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might be guilty of an act, ignorantly and innocently, without knowing its effect or consequences, and without having any reason to anticipate them, and his conduct might in one sense be negligence on his part, yet want of knowledge as to the nature and effect of his acts would relieve him of the charge of contributory negligence.
A man might light a match in a room which, through the negligence of another, was filled with gas. If an explosion occurred, and it appeared that the plaintiff did not know of the presence of gas in the room, and had no reason to suspect it, he could not be charged with contributory negligence.
To constitute contributory negligence, the negligence of the plaintiff must also amount to what is denominated ordinary negligence, which in effect is equivalent to want of ordinary care.
What will or will not amount to ordinary care depends upon the circumstances of each particular case, and no exact definition can be given of it further than to say it is such due care and prudence as would be expected of a reasonably careful and prudent person under similar circumstances. It implies the use of such watchfulness and precaution as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience.
If the danger is remote or slight, the care required to avoid it may be slight. If the danger is imminent, a great degree of care and vigilence should be exercised, because human experience has shown that such would be the natural course of a prudent man.
In estimating the degree of care that is required of the plaintiff under the particular circumstances, he should not be required to anticipate culpable negligence on the part of the defendant. It is only when he sees that the defendant has been negligent that he is required to take such care as will avoid all possible risks to which he may be exposed by it.
The negligence of the plaintiff must also have proximately contributed to the injury. If the injury would have occurred notwith. standing the negligence of the plaintiff he may nevertheless recover, for in that case it cannot be said that his negligence was the proximate cause of the injury.
It is also settled that the plaintiff may recover notwithstanding
his own negligence, if the defendant, after becoming aware of his danger, failed to use ordinary care to avoid injuring him.
It is well settled that if one is injured through the negligence of another while trespassing upon the land or property of the other, he may nevertheless recover for his injuries, unless his trespass exposed him, of itself, to injury, and is of such a nature as to constitute negligence per se.
The doctrine of comparative negligence, as this term is understood by the profession, has prevailed in a modified form in several of the states, although not in form so pronounced as in the state of Illinois. In that state it was held that the plaintiff might recover of the defendant, notwithstanding his negligence, if the negligence of the defendant was gross and that of the plaintiff was slight by comparison with it. An examination of the cases in Illinois will show that in its practical operation this rule has been in most cases productive of as good results as the rule prevailing in other states. It also appears from the cases that in most of them the slight negligence of the plaintiff was of such a character as to be only the remote cause of the injury, and was therefore not contributory negligence at all. In other cases, the negligence of the defendant was of such a character as to amount to what the law denominates wilfullness. In some of the cases the negligence of the plaintiff, which was denominated slight in character by comparison with that of the defendant, was in fact a proximate cause of the injury, and in this class of cases, alone, a result was reached different from that which might have been attained by the application of the rules prevailing in other states.
By the general rule of most of the states on this subject, slight negligence, which implies the use of ordinary care on the part of the plaintiff, is no defense to the action, the want of ordinary care being contributory negligence. By the rule laid down by the Illinois court, if the negligence of the plaintiff amounts to want of ordinary care he cannot recover, the difference being that by the Illinois rule the negligence of the two are compared one with the other, unless the negligence of plaintiff amounts to want of ordinary care. The Illinois cases reached almost the same conclusion as the other courts, by a different process of reasoning, and it is claimed for the rule applied by them that it is less difficult for the jury to reach a proper con
clusion by comparing, under proper instructions from the court, the negligence of the plaintiff with that of the defendant, than to apply the rule in force in other states.
The Illinois court in one case holds that if one is guilty of only slight negligence, he has employed ordinary care, and as the law requires from him nothing more than the use of ordinary care, he may recover from the defendant, if he has been injured by his negligence amounting to the want of ordinary care. That under these circumstances the negligence of the person whose acts showed a want of ordinary care, fall within the two extremes of negligence when compared one with the other.
