466 HARVARD LAW REVIEW, ignore the fact that the whole question turns on just that point, whether there is any " breach of duty" towards any employee in such a position. There has been some discussion, confined, however, to the Eng- lish cases, as to how far a statutory duty ^ to guard machinery, or against danger, took away from a defendant the defence of Volenti. The result of the cases seems to be that a statutory duty is not of such a nature that in no event can it be waived by conduct on the plaintiff's part. It simply places upon the defendant the burden of proving not only knowledge, but that as a matter of fact the servant has dispensed with the performance of the master's statutory duty.^ The doctrine of Volenti has been chiefly of importance in its application under the restricted form known as Employee's Risk.^ The rule that an employee impliedly contracts to assume the obvious and incidental risks of his employment was laid down by Judge Shaw in 1842.* The reasons for the implication of such a contract have generally been held to be, (i) that an employee's compensation is regulated according to the risks ; ^ (2) that it is public policy, the absence of remedy making the workman more careful; (3) that the servant is as likely to know and to be able to guard against the perils as the master. As to (i), students of political economy know that as a matter of fact wages of a particular workman are not regulated in this way. As to (2), unless it is careless in a workman to try to obtain employment which may involve risk, it is hard to see why public policy demands that he should have no remedy in case of injury.^ The third reason would seem to be the true one ; but there is no need of alleging an implied contractual agreement to waive 1 Note, this does not refer to a statutory liability in action for negligence, as dis- cussed supra. 2 Clark V. Holmes, 7 H. & N. 937 ; ( 1862) ; Britton v. G. W. Cotton Co., L. R. 7 Ex. 136, and esp. 41 L. J. Ex. loi ; Beven on Negligence, §§ 348, 349. The case of Baddeley V. Earl Granville, 19 Q. B. D. 433, discussing this defence, is ill considered and a wrong statement of the law. See article in Law Mag., November, 1887.
- Cf. Mahoney v. Dore, 155 Mass. p. 518 (1892).
- Farwell v. B. & W. R. R., 4 Mete. p. 57 (1842) ; Hutchinson v. York, N. & B. Ry.
5 Exch. 351 (1850) ; Seymour v. Maddox, 16 Q. B. 332 {1851) ; Bartonshiel Coal Qo.v. Reid, 3 Macq. [H. of L.] 277 (1856). 6 Cf. esp. Chicago R. R. v. Rose, 112 U. S. 382 (1884). 8 Cf. State V. Nain, 2 Dev. Law. 263, where it is said that the law denied any civil remedy to slaves out of humane regard to the best interests of the slaves.
