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justice in a rule that would, in cases of this character, inflict upon a wife the consequences of her husband's negligence, solely and alone because of that relationship, than to hold her accountable at the bar of eternal justice for his sins because she was his wife."

MARRIAGE - ALIENATION OF HUSBAND'S
AFFECTIONS-ACTION BY WIFE.

INDIANA SUPREME COURT, DEC. 8, 1891.

HAYNES V. NowLIN.

Since the statutes have given to married women the right to sue alone for injuries to their persons and property, a married woman can maintain an action in her own name against one who wrongfully entices her husband from her, and thereby deprives her of his consortium and support. Holman & Holman and McMullen & Johnson, for appellant.

given way before the enlightened thought of better ages and less barbarous times. One who should now, either in England or America, attempt to secure an enforcement of the old rules which placed the wife in such abject subjection to the husband, and stripped

George M. Roberts, Charles W. Stapp, John K. right of action broke the line of consistency and Thompson and Givan & Givan, for appellee.

her, and not in the husband. Any other conclusion is indeed logically inconceivable.

her of so many rights which belong, in natural justice, to a rational human being, would find a stern denial. It is beyond controversy that without the aid of statutory enactments the harsh, unreasonable rules of the old common law have fallen before the spirit of enlightened reason and true progress. The doctrine that the wife could not maintain an action against one who deprived her of her husband violates the old maxim that "reason is the life of the law," for there can be no reason in a rule which gives the stronger a right of action for an injury and denies it to the weaker. If the strong may maintain an action, the greater the reason why the weak may do so. If the baron may recover from one who entices away the feme, surely the same reason that supports the rule giving the former a right of action must give a like right to the latter. The reason is the same, but the degree is not, for the reason intensifies in power when invoked by the injured wife. The decisions which denied the wronged wife a marred the symmetry of the law. We have spoken of the decisions under the common law, but we do not feel ELLIOTT, C. J. The question which this record pre- called upon to discuss them at length; that has been sents arises upon the ruling of the trial court sustainably done by the courts which have given the subject ing a demurrer to the appellant's complaint. The consideration. Bennett v. Bennett, 116 N. Y. 584; question which requires our cousideration and judg- | Lynch v. Knight, 9 H. L. Cas. 577; Breiman v. Paasch, ment is this: Can a married woman maintain an ac7 Abb. N. C. 249; Baker v. Baker, 16 id. 293; Jaynes v. tion against one who wrongfully entices her husband Jaynes, 39 Huu, 40; Warner v. Miller, 17 Abb. N. C. from her, and alienates his affections? It was the boast 221; Churchill v. Lewis, id. 226; Foot v. Card, 58 Coun. of the common law that "there is no right without a 1. The decisions to which we have referred, and the remedy," and in the main this boast is not an idle one, authorities they adduce, prove beyond debate that but was made good by the vindication of legal rights even at common law the right of action for a personal in almost all instances where the right was appropri- wrong was in the wife. We assume therefore that the ately presented for judicial consideration and deter-right of action for a wrong suffered by the wife was in miuation. Some of the courts however sacrificed the principle outlined in the maxim to the demands of faucied consistency, aud surrendered a clear and strong right to a barren technical rule, for they held that a wife could not maintain an action for the loss of the society, support and affections of her husband. The fiction that the baron and feme were one person so far swayed the judgments of some of the courts as to carry them from a sound fundamental principle, and cause them to declare a doctrine revolting to every rightthinking person's sense of justice, and contrary to the foundation principles of natural right. We say that some of the cases did this, for not all gave the doctrine. Our statute, years ago, gave the wife a right to trine we refer to support; but, on the contrary, denied it, by holding that the wife might have a right of action against the wrong-doer who took her husband from her. To those cases we shall presently refer. The principle outlined in the maxim quoted requires that even where the common law as it now exists prevails, it should be held that a wife may have an action against a wrong-doer who deprives her of the society, support and affections of her husband. If there is any such thing as legal truth and legal right, a wronged wife may have her action in such a case as this, for in all the long category of human rights there is no clearer right than that of the wife to her husband's support, society and affection. An invasion of that right is a flagrant wrong, and it would be a stinging and bitter reproach to the law if there were no remedy. The virtue of elasticity which has been so often ascribed to the common law (and generally very justly) is nowhere more clearly or beneficially manifested than it is in relation to the rights of married women. Long since the doctrine of feudal times, which gave so many, and such comprehensive, rights to the baron, and so few, and such narrow ones, to the feme, has

