DR RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW

2011-12

FINAL PROJECT

STUDY OF BASICS OF CASE LAW

SMITH V CHARLES BAKER amp SONS

Submitted to- Submitted by-

MrSHASHANK SHEKHAR AVIRALUMRAO

AsstProfessor (case law) Roll no-31

Semester-I

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude

to my teacherMrSHASHANK SHEKHARwho gave

me the golden opportunity to do this wonderful

project on the topic-CASE BRIEFE ON CASE-

SMITH V CHARLES BAKER amp SONS which also

helped me in doing a lot of Research and i came to

know about so many new thingsI am really thankful

tohim

Secondly i would also like to thank my seniors and

friends who helped me a lot in finishing this project

within the limited time

CONTENTS

Introduction case briefing Statement of facts Procedural history Issues Judgment Representation Order of the court Conclusion

INTRODUCTION

Its chief purpose is to give guidance to the reader on how to

read a case in order to identify extract and where necessary

apply its ratio decidendi All those training for the Bar have in

theory read many cases at the academic stage and do have

learned to do this But you may not ever have given much

comprehensive thought to the process of reading a case or to

identifying exactly what the ratio of it is Also anecdotal

evidence suggests that there are some who have got by to a

very large extent using case books which contain only digests

of cases or simply by reading the headnote of a case which

contains a short statement of what the reporter considers to be

its ratio but which may or may not be accurate particularly

after the case has been interpreted by a court in a later case

SMITH v CHARLES BAKER amp SONS 1

CASE NO-

BAILII Citation Number [1891] UKHL 2APPELLANT-

JOSEPH SMITH (PAUPER)RESPONDRNT-

CHARLES BAKER amp SONS

DATE OF JUDGMENT-

21 JULY 1981

BENCH-

Lord Halsbury LC

Lord Bramwell

Lord Watson

Lord Herschell

Lord Morris

FACT-

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude

to my teacherMrSHASHANK SHEKHARwho gave

me the golden opportunity to do this wonderful

project on the topic-CASE BRIEFE ON CASE-

SMITH V CHARLES BAKER amp SONS which also

helped me in doing a lot of Research and i came to

know about so many new thingsI am really thankful

tohim

Secondly i would also like to thank my seniors and

friends who helped me a lot in finishing this project

within the limited time

CONTENTS

Introduction case briefing Statement of facts Procedural history Issues Judgment Representation Order of the court Conclusion

INTRODUCTION

Its chief purpose is to give guidance to the reader on how to

read a case in order to identify extract and where necessary

apply its ratio decidendi All those training for the Bar have in

theory read many cases at the academic stage and do have

learned to do this But you may not ever have given much

comprehensive thought to the process of reading a case or to

identifying exactly what the ratio of it is Also anecdotal

evidence suggests that there are some who have got by to a

very large extent using case books which contain only digests

of cases or simply by reading the headnote of a case which

contains a short statement of what the reporter considers to be

its ratio but which may or may not be accurate particularly

after the case has been interpreted by a court in a later case

SMITH v CHARLES BAKER amp SONS 1

CASE NO-

BAILII Citation Number [1891] UKHL 2APPELLANT-

JOSEPH SMITH (PAUPER)RESPONDRNT-

CHARLES BAKER amp SONS

DATE OF JUDGMENT-

21 JULY 1981

BENCH-

Lord Halsbury LC

Lord Bramwell

Lord Watson

Lord Herschell

Lord Morris

FACT-

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

CONTENTS

Introduction case briefing Statement of facts Procedural history Issues Judgment Representation Order of the court Conclusion

