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line, the property of a single corporation, and that corporation owning every alternate section of land, or its proceeds, in a belt of eighty miles wide, for nearly the whole length of its line—forty sections, or 25,600 acres to the mile— 53,000,000 acres in all, or the proceeds of their sale, at such prices as the corporation may see fit to exact, with towns and cities owned by the corporation or a favored ring of its stockholders scattered along the road, and the great stockholders, those owning nearly all its stock and ruling its affairs, residing in Boston, New York and Philadelphia, and you will have some idea what the Northern Pacific Railroad is to be, and what chances for political promotion any man within the limits of its influence would have should he dare seek to restrict its monopoly, restrain its exactions or otherwise oppose its will."
This language, uttered twenty-six years ago, was spoken by a prominent senator of the United States from one of the largest and most conservative of the American commonwealths, afterwards the author of a law enacted by congress compelling these companies to pay a portion of their indebtedness to the government, and later a candidate for vice president of the United States. At that time it looked like wild prophecy. How near to the truth of history it is at the present time is necessarily a matter of opinion.
During these days of financial distress, of political foreboding and popular discontent, the corporation is a much discussed subject. With many, the word is a synonym of all that is "out of joint” in our system, while others carry the doctrine of "laissez-faire" to the extent of ignoring all possibility of corporate aggression. this juncture, especially, a high sense of duty should actuate the lawyer in dealing with so important a question. On no other subject will the people at large so quickly follow the leadership of the members of the bar, whose technical knowledge and practical experience in such matters must ever make them the judges of the justice and expediency of any measures relating to corporations that may be proposed. An unyielding defender of the rights of property and the sacredness of contracts, the lawyer will also remember that the rights of the many are often endangered by a too ready acquiescence in the skillful arguments of the able advocates of corporate privileges. Only by avoiding both Scylla and Charybdis, and by the exercise of an eternal vigilance, can we adhere to the golden mean on which depends on the one hand the preserva
tion of our free institutions, and on the other the continuation of the wonderful development of the national resources and unparalleled material progress which has made the American union the Hercules of the nations.
BY R. S. HOLT, OF TACOMA.
The subject assigned to me for this paper is not one that can be treated, in a general way, in a very satisfactory manner.
The numerous cases discussing and declaring the doctrine of contributory negligence are interesting and instructive only as they exhibit the application of a few general principles to the varying facts of each case.
The rules making up this doctrine are few and comparatively simple, but in the application of them to the great variety of cases that have arisen, so much conflict of opinion has resulted, that the subject is now complex and intricate.
The leading English case which presents the first authoritative declaration of the doctrine of contributory negligence which is found in the common law decisions, states the general rule so simply and clearly, that one is at once impressed with its justness and correctness. This is the case of Butterfield v. Forester, 11 East. p. 60. In this case the defendant left an obstruction in the road. Plaintiff, who was riding rapidly down the road just at nightfall, but before it was dark, ran against the obstruction and was injured. In this case the court instructed the jury that if a person riding with reasonable and ordinary care, could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding extremely hard and without ordinary care, they should find a verdict for the defendat, which they accordingly did.
The next English case was one that apparently required a statement of the doctrine with a new element entering into it, or perhaps it might be said to present the statement of an exception to the general rule established in the first case. This case is that of Davies v. Mann, 10 Mee & W. 546. In this case the plaintiff tethered his
, donkey near the highway so that it was wandering upon it, and was run down and killed by the servant of the defendant, who was driving at a rapid pace down the highway. In this case the court instructed the jury that although the plaintiff might have been guilty of negligence contributing to the injury, in fastening his donkey where he might be upon the highway, yet if the defendant could, by the use of ordinary care, have avoided inflicting the injury, they must find for the plaintiff.
It is claimed by many of the text writers and judges that this second case has been the cause of much of the conflict of authority that exists on this subject.
It has also been claimed by some writers, that the doctrine of comparative negligence originated in an effort to reconcile the rules laid down in thes two cases, but whether this is true or not, from the time of these cases up to the present time, the doctrine of contributory negligence has been stated, re-stated and modified until the decisions declaring and applying it exhibit an appajently hopeless confusion and conflict. This conflict has arisen partly from a substantial difference of opinion on the same state of facts as to the rule required by right and justice, and also from a failure on the part of the judges to understand alike the rule laid down in the early cases.
The tendency of judges, too common among them, to give such construction to the language used in the authorities as will accomplish what they think is justice in the particular case before them, has produced in this branch of the law the usual results.
In the practical operation of inflexible general rules, many cases will necessarily arise to which it would seem unjust to apply them. Such cases frequently offer to the judges an irresistible temptation to re-state the general rule in such manner as to satisfy the demands of the particular case, and they, unmindful of the necessity of strictly maintaining the rules from which alone certainty in the law can arise, yield to the temptation and sow the seeds of disorder and confusion.
To the mind fond of refinements and metaphysical distinctions, the doctrine of contributory negligence has been a tempting subject, and the terms “slight care," "ordinary care ” and “great
, care,” with the corelative terms, "gross negligence," "ordinary negligence” and “slight negligence,” have offered a field for the exercise of ingenuity in defining these terms and distinguishing
them, but the distinctions between these various terms are now, a rule, unimportant.
In the case of Davies v. Mann, it does not appear whether or not the defendant saw the donkey of the plaintiff before he drove over him, and this case is undoubtedly in conflict with the case of Butterfield v. Forester, unless the defendant did see the donkey of the plaintiff and the danger to which it was exposed, and yet failed to exercise ordinary care in avoiding the injury.
The rule as stated in the case would make the defendant liable, regardless of the question whether he knew of the presence of the donkey or the danger to which it was exposed.
If the defendant, under the circumstances mentioned in this case, did see the donkey of the plaintiff, then it became his duty to exercise ordinary care in avoiding an injury to the property of another, and a failure to exercise such care, under the circumstances, was not excused by the negligence of the plaintiff.
Some of the cases have made this distinction, and have thus construed the case of Davies v. Mann. Others have sought to give full force and effect to the language of the decision, and, as we have stated, have found in it something to justify the doctrine of comparative negligence. It may
be said in this connection that it is doubtful if the negligence of the plaintiff was the proximate cause of the injury.
It does not seem unreasonable to conclude that the negligence of the plaintiff was slight by comparison with that of the defendant, in the sense of it being the more remote cause of the injury.
The doctrine of contributory negligence is stated by Sherman & R. as follows:
“One who is injured by mere negligence of another cannot recover at law, or in equity, any compensation if he, by his own or his agent's ordinary negligence or willful wrong, proximately contributed to produce the injury of which he complains, so that but for his concurring and coöperating fault the injury would not have happened to him, except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”
It will be seen from this statement that the contributory negligence of the plaintiff must have been a fault on his part. One