As the right of action for a personal injury was always in the wife, she is, of necessity, the real party in interest; and upon reason and principle she ought always to have been held to be the party entitled to prosecute the action for the invasion of that right. That it was not so held was owing to the power of the legal fiction that she and her husband were one, for from this fiction comes the stiff, unreasonable rule that in all actions she must join her husband. Equity however never gave full recognition to this technical doc

sue alone, and thus-adopting the chancery doctrine and abrogating that of the common law-broke down the only position upon which it could with the slightest plausibility be asserted that she could not sue one who wrongfully took her husband from her, since upon the ground that she could not sue alone was rested the doctrine denying her a right to sue one who enticed away her husband. It was never asserted by the better-considered cases nor by the abler textwriters that she did not herself possess the substantive right upon which the cause of action was founded. The reason that she could not maintain such an action was not that she was not the source of the substantive right, but that there was no remedy available to her for the vindication of the right. When the statute sup plied the remedy by breaking down the barrier which stood between her and a recovery, it clothed her with full right to enforce her just aud meritorious cause of action.

We know that in the case of Logan v. Logan, 77 Ind. 558, a different doctrine was declared, but that decision was by a divided court, and the question was not fully considered; not a single authority was there

adduced, nor is there any consistent line of reasoning. We should be strongly inclined to deny the soundness of that decision if it were necessary to do so, but it is not necessary that we should overrule it, for since the cause of action there declared invalid arose radical changes have been made by statute. The rights as well as the obligations of married women have been greatly enlarged. In many cases it has been affirmed of married women that under the present statute "ability is the rule and disability the exception." Rosa v. Prather, 103 Ind. 191; Arnold v. Engleman, id. 512-514; McLead v. Insurance Co., 107 id. 394; City of Indianapolis v. Patterson, 112 id. 344; Bennett v. Mattingly, 110 id. 197; Strong v. Makeever, 102 id. 578; Lane v. Schlemmer, 114 id. 296-301; Phelps v. Smith, 116 id. 887-402; Young v. McFadden, 125 id. 254; Miller v. Shields, 124 id. 166. It seems to us very clear, that in view of the fact that true principle requires that a married woman should have a remedy for the vindication of a violated right, and that her rights and obligations have been so greatly increased and enlarged by the enabling statutes, she may have redress against one who wrongfully takes her husband from her. Every radical, express change in the law carries with it corresponding and incidental changes. These incidental changes are inseparable from the essential express changes, and are wrought by the Legislature. No part of the law can be expressly changed without causing incidental changes. To hold otherwise would be to frustrate the legislative purpose and break the law into isolated parts and disjointed fragments. It must follow from this doctrine, that when the statutes gave a married woman the right to sue alone, and changed her status so as to invest her with the general property rights of a citizen and impose upon her almost the same obligations as those resting upon all citizens free from disability, they clothed her with the right to appeal to the courts to redress the wrong inflicted by one who tortiously wrested from her the support, society and affections of the husband. In adjudging, as we do, that this action can be maintained, we believe that we build on solid principle, and we know that we are sustained by able courts. The authorities already adduced give our conclusion support, and to them we add: Seaver v. Adams (N. H.), 19 Atl. Rep. 776; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13; Westlake v. Westlake, 34 Ohio St. 621; Postlewaite v. Postlewaite, 1 Ind. App. 473. See also Duffies v. Duffies (Wis.), 45 N. W. Rep. 522.

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The views of the text-writers are in harmony with our conclusion. Mr. Bigelow says: "To entice away or corrupt the mind and affections of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife." Big. Torts, 153. Judge Cooley says: We see no reason why such an action should not be supported where, by statute, the wife is allowed for her own benefit to sue for personal wrongs suffered by her." Cooley Torts, 228, note. Mr. Bishop clearly and strongly states the rule. He says: "Within the principles which constitute the law of seduction, one who wrongfully entices away a husband, whereby the wife is deprived of his society, and especially also of his protection and support, inflicts on her a wrong in its nature actionable. We have seen that by the common-law rules, which forbid the wife to sue for a tort except by joining the husband as co-plaintiff, she is practically without an available remedy.