INTRODUCTION

Its chief purpose is to give guidance to the reader on how to

read a case in order to identify extract and where necessary

apply its ratio decidendi All those training for the Bar have in

theory read many cases at the academic stage and do have

learned to do this But you may not ever have given much

comprehensive thought to the process of reading a case or to

identifying exactly what the ratio of it is Also anecdotal

evidence suggests that there are some who have got by to a

very large extent using case books which contain only digests

of cases or simply by reading the headnote of a case which

contains a short statement of what the reporter considers to be

its ratio but which may or may not be accurate particularly

after the case has been interpreted by a court in a later case

SMITH v CHARLES BAKER amp SONS 1

CASE NO-

BAILII Citation Number [1891] UKHL 2APPELLANT-

JOSEPH SMITH (PAUPER)RESPONDRNT-

CHARLES BAKER amp SONS

DATE OF JUDGMENT-

21 JULY 1981

BENCH-

Lord Halsbury LC

Lord Bramwell

Lord Watson

Lord Herschell

Lord Morris

FACT-

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

Its chief purpose is to give guidance to the reader on how to

read a case in order to identify extract and where necessary

apply its ratio decidendi All those training for the Bar have in

theory read many cases at the academic stage and do have

learned to do this But you may not ever have given much

comprehensive thought to the process of reading a case or to

identifying exactly what the ratio of it is Also anecdotal

evidence suggests that there are some who have got by to a

very large extent using case books which contain only digests

of cases or simply by reading the headnote of a case which

contains a short statement of what the reporter considers to be

its ratio but which may or may not be accurate particularly

after the case has been interpreted by a court in a later case

SMITH v CHARLES BAKER amp SONS 1

CASE NO-

BAILII Citation Number [1891] UKHL 2APPELLANT-

JOSEPH SMITH (PAUPER)RESPONDRNT-

CHARLES BAKER amp SONS

DATE OF JUDGMENT-

21 JULY 1981

BENCH-

Lord Halsbury LC

Lord Bramwell

Lord Watson

Lord Herschell

Lord Morris

FACT-

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

CASE NO-

BAILII Citation Number [1891] UKHL 2APPELLANT-

JOSEPH SMITH (PAUPER)RESPONDRNT-

CHARLES BAKER amp SONS

DATE OF JUDGMENT-

21 JULY 1981

BENCH-

Lord Halsbury LC

Lord Bramwell

Lord Watson

Lord Herschell

Lord Morris

FACT-

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

The plaintiff was employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employ of the contractors The crane lifted stones and at times swung over the plaintiffs head without warning The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given and had been thus employed for months A stone having fallen from the crane and injured the plaintiff he sued his employers in the County Court under the Employers Liability Act 1880

ISSUE-

1Defence of Volenti non fit injuria was limited in employee situations

2 Whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

JUDGMENT-

It was held by the House of Lords reversing the decision of the Court of Appeal (Lord Bramwell dissenting) that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

that the maxim Volenti non fit injuria did not apply and that the action was maintainable

According to LORD HALSBURY LC-

That in order to defeat a plaintiffs right by the application of the maxim relied onwho would otherwise be entitled to recover the jury ought to be able to affirm that he consented to theparticular thing being donewhich would involve the risk and consented to take the risk upon himself It ismanifest that if the proposition which I have just enunciated be applied to this case the maxim could herehave no application So far from consenting the plaintiff did not even know of the particular operation thatwas being performed over his head until the injury happened to him and consent therefore was out ofthe questionAs I have intimated before I do not deny that a particular consent may be inferred from a general courseof conduct Every sailor who mounts the rigging of a ship knows and appreciates the risk he isencountering The act is his own and he cannot be said not to consent to the thing which he himself isdoing And examples might be indefinitely multiplied where the essential cause of the risk is the act of thecomplaining plaintiff himself and where therefore the application of the maxim ldquoVolenti non fit injuriardquo iscompletely justified treated the question apart from the specific findings by the jury But I am not disposed tothink that those findings were not justified upon the evidence presented They found that the machineryfor lifting the stone from the cutting was not reasonably fit for the purpose for which it was applied taken as a hole I think the jury meantmdashand if they did so mean I am of

