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ner as provided for determining a the case without the ruling becoming defendant's culpable causation under a precedent, or the law develops a § 173, ante; i. e., the abstract rule only is stated by the judge, and the jury's verdict does not become a precedent of law.1

concrete rule for a particular set of circumstances and this rule binds both judge and jury in all similar cases. Thus, concrete rules may declare as

The principle is applied exceptionally a matter of law that it is or is not conby the judge alone, in the same manner tributory fault per se for a plaintiff as provided for determining a defend- to approach a railroad track without ant's culpable causation, under § 173 stopping to look and listen, or to dispar. (2), ante; i. e., either the judge mount from a railroad car while in rules upon the total circumstances of motion, etc.2

Topic 3. Sundry Incidents and Limitations of the Orthodox
Common Law Rule

vehicle;

§ 242. (A) Third Person's Fault Im- third person his agent to manage the puted to Plaintiff. (1) Child. When the plaintiff is a child, the contributory fault of a parent or guardian or other person lawfully in charge of the plaintiff does [not] excuse the defendant.3

But (1) where such parent or other person would be a beneficiary in any action for loss of service or for death, such person's fault does [not] excuse the defendant [except to the extent of

such part of the compensation as that person would have received]; 4

and (2) where the child itself has contributed to cause its injury, this excuses the defendant, in an action for

the child's own injury, provided the

law of Persons declares the child capable of legal fault under the circumstances.

In such a case, the parent's action is governed by § 244, post.

§ 243. Same: (2) Passenger. When the plaintiff is a passenger in a vehicle managed by a third person whose fault contributes with the defendant's to cause the injury, the third person's fault does [not] excuse the defendant; 5 unless the plaintiff (1) had made the

or, (2) was by his acts at the time sharing in the third person's fault;

6

or, (3) had beforehand assumed the risk of the third person's fault, on the principle of § 249, post.

$244. Same: (3) Third Person rendering Service. Where the plaintiff is a person entitled to the services or support of a third person (child, wife, husband) injured by the defendant, the third person's contributory fault does [not] excuse the defendant, in an action for the loss of the third person's services or support.7

§ 245. (B) Defendant's Fault based on Statute. Where the defendant's fault in causing the harm consists in the violation of an express statutory prohibition (negligence per se, under § 201, ante), and the statute does not expressly declare contributory fault to be immaterial, the plaintiff's contributory fault is an excuse; [unless a main implied purpose of the statute

1 Detroit & M. R. Co. v. Van Steinburg, No. 640.

2 Atchison, T. & S. F. R. Co. v. Schriver, No. 641; Smith v. Maine C. R. Co., No. 642; Grant v. Oregon R. & N. Co., No. 643; New York C. & H. R. R. Co. v. Maidment, No. 644; Chicago & A. R. Co. v. Byrum, No. 645.

3 Hartfield v. Roper, No. 647; Berry v. Lake Erie & W. R. Co., No. 648.

4 Wymore v. Mahaska Co., No. 649; Wolf v. Lake Erie & W. R. Co., No. 650. Three differing rules are thus here found in different jurisdictions.

5 Thorogood v. Bryan, No. 651.

6 Cotton v. Willmar & S. F. R. Co., No. 652.

7 Honey v. C. B. & Q. R. Co., No. 653.

was to guard from harm persons in the defendant is inseparable, and the risk situation of the plaintiff].1

§ 246. (C) Defendant's Act Intentional. Where the defendant caused the harm by intention, the plaintiff's contributory fault is not an excuse.2

§ 247. (D) Defendant's Gross Comparative Negligence. Where the defendant's fault in causing the harm is gross in comparison with the plaintiff's, the plaintiff's contributory fault is not an excuse.3

This modification was a well-meant attempt to devise a fairer rule which should better adjust the equities; and thus has the same aim as the Admiralty and the Georgian forms of the rule, as well as the rules of § 246, ante, and § 248, post. But the moment any elaboration of its phrasing is entered on, it becomes a maze of unmeaning words. It is supposed to have been abandoned in Illinois, its place of invention.