But un

der the modern statutes, as they are shaped in many of our States, she can hold property at law, bring suits to secure it, and maintain actions for tort in her own name, without any interference from her husband; so that where a statute of this sort prevails, she has her action against the seducer of her husband, who has thus wrongfully deprived her of his society and care." 1 Bish. Mar. & Div. § 1358. Judgment reversed.

MICHIGAN SUPREME COURT, DEC. 21, 1891.

WARREN V. WARREN.

Under Howard's Statutes, section 6295, which provides that the real and personal estate of every female, however the same may be acquired, either before or after marriage, shall remain her property, and not be liable for the obligations of her husband, and may be contracted sold or devised by her the same as if she were unmarried; and section 6297, which provides that "actions may be brought by and against a married woman in relation to her sole property in the same manner as if she were unmarried," etc., a wife may maintain her action in trespass for the alienation of the affections of her husband.

Wm. N. Cook and Osborn & Mills, for appellant.

A. H. Chandler and Heckert & Chandler, for appellees.

MORSE, J. The plaintiff brings this suit, alleging that the defendants have wrongfully combined together and alienated the affections of her husband, George L. Warren, from her, and caused him to desert and abandon her, and she claims damages therefor. The court below held that a married woman in this State cannot maintain an action of this kind. The correction of this holding is the only question to be determined. In Mitchell v. Mitchell, 49 Mich. 68, by an equal division of this court, the judgment of the court below against the wife was affirmed. In that case it appears that the husband was a minor when married. No opinions were filed in the case, and we are therefore not informed as to the reasons for such affirmance. I shall not consider the case as an adjudication of the important question here presented, but shall examine it as if it were a new question before this court. It seems from the brief of counsel in Mitchell v. Mitchell, supra, that the question of the minority of the husband, and the right of his father, who was the defendant, to his services and society, was made a prominent point in the defense of the suit, and this may have been the controlling reason of the decision. No such question is in this case. The right of a wife to recover damages for the alienation of her husband's affections, and the consequent loss of his society, assistance and support, under the laws of this State, is the naked issue involved here. I have no hesitation in holding that she has such right. I do not think it material whether or not she had this right under the common law. In the adjudicated cases there is a difference of opinion as to her common-. law right, some of the courts holding that, "as the wife had no right of property * * * in any damages recovered on her account, for any cause, neither could she have any right of action to recover them." Duffies v. Duffies (Wis.), 45 N. W. Rep. 523; Westlake v. Westlake, 34 Ohio St. 621; Doe v. Roe, 82 Me. 503; Logan v. Logan, 77 Ind. 558; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13.

In New York it is held that it was considered at the common law that the damages for personal injuries belonged to her, as the husband could not sue without joining his wife. If the damages were recovered before the death of the husband, the money so collected became his property; but if he died before the suit was determined, the right of action survived to the wife, and the damages recovered belonged to her. From this it is deduced that the right of action belonged to her. Bennett v. Bennett, 116 N. Y. 584. Under the statute of this State relative to the rights of married women, and the decisions of our own courts in relation thereto, the right of the wife to bring this actiou, as well as all other suits to redress her personal wrongs, seems to me to be perfectly clear. "That the real and personal estate of every female, acquired before marriage, and all property, real and personal,

