¹ (1888) 13 App. Cas. 1, 12.

² For a similar view eee Judge Joseph C. Hutcheson's widely quoted article, ‘The Judgment Intuitive—The Function of the “Hunch” in Judicial Decisions,’ in the April (1929) Cornell Law Quarterly.

³ [1933] 2 K. B. 297.

⁴ At p. 303.

⁵ For the four different and distinct classes of cases covered by this maxim see Salmond on Torts (7th ed.) p. 62. They include actual consent, implied consent, knowledge by the plaintiff negativing negligence on the part of the defendant, and contributory negligence. In Yarmouth v. France (1887) 19 Q. B. D. 647, 653 Lord Esher M.R. in speaking of this maxim said : ‘I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading; they are for the most part so large and general in their language that they always include something which really is not intended to be included in them. I do not doubt that, if we put this maxim into plain English, part of it is true.... But, does the maxim Volenti non fit iniuria go this length, that the mere fact of the workman knowing that a thing is dangerous, and yet using it, is conclusive to show that he voluntarily incurs the risk?’

⁶ Francis H. Bohlen, Studies in the Law of Torts (1926) at p. 515.

⁷ Op. cit. at pp. 447–450.

⁸ (1848) 12 Q. B.; 12 A. A & E. (N.B.) 439. For an extreme case see Miles v. Forest Rock (1918) 34 T. L. R. 500

⁹ (1876) 2 Ex. D. 248.

¹⁰ (1888) 20 Q. B. D. 359.

¹¹ This list might be largely extended. Thus in Thomas v. Quartcrmaine (1887) 18 Q. B. D. 686, 696 Bowen L.J. said: ‘The maxim, be it observed, is not “scienti non fit iniuria,” but “volenti.” It is plain that mere knowledge may not be a conclusive defence.... The injured person may have had a statutory right to protection, as where an Act of Parliament requires machinery to be fenced.... Or again the plaintiff may have a common right or individual right at law to find these particular premises free from danger, as in the case of lands on which a market or fair has been held: Winch v. Conservators of the Thames, L. R. 9 C. P. 378; Lax v. Corporation of Darlington, 5 Ex. D. 28.’ And see Lord Halsbury's remarks in Smith v. Baker [1891] A. C. 325, 33—7, which must raise in us a wistful regret for a bygone age : ‘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 iniuria." 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 anyone 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.’

¹² [1891] A. C. 346.

¹³ Op. cit. at p. 499.

¹⁴ (1871) 43 N. Y. 502.

¹⁵ In Corpus Iurig, vol. 45, pp. 966—8, § 620 (5) the rule is stated as follows : Danger incurred to save life or to prevent personal injury to others. Conduct which might otherwise be considered negligent may not be so considered where a person is injured in attempting to save othere from imminent danger of personal injury or death.... One is not guilty of contributory negligence in exposing himself to danger of injury in order to rescue another from imminent danger of personal injury or death, if, under the same or similar circumstances, an ordinarily prudent person might have so exposed himself, or, as often expressed, if the act of intervention was not performed under such circumstances as would make it rash or reckless in the judgment of ordinarily prudent persons.

¹⁶ (1887) 18 Q. B. D. 685, 698.

¹⁷ Lord Atkiu's statement in Donoghue v. Stevenson [1932] A. C. 562, 580 is apposite here : ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be— persons who are eo closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ It cannot be suggested that the courageous rescue of persons imperilled is less foreseeable in England than it is in America. Thus Sir Frederick Pollock (Law of Torts (13th ed.) p. 498), in approving the doctrine of the Eckert Case, says : ‘The law does not think BO meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able-bodied person should expose himself to the same danger to effect a rescue.’

¹⁸ 232 N. Y. 176; 133 N. E. 437. In this case the plaintiff and his cousin, who were passengers on the defendants’ electric railway, were standing on the platform of a car which gave a violent jerk when crossing a bridge. As the doors of the platform had negligently been left open, the cousin was thrown out and disappeared into the night. The car was stopped after crossing the bridge, and the plaintiff walked back along the trestle looking for his cousin's body. He missed his footing in the dark, fell from the bridge, and was injured. The Court of Appeals reversed the judgment of the lower Court directing judgment in favour of the defendants.

¹⁹ Highland v. Wilsonian Inv. Co. (1933) 17 P. (2nd) 631. ‘It may have been negligence for Mrs. Damon (the rescued), after having reached a place of safety, to return to the place of danger, but her negligence cannot be imputed to Mrs. Highland (the rescuer).’ In this case the plaintiff went into a room filled with ammonia fumes, owing to the defendant's negligence, to rescue a friend. The judgment contains an interesting analysis of proximate cause and contributory negligence.

²⁰ (1890) 81 Iowa 246; 47 N. W. 66.

²¹ (1922) 233 N. Y. 227

²² Bohlen, op. cit. at p. 441.

²³ (1887) 18 Q. B. D. 685, 697.

²⁴ 75 N. Y. S. 714.

²⁵ (1915) 153 N. Y. S. 447.

²⁶ (1917) 277 Ill. 255; 115 N. E. 126.

²⁷ At pp. 305, 306.

²⁸ At p. 305.

²⁹ At p. 306.

³⁰ Op. cit. at p. 502.

³¹ [1924] 1 K. B. 548.

³² At p. 38.

³³ (1886) 13 R. 1118; 23 S. L. B. 798.

³⁴ (1897) 24 R. 1001; 34 S. L. R. 533.

³⁵ Attention should be called to Professor C. K. Allen's interesting discussion of this question in his book, Legal Duties, at pp. 217—220. He cites Scaramanga v. Stomp (1880) 5 C. P. D. 295, 304 which laid down that deviation in the course of a voyage in order to save life is an excuse for apparent breach of the terms of a charterparty, and quotes Cockburn C.J.'s words : ‘The impulsive desire to save human life when in peril is one of the most beneficial instincts of humanity.... It is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential consideration as to injurious, consequences.’

As so many American cases have been cited in this article, the following quotation from Cockburn C. J. in the same case at p. 303 may be of interest: ‘I am glad to think that in doing so we have the advantage of the assistance afforded to us by the decisions of the American Courts and the opinions of American jurists, whom accident has caused to anticipate us on this question. And, although the decisions of the American Courts are of course not binding on us, yet the sound and enlightened views of American lawyers in the administration and development of the law—a law, except so far as altered by statutory enactment, derived from a common source with our own—entitle their decisions to the utmost respect and confidence on our part.’