§ 248. (E) Defendant's Option Not "Last Clear to Avoid the Harm; Chance." The plaintiff's contributory fault is no excuse, if before the time of the harm done the physical power to avert it had ceased for the plaintiff while still continuing for the defendant for an appreciable time afterwards, and if the defendant still continued to be culpable in not avoiding the harm.

§ 249. (F) Plaintiff's Prior Option Not to Avoid the Harm (Avoidable Damage; Assumption of Risk). General Principle. Where the plaintiff's contributory act, alleged to be a fault, is an initial act involving a desirable and otherwise legitimate course of conduct from which the risk of harm by the

could be avoided by the plaintiff only
by doing a different initial act and thus
abandoning the whole course of con-
duct in question for another and less
preferable course of conduct, the do-
ing of the initial act by the plaintiff is
not a fault such as excuses the defend-
ant; provided

(1) the sacrifice involved for the
plaintiff in refraining from the initial
act would have been unfair under the
circumstances; and

(2) the plaintiff does the act in its details in such a manner as to reduce the risk to a reasonable minimum.

The plaintiff's contributory fault, i. e., the doing of an act from which he foresaw or might have foreseen the risk of the harm, and from which therefore he ought morally to have refrained (ante, § 171), may consist either (1) in the act itself as a whole, When it is of the or (2) in the mode of doing the act as to some detail. former sort, the risk of harm is involved in any and every mode of doing the act, especially when the doing of the act is considerably prior to the time of the harm. When, therefore, the mere doing of the act involves a risk of harm, the culpability of doing it will depend on the alternative act which the plaintiff might have chosen for avoiding the risk. Now the more the initial act is carried back prior to the time of the harm, the longer is the series of other intervening consequences which will be different if the plaintiff elects some other act as the alternative of the initial one. If, then, by doing the alternative act, and avoiding the risk of harm, he abandons a whole series of other intervening consequences (conduct or events), which are intrinsically proper enough, but which must be abandoned if the initial act is abandoned, the question is presented whether it is fair thus to force him to

1 Curry v. Chicago & N. W. R. Co., No. 654; Carterville Coal Co. v. Abbott, No. 655; Statute, No. 656.

2 Brownell v. Flagler, No. 657; Ruter v. Foy, No. 658.

Galena & C. U. R. Co. v. Jacobs, No. 659; Chicago, B. & Q. R. Co. v. Johnson, No. 660; Calumet I. & S. Co. v. Martin, No. 661; Lake Shore & M. S. R. Co. v. Hessions, No. 662; Lanark v. Dougherty, No. 663.

4 Davies v. Mann, No. 664; Tanner's Ex'r v. Louisville & N. R. Co., No. 665; Nashua I. & S. Co. v. Worcester & N. R. Co., No. 666; Pollock, No. 667; Pierce v. Cunard S. S. Co., No. 668; Richmond Traction Co. v. Martin, No. 669; Stanford v. St. Louis & S. F. R. Co., No. 670.

Examples. (1) Sundry situations.? (2) Placing buildings or goods on one's own premises, but in proximity to a danger of fire or explosion negligently caused by the defendant on adjacent premises, is ordinarily not an assumption of risk.3

abandon the one and adopt the other which he assumed the risk by inaccourse of action solely because of the tion. risk of harm created by the defendant's act and solely to save the defendant § 250. Same: Sundry Specific Rules. from the probable liability to compen- The foregoing general rule may in sate for that harm. In other words, Is various situations be reduced by law it fair to expect the plaintiff to sacri- to specific rules, declaring that particfice a desirable and legitimate course of conduct, for a less desirable one, solely ular conduct of the plaintiff is or is in the interest of an unmeritorious not, as matter of law, an assumption defendant? It is not; unless there is of risk. some disproportion between the slight certain sacrifice which this would involve for a plaintiff and the great probable liability for the defendant. Examples: (a) The defendant locks the plaintiff into a room on the second floor; the risk of breaking a leg is inseparable from the act of escaping by the window; but to refrain from so escaping is to stay all night in the room and to miss important business; if therefore the plaintiff uses all precautions in climbing out, but falls nevertheless, was his act in climbing out an assumption of risk? (b) The defendant digs a hole in the street and leaves it unguarded; the plaintiff, knowing of the hole, drives carefully up the street, but the horse, becoming frightened, overturns the wagon into the hole. Was the plaintiff's act in driving up the street an assumption of risk (1) if his house was on that same block and otherwise inaccessible; (2) if his house was in another street and was easily accessible by another . road?