to which she may afterward become entitled by gift, right is as valuable to her as is that of the husband to grant, inheritance, devise or in any other manner, him." And in Seaver v. Adams (N. H.), 19 Atl. Rep. shall be and remain the estate and property of such 776, it is said: "As in natural justice no reason exists female, and shall not be liable for the debts, obliga- why the right of the wife to maintain an action against tious and engagements of her husband, and may be the seductress of her husband should not be co-extencontracted, sold, transferred, mortgaged, conveyed, sive with his right of action against her seducer, nothdevised or bequeathed by her, in the game manner and ing but imperative necessity would justify a decision in the like effect as if she were unmarried." How. St., that she could not maintain such an action." In fur§ 6295. "Actious may be brought by and against a ther support of her right to maintain suit, see Westlake married woman in relation to her sole property, in the v. Westlake, 34 Ohio St. 633; Bennett v. Bennett, 116 same manner as if she were unmarried; and in cases N. Y. 584; Jaynes v. Jaynes, 39 Hun, 40; Warner v. where the property of the husband cannot be sold, Miller, 17 Abb. N. C. 221; Churchill v. Lewis, id. 226; mortgaged or otherwise incumbered without the con- Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13; Big. Torts, 153; sent of his wife, to be given in the manner prescribed Haynes v. Nowlin (Ind. Sup. Ct., Dec. 8, 1891), 29 N. E. by law, or when his property is exempt by law from Rep. 389; Cooley Torts (2d ed.), note 2 to section 227; sale on execution or other final process issued from any Baker v. Baker, 16 Abb. N. C. 293; Breiman v. Paasch, court against him, his wife may bring an action in her 7 id. 249; Bassett v. Bassett, 20 Ill. App. 543; Foot v. own name, with the like effect as in cases of actions in Card, 58 Conn. 1; Seaver v. Adams (N. H.), 19, Atl. relation to her sole property as aforesaid." How. St., Rep. 776. The cases holding the contrary doctrine are: § 6297. Under these statutes it has been held that a Doe v. Roe, 82 Me. 503; Logan v. Logan, 77 Ind. 558, wife is entitled to and may sue for and recover in her since overruled by Haynes v. Nowlin, supra; Duffies v. own name damages for her personal injuries and suf- Duffies (Wis.), 45 N. W. Rep. 523. The latter case is fering from assault and battery (Berger v. Jacobs, 21 principally relied upon in defendant's brief. With all Mich. 215; Hyatt v. Adams, 18 id. 179-197), and for in- due respect to that court and the learned judge who juries to her person through the negligence of an- wrote the opinion, I cannot recognize the reasoning in other (Railroad Co. v. Coleman, 28 Mich. 440); also for support of the decision as sound. The argument, in slauder. Leonard v. Pope, 27 id. 145. If the damages substance, is that the wife is purer and better than the in such cases are her individual property, as expressly husband, and goverued more by principle, and she selheld in Berger v. Jacobs, I cannot see why, in reason dom violates the marriage obligations. That she is and on principle, the damages arising from the loss of more domestic, and is supposed to have the personal the society and support of her husbaud are not also care of the household. Her duties require her to be her individual property. Surely the support and more constantly at home, where the husband may maintenance which she is entitled to from her hus- nearly always expect to find her and enjoy her society; band, and which she loses by his abandonment, is ca- while the husband is obliged by his business to be frepable of ready and accurate measurement in dollars quently away from home, which deprives his wife of and cents, and can be said to be a property right, | his society. He is exposed to the temptations of the which she has lost by the wrongful interference of the world, to which he easily succumbs, withdrawing him defendants. The loss of the society of her husband, away from her, which condition of things the wife had and her mental anguish and suffering, is not so easily reason to expect when she married him. And that for ascertained when compensation is sought, and to be these reasons it cannot be said that the "wife's right gauged by a money standard; but damages for such an- to the society of her husband is the same in kind, deguish and suffering are given, as best the jury can, and gree and value as his right to her society." It is also are permissible in most actions of tort. said by the learned judge that, "if permitted, the right of action in the wife would be the most fruitful source of litigation of any that can be thought of," and that the justice and advantages of such an action are at least doubtful. It seems to me that the necessary absence from the home of one more than the other can make no difference in their respective rights. Although the wife may never go outside the threshold of the home, the husband cannot enjoy her society unless he is also in the house, uor can she enjoy his society while he is away from her. Nor is the fact that she is purer and more domestic than her husband, and less likely to abandon the home than he is, any reason why she should be denied the same redress that he has in such