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

opinion that they were rightmdashthatlooking to the risk incurred by the men working below and to the possibility of the crane when worked letting stones fall the machinery was not reasonably fit for the purpose for which itwas applied that is to say not reasonably fit for securing that stones should not fall from it when slungover mens heads And further that if with such machinery the stones were being slung over mens headsspecial warning ought to have been supplied to the men imperilled by such an operation and that theemployers were guilty of negligence in not remedyingsucha mode of working such machinery undersuch conditions of work negligent mode of using perfectly sound machinery may make the employer liable quite apart from any ofthe provisions of the Employers Liability Act In Sword v C ameronit could hardly be doubted that thequarryman 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 Swordv C ameron 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 formof the employment prevented his hearing the signal which gave him warning to retreat In this case as Ihave pointed out there was no warning and no signal but the employer or his representative employedthe plaintiff under

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

such circumstances as disabled him from using his eyes for protecting himself againstthe riskIt seems to me therefore that this is a case in which the plaintiff is entitled to recover and I thereforemoveyour Lordships that the judgment of the C ourt of Appeal be reversed and the judgment of thecounty court judge restored

According to LORD WATSON

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 partnay more in the notice of motion by way of appeal in the Queens Bench Division no objection wastaken that there was no evidence of negligence The question of law raised at the trial both at the close of the plaintiffs 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 negligenceThe 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 C ourt of Appeal as to their competency to entertain and decide upon a point not made at the trial nor does the case of C larkson v Musgrave 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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

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 opinionthat point is not now open and the case must be dealt with assuming the findings of the jury as to the negligence of the defendantsHe worked for months knowing there was no special warner to caution him but running his chance ofgetting 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 objectirdquong at the trial to the want of any evidence to support the first finding while it stands the maxim ldquoVolenti non fit injuriaappears 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 Quartermainefor the same reason is no authority for the respondents contentionIn 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 C ourt to the C ourt of Appeal or to your Lordships House

According to LORD BRAMWELLmdash

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway 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 all1048756 Lopes LJ says the same 1048756This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sinceI 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 LJ gives judgmentthe same way his judgment is of extra importance because it shews that Yarmouth v France relied on for the plaintiff is not in the opinion of Lindley LJ 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 sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

dangerous employment they do so without making other people liable for injuries they sustainI cite also his Lordships opinion to justify my own that the jury were ledaway by sympathy for they found matters that were not in the least warranted by the evidence I thinkthere was no evidence of negligence at allLopes LJ says the same This case is clearly within the decisions that have been pronounced in theC ourt below and in this C ourt 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 sincehe 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 people will enter into dangerous employment they do so without making other peopleliable for injuries they sustainI cite also his Lordships 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

According to LORD MORRIS -

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

The respondents in not supplying means of warning when the stones were being jibbed do not avail thenplaintiff 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 extentHe 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 bothsciens 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 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 C ourt to the C ourt of Appeal

REPRESENTATIONS

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

Solicitors for appellant- J H BridgfordforLongbottomamp Sons HalifaxSolicitors for respondents- Watson Sons amp Room for Neill amp Broadbent Bradford

ORDER OF COURT-

Order of the Court of Appeal reversed and order of the Queens Bench Division restored the respondents to pay to the appellant the costs in the Court of Appeal and the costs incurred by him in respect of his appeal to this House the costs in this House to be taxed in the manner usual when the appellant sues in form pauperis cause remitted to the Queens Bench Division Lords Journals 21st July 1891

CONCLUSIONS-

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

The House of Lords decision in Smith v Baker amp Sons [1891] was the first case in which the defence of Volenti non fit injuria was limited in employee situations

It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control - the danger being created or enhanced by the negligence of the employer - the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not conclusive to show that he has undertaken the risk so as to make the maxim Volenti non fit injuria applicable in case of injury The question whether he has so undertaken the risk is one of fact and not of law And this so both at common law and in cases arising under the Employers Liability Act 1880

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1

• SMITH V CHARLES BAKER amp SONS
• ACKNOWLEDGEMENT
• I would like to express my special thanks of gratitude to my teacherMrSHASHANK SHEKHARwho gave me the golden opportunity to do this wonderful project on the topic-CASE BRIEFE ON CASE- SMITH V CHARLES BAKER amp SONS which also helped me in doing a lot of Research and i came to know about so many new thingsI am really thankful tohim Secondly i would also like to thank my seniors and friends who helped me a lot in finishing this project within the limited time
• SMITH v CHARLES BAKER amp SONS1