those which had been sanctioned by the employer, and that the workmen had been directed to remain at their work near the crane till the order to fire had been given, and then that after the interval of a minute or two the explosion should take place. The accident occurred not from any neglect of the man who fired the shot, but because the system was one which did not enable the workmen at the crane to protect themselves by getting into a place of security."

This case appears to me to be analogous to the present, and the ground upon which Lord Cranworth bases the liability of the employer to be applicable to it. It will be noticed that in that case the defective system which created the risk, and from which the pursuer suffered, was known to him, and that he continued his work notwithstanding this knowledge; yet it never appears to have occurred, either to the Scotch Court or to Lord Cranworth, that this absolved the employer from liability.

In Yarmouth v. France(1) , the plaintiff was subjected to a risk owing to a defect in the condition of what was held to be plant within the meaning of sect. 1 of the Employers' Liability Act. He complained of this to the person who had the general management of the defendant's business, but was told nevertheless to go on with his work. He did so, and sustained the injury for which he brought his action. The county court judge gave judgment for the defendant on the ground that the plaintiff must be assumed to have assented to take upon himself the risk, on the authority of Thomas v. Quartermaine

(2) , to which case I will refer immediately. The Court of Appeal ordered a new trial. Lindley L.J. said: "The Act cannot, I think, be properly construed in such a way as to protect a master who knowingly

provides defective plant for his workmen, and who seeks to throw the risk of using it on them by putting them in the unpleasant position of having to leave their situations or submit to use what is known to be unfit for use." And further on he observes:

"If nothing more is proved than that the workman saw danger, reported it, but on being told to go on went on as before in order to avoid dismissal, a jury may, in my opinion, properly find that he had not agreed to take the risk, and had not acted voluntarily in the sense of taking the risk upon himself."

I think that the judgment in Yarmouth v. France (1) was perfectly right; but I should not lay the same stress as Lindley L.J. did upon the fact that the workman had remonstrated against the risk to which he was exposed, and on being told to continue his work did so to avoid dismissal. For the reasons which I have given, I think that where a servant has been subjected to risk owing to a breach of duty on the part of his employer, the mere fact that he continues his work, even though he knows of the risk and does not remonstrate, does not preclude his recovering in respect of the breach of duty, by reason of the doctrine, 'Volenti non fit injuria," which in my opinion has no application to such a case. It appears to me that sect. 2, sub-sect. 3, of the Employers' Liability Act, indicates that the Legislature regarded this as the law.

The defendants' counsel naturally placed his main reliance upon the case of Thomas v. Quartermaine (2) . The plaintiff there was employed in a room in the defendants' brewery, where a boiling and a cooling vat were placed. A passage which was in parts only three feet wide ran between these two vats, the rim of the cooling vat rising sixteen inches above the passage. The plaintiff went along this passage in order to get from under the boiling vat a board which was used as a lid, and as this lid stuck, the plaintiff gave it an extra pull, when it came away suddenly, and the plaintiff, falling back into the cooling vat, was scalded. The county court judge held that there was evidence of defect in the condition of the works in there being no sufficient fence to the cooling vat. He found that the condition of the vat was known to both the plaintiff and the defendant, and that the plaintiff

had not been guilty of contributory negligence, and he gave judgment for him. The case was carried to the Court of Appeal where the learned, judges, Bowen and Fry L.JJ. (the Master of the Rolls dissenting), affirmed a decision of the Divisional Court directing judgment to be entered for the defendant.

The judgments of the learned judges forming the majority in that case were chiefly occupied by a consideration of the provisions of the Employers' Liability Act. It appears to have been contended in that case that the effect of the statute was to preclude the employer from relying on the maxim, "Volenti non fit injuria," in cases where, but for the statute, such a defence would have been open to him. But it is to be observed that in the case there under consideration, the county court judge had found that the defendant was himself aware of the defective condition of his works, and if he had not taken reasonable care so to carry on his business as not to subject those employed by him to undue risk, he would, according to the law laid down by this House in Bartonshill Coal Company v. Reid (1) , be primâ facie liable to an action. The learned judges, however, came to the conclusion that the defendant was entitled to judgment, because the maxim, "Volenti non fit injuria," applied, the county court judge having found that the condition of the vat was known to the plaintiff as well as to the defendant. I find myself unable to concur in the view that this could properly be held under the circumstances as matter of law. The fact seems to have been lost sight of that the danger to the plaintiff did not arise from the circumstance that he had to pass from one part of the premises to the other, in proximity to the vats, even if this would have justified the conclusion arrived at. The accident arose from an operation being performed by him in the neighbourhood of the vats, namely, getting a board which served as a lid from under one of them. As far as appears, this was amongst the ordinary duties of his employment, and if it was assumed that there was a breach of duty on the part of the employer in not having the vats fenced, as it obviously was, since if there had been no breach of duty it would not have been necessary to inquire whether the maxim, "Volenti non fit injuria," afforded a defence, it seems to

me that it must have been a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform. If the effect of the judgment be that the mere fact that the plaintiff after he knew the condition of the premises continued to work and did not quit his employment, afforded his employer an answer to the action even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decision.

I think that the judgment of the Court below in the case now before your Lordships ought to be reversed, and judgment for the plaintiff restored.

LORD MORRIS :-

My Lords,

the circumstances of this case have been so fully stated by your Lordships, who have already spoken, that it is unnecessary for me to repeat them. I concur in the conclusion arrived at by the Court of Appeal, that the findings of the jury as to negligence were not warranted by the evidence, and that there was no evidence of negligence conducing to the plaintiff's injury; but I do not consider that it therefore follows that judgment should be entered for the respondents.