Under the Civil Damage Law, which gives a right of action to the wife who has been injured "in her person or property, means of support or otherwise" by any intoxicated person, it has been held in this State that she might recover damages for being excluded from society by her husband's intoxication, and for her mental suffering on account of such drunkenness. Friend v. Dunks, 37 Mich. 25. There has never been any reason urged against the right of the husband to sue for the loss of the consortium of his wife. And if, as shown, the wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her own property, to the damages arising from her personal injuries, the injuries to her body or mind, there can be no good reason why she cannot sue for and recover damages for the loss of the consortium of her husband, that does not equally and as well apply to the suit of the husband on account of the loss of her s0ciety. The wife is entitled to the society, protection and support of her husband as certainly, under the law, and by moral right, as he is to her society and services in his household. "These reciprocal rights may be regarded as the property of the respective parties in the broad sense of the word 'property,' which includes things not tangible and visible, and applies to what is exclusively one's own." Smith, P. J., in Jaynes v. Jaynes, 39 Hun, 40. This is given to her by the marriage relation; it is her property. As is well said in Foot v. Card, 58 Conn. 1: "The right of the husband to the affections and society of the wife has ever been regarded as a valuable property right, and he has always been permitted to sue for the loss of it. Upon principle, this

cases.

Because the history of the race, and our knowledge of human nature, tell us that the wife is less easily led astray, and her affections alienated, than her husband, is no reason why she should be denied the remedy which for the same wrong is freely given him. And if, as suggested by the learned judge, such actions would be numberless if permitted to the wife, it would still furnish no adequate ground for denying to a deserving woman, foully wronged in her dearest rights, the redress that the law gives without question to her husband under like circumstances. It is an old maxim, and a good one, that the law will never suffer an injury and a damage without redress." Will the law aid the husband and not help the wife in a like case? Not under the present enlightened views of the marriage relation and its reciprocal rights and duties. The reasoning that deprives the wife of redress when her husband is taken away from her by the blandishments

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FITZGERALD V. CONNECTICUT RIVER PAPER CO. A servant, by entering an employment necessitating the use of steps, does not assume the risk of an injury by reason of their subsequent icy condition, where, when the contract was made, the steps were not icy, nor was there reason to suppose that the business involved a risk in regard to them.

An employee, in attempting to leave her employer's mill by steps which are the only means of egress, and which are rendered icy by the freezing of spray falling from steampipes, of which fact she is aware, does not, as matter of law, voluntarily assume a risk, which she understands, where the degree of slipperiness is not determinable by ocular inspection.

T. B. O'Donnell, for plaintiff.

T. M. Brown, for defendant.

KNOWLTON, J. There was evidence proper for the consideration of the jury on the question whether the defendant corporation is negligent in permitting the steps on which the plaintiff was injured to be slippery and dangerous. It was its duty to provide on its premises a reasonably safe passage-way for the use of its employees in going to and from their work. There was evidence that fifty women working in the same room with the plaintiff used the steps daily; and it was a question of fact for the jury whether the plaintiff was in the exercise of due care in trying to go down the steps as she did at the time of the accident. The fact that she knew them to be icy, and more or less slippery and dangerous, does not require us to hold as

a

matter of law that she was negligent in trying to go down them, holding by the rail, especially if she had no other way of getting from the mill. The ground on which the ruling for the defendant was made was doubtless that the plaintiff, knowing the icy condition of the steps, assumed the risk of accident, and thereby precluded herself from recovering. It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader application, and which is expressed in the maxim, volenti non fit injuria. The reason on which it is founded is that whatever may be the master's general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is. In the present case it does not appear that the steps were icy, or that there was any reason to suppose that the business involved a risk in regard to them, when the plaintiff entered the defendant's service. It cannot be held

that when she made her contract she assumed the risk of such an injury as she afterward received. We therefore come to the question whether, by her conduct since, she has assumed such a risk.

The doctrine, volenti non fit injuria, has not been very much discussed in the cases in this Commonwealth, but it is well established in the law, and it has been repeatedly recognized by this court. Horton v. Ipswich, 12 Cush. 488; Wilson v. Charlestown, 8 Allen, 137; Huddleston v. Machine Shop, 106 Mass. 282; Mellor 7. Manufacturing Co., 150 id. 362; Miner v. Railroad Co., 153 id. - Wood v. Locke, 147 id. 604; Lewis v. Railroad Co., 153 id. -; Lovejoy v. Railroad, 125 id. 79; Yeaton v. Railroad Co., 135 id. 418; Scanlon v. Railroad Co., 147 id. 484. In England it has been much discussed, and the difficulties in the application of it have frequently been considered by the courts. The rule of law, briefly stated, is this: One who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure. It has often been assumed that the conduct of the plaintiff in such a case shows conclusively that he is not in the exercise of due care. Sometimes it is said that the defendant no longer owes him any duty; sometimes that the duty becomes one of imperfect obligation and is not recognized in law. In one form or another the doctrine is given effect, as showing that in a case to which it applies there is either no negligence toward the plaintiff on the part of the defendant, or a want of due care on the part of the plaintiff.