The same court also holds that if the plaintiff is guilty of want of ordinary care, he cannot recover. The early Illinois cases stated the rule in such manner that in judging of the negligence of the respective parties, it was apparently not required that the negligence of each should be determined independently of the other, or with reference to any fixed standard of care and prudence, but solely with reference to that of the other. Subsequently, when the practical operation of this rule was seen, the court held that if the negligence of the plaintiff amounted to want of ordinary care on his part, he could not recover, thus determining the negligence of the plaintiff by reference to some other standard than that of the negligence of the defendant. When this proposition was settled, the doctrine of comparative negligence, as it had prevailed in the State of Illinois, was practically abolished.
One of the most difficult questions for the court to determine in this connection is, what constitutes in law contributory negligence, and how far and under what circumstances the determination of this question should be left to the jury?
It must be conceded that at some point in the determination of most cases the court has the right and power to declare as an abstract proposition what is contributory negligence, and that in many cases the court may rightfully go further and declare what it is under the facts of the particular case.
It is settled that negligence is a mixed question of law and fact, and as there cannot be any standard for its measurement which is fixed, the difficulty of determining it is at once apparent.
It is generally conceded that where the facts are in dispute and
there is a substantial conflict in the evidence, the court has no power to usurp the prerogative of the jury and determine the truth for itself.
It was formerly held that if there was a mere scintilla of evidence opposed to that establishing the negligence, the court had no right to take the case from the jury and pass upon the weight of the evidence.
The earlier decisions adhere to this rule of practice, and they say it will rarely happen that the evidence is so free from conflict, and the inferences to be drawn from it so clear and conclusive, as to justify the court in directing a non-suit or a verdict.
The courts have widely departed from the former rule on this subject, and have invaded the province of the jury until, at the present time, the plaintiff in the action stands more in dread of the interference of the court than of the verdict of the jury.
The courts seem not only willing but anxious to determine, as matter of law, what facts are established by sufficient evidence, and what inferences can be legitimately and properly drawn from them.
As a matter of judicial propriety if there is room for difference of opinion as to what reasonable inferences should be drawn from the facts, then the question should be left to the jury and they should be permitted to draw the inferences and determine the question for themselves. The judge should excercise the right to determine what the facts have established, what inferences should be drawn from them, only in those cases where the facts are of such a nature that a reasonable and rational mind can draw but one inference from them.
Some of the courts, the New York courts among them, lay down the rule that the court should determine the question of contributory negligence, as a matter of law, and should direct a non-suit, in those cases where the judge would be justified in setting aside a verdict if rendered, as contrary to the evidence, or as against the weight of the evidence. This rule is manifestly incorrect.
Often the judge will properly set aside a verdict when the weight of the evidence is so strong against it that he considers it wrong. He may grant a new trial but it is then usual to permit a second verdict, on the same state of facts, to stand.
Yet it is said that under these circumstances the judge should deprive the jury of its exclusive right to determine the weight of the evidence, and grant a non-suit or direct a verdict. A plainer disregard of the spirit of the common law, or a more palpable invasion of the province of the jury cannot be found in the decisions.
The influence and power of corporations in controlling and shaping the decisions of the courts is very manifest in the practice of the courts with reference to this question.
It is not surprising that they should gradually turn the current of the decisions into channels opened by them.
With able lawyers, persistently and systematically struggling to divert the course of the decisions, to overcome as far as possible the rules of law which hold them to a liability, and at the same time to establish such rules of practice as will seriously impair the rights that they cannot take away, it is but natural that they have accomplished so much. The drops of water that constantly falling upon the rock wear it away at last, suggest both the process and the results of their efforts.
The first expression of the New York rule is found in a case in 9 Barb., at page 9, where the court, constituting itself the guardian of the corporations, declares that it is necessary to adopt that rule because in cases against corporations juries will not be governed by the weight of the evidence, but are influenced by prejudice or compassion for the plaintiff.
It is perhaps unfortunate that judicial sanction was given to the proposition that negligence is ever a question of law, for with the admission of this proposition the province of the court in declaring the law, has overlapped that of the jury in an astonishing degree.
Negligence is the want of ordinary care. This is the standard, and after defining ordinary care as "such care as a person of ordinary prudence and care would exhibit under similar conditions," the courts should go no further. When they undertake to say what a prudent man would do under the circumstances they deal with facts. When they undertake to say whether the acts of the plaintiff reach or fall below this standard, they deal with facts and then apply the law to these facts. They should confine themselves to a statement of the standard of conduct fixed by the law and let the