The term "Assumption of Risk" is loosely applied to this class of cases, but with no settled distinction from the term "Contributory Negligence." The term "Avoidable Damage" is commonly used where a cause of action already exists for some other harm and the plaintiff's claim for damages includes additional harms of

1 Schlemmer v. R. Co., No. 690.

(3) Going to live where a nuisance already exists, is not.

Distinctions. Express or implied consent (ante, § 233) may here be found to excuse the defendant.

§ 251. Same: Employee's Assumption of Risk. An employee, by the act of accepting employment, assumes the risk of injury caused by

(1) the defective condition of the employer's premises or apparatus, if the defect is known to the employee; (2) the negligent act of a fellowservant.

These common-law rules have in recent times come to impress the community as unfair by the test of § 249; and statutes have begun everywhere to change them. But as this question is involved with the questions of liability for agents' torts and of the propriety of placing the risk of non-culpable harm on the industry and not solely on the employer, the mere change of the present rule alone would be unwise.

2 Loker v. Damon, No. 673; Gilbert v. Kennedy, No. 674; Wilson v. Charlestown, No. 675; Pomeroy v. Westfield, No. 676; Eckert v. Long Island R. Co., No. 677; Cook v. Johnston, No. 678; Pegram v. R. Co., No. 679; Engleken v. Hilger, No. 680.

3 Cook v. Champlain T. Co., No. 681; Judson v. Giant Powder Co., No. 682. 4 Susquehanna Fertilizer Co. v. Malone, No. 684.

5 Huntington & K. L. D. Co. v. Phoenix P. M. Co., No. 683.

Seymour v. Maddox, No. 687; Thomas v. Quartermaine, No. 689; Smith v.

Baker, No. 689; Schlemmer v. R. Co., No. 690.

SUB-TITLE (IV): PLAINTIFF A LAW-BREAKER

§ 252. General Principle. The fact | purpose, (a) if a criminal law, to prethat a plaintiff at the time of receiving vent by penalty the entire transaction an injury is doing an act in violation in which the plaintiff was engaged, or (b) of the law is not an excuse for the de- if a civil or a criminal law, to protect fendant who has negligently caused the an interest of the defendant which the harm; unless plaintiff was attempting to injure.1

as

(1) the unlawful act contributed, a a cause (not merely as a condition) to the harm, and

(2) the law violated had for a main

Clause (1) only is used as a definition by some Courts; but is inadequate. Clause (2), or something like it, is generally recognized.

SUB-TITLE (V): APPLICATION OF THE FOREGOING PRINCIPLES (III) AND (IV) TO PERSONS INJURED WHILE ON THE DEFENDANT'S PREMISES

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§ 256. Invitees. When such a plaintiff is an invitee, the plaintiff's presence on the land does not of itself give rise to any excuse, and the defendant's liability is determined by the usual standards of culpability."

Distinctions. (1) The rulings in favor of plaintiffs in some common cases, e. g., injury on a railroad track at a place where the public have been permitted to cross, may be treated either invitee (under § 256), or as rulings that as rulings that the plaintiff was an the plaintiff was a licensee but the defendant's conduct was wanton (under § 255). In such cases Courts have differed in the rule applied, while agreeing in the result.

(2) Usually the disputed point under § 256 is whether a particular person is to be classed as an invitee or as a licensee; there is no dispute to the tenor of the rule for an

as

invitee.