In Thomus v. Quartermaine, 18 Q. B. Div. 685, Bowen, L. J., says: "The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognizant of the full extent of the danger and voluntarily run the risk." It would be unjust that one who freely and voluntarily assumes a known risk for which another is, in a general sense, culpably responsi ble, should hold that other responsible in damages for the consequences of his own exposure. In Yarmouth v. France, 19 Q. B. Div. 647, Lord Esher, M. R., expresses the opinion that in such a case it is incorrect to say that the defendant no longer owes a duty to the plaintiff, but that it should rather be said that the duty is one of imperfect obligation, performance of which the law will not enforce. It may be said that the voluntary conduct of the plaintiff in exposing himself to a known and appreciated risk is the interposition of an act which, as between the parties, makes the defendant's act, in its aspect as negligent, no longer the proximate cause of the injury; or at least is such participation in the defendant's conduct as to preclude the plaintiff from recovering on the ground of the defendant's negligence. Certainly it would be inconsistent to hold that a defendant's act is negligent in reference to the danger of injuring the plaintiff, and that the plaintiff is not negligent in voluntarily exposing himself when he understands the danger. It is to be remembered that in determining whether a defendant is negligent in a given case, his duty to the plaintiff at the time is to be considered, and not his general duty, or his duty to others. Therefore when it appears that a plaintiff has knowingly and voluntarily assumed the risk of an accident, the jury should be instructed that he cannot recover, and should not be permitted to consider the conduct of the defendant by itself, and find that it was negligent, and then consider the plaintiff's conduct by itself, and find that it was reasonably careful. But this principle applies only when the plaintiff has voluntarily assumed the risk. As is said by Bowen, L. J., in Thomas v. Quartermaine, supra, the maxim is not scienti non fit injuria, but volenti non fit injuria. The chief practical difficulty in applying it is

in determining when the risk is assumed voluntarily. In the first place one does not voluntarily assume a risk who merely knows that there is some danger, without appreciating the danger. On the other hand, he does not necessarily fail to appreciate the risk because he hopes and expects to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture. Sometimes the circumstances may show as a matter of law that the risk is understood and appreciated, and often they may present in that particular a question of fact for the jury.

sents, and while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neg. lected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions." In this Commonwealth, as well as elsewhere, plaintiffs have been precluded from recovering alike where their assumption of the risk grew out of an implied contract in reference to the condition of things at the time of entering the defendant's service, and where they voluntarily assumed a risk which came into existence afterward. Moulton v. Gage, 138 Mass. 390; Taylor v. Manuf. Co., 140 id. 159; Wood v. Locke, 147 id. 604; Murphy v. Greeley, 146 id. 196; Huddleston v. Machine Shop, 106 id. 282; Pingree v. Leyland, 135 id. 398; Gilbert v. Guild, 144 id. G01; Lothrop v. Railroad Co., 150 id. 423; Mellor v. Manuf. Co., id. 362; Minor v. Railroad Co., 153 id. -; Lewis v. Railroad Co., id.

The court has recognized the doctrine that mere knowledge of a danger will not preclude a plaintiff from recovering unless he appreciates the risk. Scan

son, 126 id. 506; Ferren v. Railroad Co., 143 id. 197; Taylor v. Manufacturing Co., 140 id. 150; Williams v. Churchill, 137 id. 243; Lawless v. Railroad Co., 136 id. 1. See also Thomas v. Quartermaine and Yarmouth v. France, supra. Many other cases in which the plaintiff has not been precluded from recovering may be referred to this principle, and some of them more properly rest on the ground that there were such consider

