At the conclusion of plaintiffs evidence, the trial court granted defendant’s motion for a nonsuit. Defendant now appeals from an order granting plaintiff a new trial.
*612The primary, issue is whether the maxim of volenti non fit injuria bars plaintiff’s recovery.
Plaintiff had lived in defendant’s apartment house for’ five years. There were front and back stairways. Plaintiff' had used the back stairway at least twice a .week during his tenancy. He preferred, however, tó use the front stairway because he considered the back stairway dangerous. It was enclosed on both sides; it did not have a handrail.
On the day of the accident, plaintiff was helping another tenant move from her apartment, which was on the second floor and next to the rear stairway. Plaintiff was carrying a box- weighing fifteen or twenty pounds when he tripped over a raised threshold that extended the width of the rear stairway. The threshold was one half to five eighths of an inch above floor level, but its height was hidden from view by the warped or cupped linoleum behind it. Plaintiff sustained injuries from his fall down the stairway. Although plaintiff was aware of the general condition of the stairs, he did not have specific knowledge of the raised threshold.
The maxim volenti non fit injuria means “That to which a person assents is not esteemed in law an injury.” Walsh v. West Coast Coal Mines, 31 Wn. (2d) 396, 407, 197 P. (2d) 233 (1948).
The principle underlying the maxim is stated in Gover v. Central Vermont R. Co., 96 Vt. 208, 118 Atl. 874 (1922):
“ . . . If one knowing and comprehending the danger voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. The maxim is predicated upon the theory of knowledge and appreciation of the danger and voluntary assent thereto.” (Italics ours.) (Quoted with approval in Walsh v. West Coast Coal-Mines, supra, p. 407, and Ewer v. Johnson, 44 Wn. (2d) 746, 759, 270 P. (2d) 813 (1954)).
More specifically, this court pointed out, in Kingwell v. Hart, 45 Wn. (2d) 401, 405, 275 P. (2d) 431 (1954), that the problem, here presented by counsel, finds solution in the answer to three questions:
*613. . Did pláintiff (1) know of and appreciate the danger or risk involved, and also (2) did he voluntarily consent to expose himself to it (‘voluntarily’ including the meaning that defendant’s conduct has left plaintiff a reasonable election or alternative. See Emerick v. Mayr, 39 Wn. (2d) 23, 25, 234 P. (2d) 1079 (1951)), and (3) was the exposure unreasonable, that is, was it such that a reasonable person in plaintiff’s position would not expose himself to it, or, after accepting a reasonable risk, did plaintiff exercise proper care for his own protection against that risk.” (p. 405. )
“If the first two questions are answered affirmatively, the defense under the ‘volenti’ maxim is established regardless of negligence. ... In the first two of these inquiries, the plaintiff’s state of mind is controlling, ...” (p. 406. )
A careful reading of plaintiff’s evidence convinces us, as it did the. trial court upon reconsideration, that it cannot be said that the maxim volenti non fit injuria forecloses plaintiff’s recovery as a matter of law.
Plaintiff was candid and honest in speaking of his knowledge of the general condition of the two stairways and his apprehension in using the back stairway; but the most his testimony discloses is his appreciation of the difference between the front and back stairways. He expressed a preference in his use of them. The trial court observed
“. . . He did not, however, know of the raised hoard which constituted the top step upon which he caught his foot and which precipitated him into the stairway, in an unbalanced condition and, as a consequence, of course, he did fall.” (Italics ours.)
In Ewer v. Johnson, 44 Wn. (2d) 746, 759, 270 P. (2d) 813 (1954), we approved an instruction which stated in part:
“ ‘. . . if he comprehends the nature and the degree of the danger and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture.’ ” (Italics ours.) (p. 759.)
In the Ewer case, the injured plaintiff was working, by choice, in a position of obvious peril — in a dust cloud that *614obscured traffic. The “volenti” doctrine did not prevent plaintiff’s case from being submitted to the jury because there was evidence that plaintiff believed another man was outside the dust cloud stopping traffic, a belief that was contrary to the facts.
By analogy, the Ewer case controls the instant one; there is no evidence that plaintiff knew of the raised threshold.
We agree with the trial court
"... that in order to prevail upon the defense of volenti as a matter of law that the Defendant must show that the Plaintiff actually knew of the precise condition which added to his peril, and if the Plaintiff did not have such knowledge, how can it be said that he could appreciate the degree of risk involved? . . . ”
Whether plaintiff came within the purview of the maxim was a question of fact for the jury.
The order granting a new trial is affirmed.
Hill, Donworth, and Foster, JJ., concur.