§ 257. Children. Where such a plaintiff is a child, the rule for [invitees] adult licensees applies [if the danger

1 Holman v. Johnson, No. 694; Bromley v. Wallace, No. 695; Winter v. Henn, No. 698; Finnerty v. Tipper, No. 699; Stockdale v. Onwhyn, No. 700; Leather Cloth Co. v. Amer. L. C. Co., No. 701; Lake Shore & M. S. R. Co. v. Parker, No. 702; Gilmore v. Fuller, No. 703; Dudley v. R. Co., No. 704; Norris v. Litchfield, No. 705; Monroe v. R. Co., No. 706.

2 Blyth v. Topham, No. 708; Brock v. Copeland, No 709; Townsend v. Wathen, No. 710; Deane v. Clayton, No. 711; Ilott v. Wilkes, No. 712; Bird v. Holbrook, No. 713; Palmer v. Gordon, No. 715; Illinois C. R. Co. v. Leiner, No. 716; Scheuerman v. Scharfenberg, No. 717.

3 Barnes v. Ward, No. 714.

4 Lowery v. Walker, No. 718; Chenery v. R. Co., No. 719; Murphy v. R. Co., No. 720.

• Indermaur v. Dames, No. 721; Norris v. Nawn C. Co., No. 722.

ous place or apparatus causing the injury was known by the defendant to be specially attractive to children.]1

Here also the rule in the bracketed clauses could be construed as a special instance of wantonness under § 255.

SUB-TITLE (VI): PLAINTIFF A PERSON REQUIRING DISCIPLINE OR CORRECTION

§ 258. Wife. The relation of hus- with a control which excuses such band to wife does not invest the corporal violence or restraint as may husband with a control which excuses be reasonably necessary for the dishim for corporal violence or restraint cipline or correction of the soldier or done to the wife in the exercise of that seaman while in service; provided the control.2 specific mode of correction or discipline be one customarily used and not forbidden by law.1

§ 259. Child or Pupil. The relation of parent to minor child, and that of master to pupil in a primary or secondary school, invests parent and master with a control which excuses such corporal violence or restraint as may be [in the opinion of parent or master] reasonably necessary for the discipline or correction of the child or pupil.3

§ 260. Sailor or Soldier. The relation of military officer to private soldier, and that of naval officer, public or private, to seaman, invests the officer

Distinction. A defendant who is a public officer has also the Excuse of Official Immunity (post, § 350).

§ 261. Convict. The relation of prison officer to convict invests the officer with a control which excuses such corporal violence or restraint as may be reasonably necessary for the discipline or correction of the convict while in prison; provided the specific mode used be one customarily used and not forbidden by law."

TITLE B: EXCUSES BASED ON PARAMOUNT COMMUNITY INTERESTS, NECESSITATING THE PLAINTIFF'S INDIVIDUAL SACRIFICE

SUB-TITLE (I): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR PROTECTION AGAINST NATURAL CALAMITIES

§ 262. General Principle. The defendant is excused for doing harm to the plaintiff for the purpose of preventing a greater harm impending from some sudden natural calamity; provided

(1) the means used is necessary in fact, and not merely in the defendant's belief; and

(2) the greater harm impending is a harm to the whole community or a substantial part of it, not merely to the defendant or a few other individuals; and

(3) the harm impending is so sudden

in its emergency that no opportunity is given to avert it by measures taken under eminent domain or otherwise.

(a) No such general principle is exactly formulated by the Courts. On the other hand, numerous loose expressions in judicial opinion go far beyond this, but they represent rather the social policy behind the law than

the rule of law itself.

enough to cases of destruction of prop(b) Paragraph (3) applies well erty. But there is no eminent-domain process for persons, e. g., in case of disease; and there the legal proceedings

1 Ryan v. Towar, No. 723; Untermohlen v. Bogg's Run Co., No. 724.

Re Cochrane, No. 726; Queen v. Jackson, No. 728.

Keit's Case, No. 730; Clasen v. Pruhs, No. 732.

The Agincourt, No. 737; Wilkes v. Dinsman, No. 738; Kent, No. 739; Statute, No. 741; Winthrop, No. 742.

5 State v. Roseman, No. 744; Statute, No. 745.

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