The action was not one in the superior Courts, and it must be governed by the statutes regulating appeals from the county courts. Now, in the present case no objection was made at the trial on the part of the respondents that there was no evidence upon which the jury could find there was negligence on their part; nay, more, in the notice of motion, by way of appeal, in the Queen's Bench Division, no objection was taken that there was no evidence of negligence. The question of law raised at the trial, both at the close of the plaintiff's case in asking for a non-suit, and at the close of the entire case in asking for judgment, was, that the plaintiff having admitted that he knew the risk and voluntarily incurred it, the defendants were entitled to succeed. No question of law was raised as to there being no evidence to go to the jury to establish the defendants' negligence.

The Court of Appeal decided the case upon a question of law not taken at the trial. I can find no reference in any of the judgments in the Court of Appeal as to their competency to entertain and decide upon a point not made at the trial, nor does the case of Clarkson v. Musgrave (1) appear to have been cited. It is an express decision, and one in which I entirely concur, that it is a condition precedent to the right of appeal that the question of law upon which it is desired to appeal should have been raised before the county court judge at the trial. If the point, that there was no evidence of negligence, had been made by the defendants at the trial, I am of opinion they would be now entitled to judgment; but, in my opinion, that point is not now open, and the case must be dealt with, assuming the findings of the jury as to the negligence of the defendants. The findings were:

"1st. Was the machinery for lifting the stone from the cutting, taken as a whole, reasonably fit for the purpose for which it was applied?"

The jury found, "No." "2nd. Was the omission to supply special means of warning, when the stones were being jibbed, a defect in the ways, works, machinery, and plant?" The finding was, "Yes." "3rd. If so, were the employers, or some person engaged by them to look after the condition of the works, guilty of negligence in not remedying that defect?" (Answer) "Yes."

Notwithstanding these findings, the respondents have argued that they are entitled to judgment, inasmuch as the appellant admitted he knew of the risk, and voluntarily incurred it. His evidence on that point was:

"I am a navvy, and am accustomed to this particular work. I have been at it long enough to know it is dangerous."

And again:

"I told the crane-driver that it was not safe to jib stones over our heads."

On the hypothesis that the respondents were guilty of negligence conducing to the accident, which is the result of the findings of the jury unchallenged at the trial, the respondents still rely on the application of the maxim, "Volenti non fit injuria," and the decision in the case of Thomas v. Quartermaine (2) ,as precluding the plaintiff from recovering. The facts. of that case are few and simple. A passage ran between a cooling and a boiling vat in the defendant's brewery. The plaintiff went along the passage to pull a board from under the boiliug vat, and in so doing he pulled too strongly, and the board coming

out suddenly he fell back into the cooling vat and was injured. The county court judge held that there was no sufficient fence to the cooling vat, and that the condition of the cooling vat was known to both plaintiff and defendant. This latter finding was a mere truism, for both plaintiff and defendant must have seen and known that the cooling vat was not fenced. I concur in the decision of the Court of Appeal, and in the judgments of Bowen and Fry L.JJ. in that case. In the first place, the danger from the narrowness of the passage and the unfenced state of the cooling vat, if it was a danger, was patent to the plaintiff, a workman employed there. Neither he nor any one else complained of danger. There was no evidence that the passage was dangerous in the ordinary use of it. The accident happened in an extraordinary use of the passage - viz., the fall of the plaintiff while pulling with undue force the board. He was not directed to get the board; he did it of himself. There was no evidence, in my opinion, of any negligence of the defendant; and, even if there was, it was patent and well known to the plaintiff, who voluntarily, and with the fullest knowledge of the full extent of the danger, incurred it. The principle as laid down by Bowen L.J. is clear and conclusive, viz.:

"Where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence."

Apply that principle to the facts of this case as found by the jury. The appellant did not know that the machinery was not reasonably fit for the purpose; a fellow-workman in his presence had complained of the danger of jibbing stones to Rings, who had acted as ganger, and the appellant had complained to the crane-driver, who laughed at him.

My Lords,

I have already said that I see no evidence to support the finding that the machinery was not reasonably fit for the purpose, nor of any negligence in its use; but the finding so stands. The appellant may have voluntarily entered on a risky business; but he did not voluntarily undertake it plus the risk from defective machinery. There must be an assent to undertake the risk with the full appreciation of its extent. In my opinion, the findings of the jury, in answer to questions 2 and 3, of negligence by the respondents in not supplying means of warning when the stones were being jibbed, do not avail the plaintiff. He undertook a dangerous work of drilling holes, while over his head (unless he moved away) stones were being hauled by a crane. That work he entered upon knowing it was dangerous to that extent. He worked for months, knowing there was no special warner to caution him, but running his chance of getting out of the way, when the crane would otherwise pass over his head. He was, in my opinion, both sciens and volens as to all the danger except that arising from unfit machinery. Of that danger he was not aware. I more than doubt it existed at all; but the right of appeal is a statutable one: the respondents have not brought themselves within the statute, in not objecting at the trial to the want of any evidence to support the first finding; while it stands, the maxim, "Volenti non fit injuria," appears inapplicable. How can the plaintiff be held to voluntarily incur a danger from unfit machinery, the unfitness of which he was admittedly not aware of? The case of Thomas v. Quartermaine (1) for the same reason is no authority for the respondents' contention.

In result, I am of opinion that the appellant is entitled to succeed on the course the case has taken, and with the limited right of review accorded to the Divisional Court, to the Court of Appeal, or to your Lordships' House.