Page:Harvard Law Review Volume 8.djvu/475

VOLENTI NON FIT INJURIA. 459 tory negligence, and is expressed by the formula: "If the plaintiff by the use of due care could have avoided the consequences of the defendant's negligence, the defendant is not liable." This is on the ground that the defendant's negligent act was not the real proximate cause, or, at least in cases of concurrent negligent acts, was not the sole cause. The second of the above defences (II, b) is that expressed by the maxim, "Volenti non fit injuria; " and, as said above, it is strictly not a defence, but a rule of law regarding a plaintiff's conduct which forms a bar to a suit brought by him based on another's alleged negligence. One who knows of a danger arising from the act or omission of another, and under- stands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure.^ In other words, towards a person fully cognizant and appreciative of the danger and risk to which the defendant's con- duct exposes him, the defendant has no duty of taking care, and therefore is not negligent. It is often said that the two defences above stated, the two principles, are identical ; and throughout the cases there is the greatest confusion between them.^ This con- fusion arises from the fact that in many States contributory neg- ligence is not treated as a defence, but rather as a bar to the plaintift's case, which he himself must remove before being able to maintain his action. Treating the defence in this way natu- rally breaks down the line between contributory negligence and Volenti non fit. Thus, in Massachusetts ^ and other States it is held that the plaintiff does not show the existence of a duty towards him until he first shows that he himself was in the exercise of due care. " In this view, the absence of contributory negligence becomes a part of the plaintiff's case, and should dL^^QSiV pritna facte before the defendant can be called on to answer the negligence imputed to him." It is submitted, however, that this is not the true view, and that after the plaintiff has given evidence of circum- stances and relations creating a duty, and a breach of that duty, this should establish a. prima facie case for him, to which the de- fendant should answer. Of course the burden will always be on « Fitzgerald v. Conn. River R. R., 155 Mass. 156 (1891). 2 Cf. Smith on Negligance, p. 159. ^ Cf. Cooley on Torts, p. 810 ; among the State courts following this rule are those ol Illinois, Michigan, New York, Maine, Vermont, New Jersey, Connecticut ; while the true view of contributory negligence is held by the courts of England, U. S. Supreme Court, Minnesota, Wiconsin, Missouri, Pennsylvania, California. VOL. VIII. — 8 61