Taylor v. Home Telephone Co. , 163 Mich. 458 ( 1910 )

Ostrander, J.

(after stating the facts). The plaintiff’s act was voluntary, the wetting she got was inevitable. Did she, as defendant contends, assume all the consequences of the wetting, whatever they might be ? The principle expressed in the maxim, “Volenti non fit injuria,” is subject to qualifications, which are sometimes stated as qualifications of the rule, but are quite as often recognized as rules in determining the proximate cause of an injury and the contributory negligence of the injured person. Courts have frequently refused to so apply the principle as to deny to one who has at actual risk of injury sought to save property or a person from damage or destruction the right to recover damages.,, A valuable collection of authorities appears in the note to Fisher v. Railway Co. (Va.), 2 L. R. A. (N. S.) 954. See, also, 1 Thompson on Law of Negligence, § 185 et seq.

In Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703), the plaintiff entered a burning shed to release a horse belonging to her husband and was burned. Under the circumstances, and as matter of law, the right to recover was denied. In Harris v. Township of Clinton, 64 Mich. 447, 455 (31 N. W. 425, 428, 8 Am. St. Rep. 842), it is said, citing Cook v. Johnston and other cases:

“ If the danger is known, and can be easily avoided, a peril voluntarily and unnecessarily assumed may constitute such contributory negligence as would preclude a recovery.”

It was held that the question was properly submitted to a jury. In La Duke v. Township of Exeter, 97 Mich. 450 (56 N. W. 851, 37 Am. St. Rep. 357), it appeared that plaintiff deliberately attempted to prevent the struggles of his horse, whose feet and legs were fast in a defective bridge. There was, of course, some risk of injury from the movements of the animal. How much risk depended upon many circumstances. He was injured by the horse, and the contention that the negligence of defendant was not the proximate cause of his injury was overruled.^ In Milbourne v. Power Station Co., 140 Mich. 316, 321 (103 N. W. 821, 823, 70 L. R. A. 600), it is said:

“ The fact that one takes a risk in the performance of a duty is a circumstance entitled to great weight in determining whether his conduct was negligent.”

S In these, as in ail of the cases which have been examined, there was, or was supposed to be, a chance, more or less probable, of escaping any direct consequences of defendant’s negligence. In the case at bar no such chance existed or could have been supposed to exist. May the plaintiff say that the consequences other than a mere wetting were not anticipated by her, and therefore the peril of them was not assumed, and at the same time insist that they were the direct result of defendant’s ■ negligence — of the single occurrence — and defendant must respond in damages? We are of opinion that she may not do so, ' and that the maxim referred to must be applied.

The judgment is affirmed.

’"'Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.