a question whether the assumption of the risk was
voluntary or under an exigency which justified his ac-
tion and induced him unwillingly to encounter a dan-
ger to which he was wrongfully exposed. Pomeroy v.
Westfield, 154 Mass. -; Mahoney v. Railroad Co., 104
id. 73: Lyman v. Amherst, 107 id. 339; Thomas v. Tele-
graph Co., 100 id. 156; Dewire v. Bailey, 131 id. 169;
Looney v. McLean, 129 id. 33; Gilbert v. Boston, 139 id.
313; Eckert v. Railroad Co.. 43 N. Y. 502. Whether
the fear of losing one's situation would constitute such
an exigency, where the place had become dangerous
by reason of the negligence of the employer to repair
it, especially if notice of the danger had been given by
the servant, and there had been a promise speedily to
repair it, we need not decide in this case.
See Leary
v. Railroad, 139 Mass. 580; Haley v. Case, 142 id. 316;
Westcott v. Railroad Co. (Mass.), 27 N. E. Rep. 10.

What constraint, exigency or excuse will deprive an act of its voluntary character when one intentionally exposes himself to a known risk is a question about which learned judges differ in opinion. It has been held by some that where a man is not physically constrained, where he can take his option to do a thing or uot to do it, and does it, he must be held to do it voluntarily. See opinion of Lord Bramwell in Membery v. Railway Co., L. R., 14 App. Cas. 179, and the dis-lon v. Railroad Co., 147 Mass. 484; Linnehan v. Sampsenting opinion in Eckert v. Railroad Co., 43 N. Y. 502. But by the authorities generally, one who in an exigency reluctantly determines to take a risk is not held so strictly. There has been much difference among the English judges in regard to the question whether a servant who discovers a defect in machinery, not existing when he entered the service, which the master is bound to repair, and who works ou, understanding the danger, rather than to lose his place by complain-ations of duty or exigency affecting him as to present ing of it, or refusing to work until it is repaired, shall be held to have voluntarily assumed the risk. In Membery v. Railway Co., supra, Lord Bramwell expresses the opinion that the plaintiff cannot recover in such a case, while the lord chancellor and Lord Herschell, without expressing an opinion, prefer to keep the question open for future consideration. In Thrussell v. Handyside, 20 Q. B. Div. 359, the Court of Queen's Bench holds that a workman, by continuing to work under such circumstances, does not voluntarily assume the risk; and in Yarmouth v. France, 19 Q. B. Div. 647, a majority of the Court of Appeal are of the same opinion. In Sullivan v. Manufacturing Co., 113 Mass. 396, is the following language: "Though it is a part of the implied contract between master and servant (where there is only an implied contract) that the mas ter shall provide suitable instruments for the servant with which to do his work, and a suitable place where, when exercising due care himself, he may perform it with safety, or subject only to such hazards as are necessarily incident to the business, yet it is in the power of the servant to dispense with this obligation. When he assents therefore to occupy the place prepared for him, and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such a place might with reasonable care, and by a reasonable expense, have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected." Goodnow v. Mills, 146 Mass. 261, it is said that "there was no danger which, in view of the plaintiff's knowledge and capacity, must not have been well understood by or apparent to him, and there was therefore no negligence on the part of the defend- | ant in exposing him to it." In Leary v. Railroad Co., | 139 Mass. 580, Mr. Justice Devens uses these words: "But the servant assumes the dangers of the employment to which he voluntarily and intelligently con

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We are of opinion that it cannot be said as a matter of law that the plaintiff in the present case, in attempting to go down the steps, voluntarily assumed a risk which she understood and appreciated, and which resulted in the accident. She knew that the steps were icy, and that there was some danger in passing over them. But the evidence tended to show that their condition in regard to slipperiness was constantly changing in different states of the weather, with the spray falling daily from steam pipes and freezing upon them. Common experience tells us that the degree of slipperiness of ice is not always determinable from an ocular inspection of it. If it were certain that the extent of the danger was obvious to one who saw the surface of the steps, the case would be different. Besides there was evidence tending to show that she had no way of leaving the defendant's mill except by going down the steps, and that was important to be considered in deciding whether she took the risk voluntarily. Osborne v. Railroad Co. 21 Q. B. Div. 220, a case in which the plaintiff sued to recover for an injury received in going down some icy stone steps, is precisely in point. It is said in the opinion, referring to the language of the justices in Yarmouth v. France, and Thomas v. Quartermaine, supra, that "those observations go far to make it hard for a defendant to

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