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passing laws impairing the obligations of a from the London Law Journal, undoubtedly contract. The unconstitutional provisions, will be of interest: however, being separable from the main pro

It is fortunate that in England resort is not visions, do not invalidate the entire act.

often had to the common-law rights of challenging The opinion of the court, by Chief Judge jurors, and that unwillingness of jurors to serve is Parker, is lengthy, thorough and carefully not so great that it cannot be overcome by an prepared. It was concurred in by all the occasional fine. We have not even found need for

a law book on the jury laws, and it is to Ireland members of the court except Judge Bartlett, and the United States that we have now to look who read a dissenting opinion, and Judge for the literature and practice as to challenges. Haight, who did not vote. The following In a recent trial in New York of one Molineux important paragraphs are taken from the pre

for murder, challenges and claims of exemption

were so numerous that it took about a month to vailing opinion:

get a full jury, during which period the luckless All franchises come from the State, although the

jurors who were not exempt, or had not been suclegislature may, and often does, delegate to mu

cessfully challenged, had to remain in the court nicipal authorities the right to take final action in awaiting the completion of their dozen. The list the procedure resulting in the creation of a fran- of exemptions in England is sufficiently long, but chise. (Ghee v. Northern Union Gas Co., 158 N. jury trials are less protracted, and, on the whole, Y. 510, 513.) The effect of such action, within

less frequent than in the United States; and our the legislative permission, is to allow the grantee

climate and the existence of a larger leisured class to carry on the business authorized by the fran- permit us to discharge public duties with more chise. All rights not expressly granted by it are,

patience than our enterprising cousins across the as we have seen, reserved. The rights thus reserved include in part the granting of a franchise to another corporation to carry on the same busi

Notes of Cases. ness in the same territory. The power to grant the additional franchise, as well as the first one, the municipality acquires from the legislature, which Negligence --- Invitation by Doorman to Pashas the power to determine whether the rights

sengers at Railroad Station to Cross Track Ahead reserved upon the grant of the first franchise shall of Incoming Train. In Beecher v. Long Island be exercised by a private corporatior or by the

R. R., decided by the New York Court of Apmunicipal corporation. It may well be that com- peals, on January 9, 1900 (MS.), it appeared that petition by the municipality more seriously affects

a railroad company had for many years, at a certhe earning capacity of the private corporation

tain hour every morning, started a train on the than would the competition of another private cor

second track from one of its suburban stations to poration: but the test of legislative power in such

the city, and upon announcement by the doorman case is not whether the agency selected to con

of the train travelers would rush out and across struct and operate competing waterworks is effec

the first to the second track to take it; that on tive or otherwise, but whether the statute providing the morning in question the usual announcement for the agency also contains provisions assisting was made by the doorman, whereupon the plainit to impair or destroy the property of the private tiff's testator, without looking or listening, hurcorporation by other means than competition.

ried out with the crowd towards the second track.

when he was struck and killed by a train which Judge Bartlett urged that the property of had been negligently run in on the first track as the old company should be purchased by he was crossing it. It was held that the question

of the testator's contributory negligence should be private contract or condemned under the

left to the jury; that in such a case it is a question statute before the municipal water company

for the jury to say whether the announcement by was permitted to begin work on its plant. the doorman did not constitute an invitation to and that the legislature possessed no power passengers to pass out and over to the second to authorize a village to organize a water

track, and an assurance that the way was free

from obstructions, and would remain so for a company when its trustees had previously

easonable time to enable them to pass in safety. granted a franchise for a private corporation

The following is the opinion: to do the same thing.

PARKER, Ch. J. The plaintiff's testator having either looked nor listened as the train approached

which caused his death, the query is whether the Apropos of the Molineux trial, the fol

court must say that his negligence contributed to lowing English view of the jury question, I the result or the jury may say that it did not. The

jury were at liberty to find from the evidence be- bined whole, there is a use legitimate, therefore fore it that the defendant had started the train on permissible, for every man's exertions and estate; the south track substantially every morning for but it is unlawful for one to employ either in a many years, and that during all that period of

way to injure those parts of the combined whole time, upon the announcement by the doorman of which belong to others.” (Bishop, Non-Contract " the rapid transit for Brooklyn," the people were Law, sec. 14.) Hence, upon all men is enjoined accustomed to rush out of the station, over the the duty to exercise ordinary care and caution so station platform to the north tracks, then across to conduct themselves and to use their own that them to and upon the platform, in readiness to injury to another shall not result. board the train as soon as it came to a stop; and * There cannot be neglect without the existence that this custom had been so long continued that of a corresponding duty.” (Kennedy v. Chase, such an announcement by the doorman on the 119 Cal. 637, 640; 63 Am. St. Rep. 153, 156.) It morning in question constituted an invitation to is therefore clear that an action based on neglievery passenger there, including the plaintiff's į gence is an appeal to the law's remedies to compel testator, to pass out of the station, across the compensation for injury resulting from breach by station platform, then over the north tracks and to the defendant of a duty by him owed to the the platform of the south track, with the assurance plaintiff. that the way was not only free from obstructions, Now, first, upon what principle rests the rule but would remain so for such a reasonable time as

giving immunity to the invader of another's rights would enable them to pass to the train in safety. | if there be contributory negligence” in any and, therefore, it was for the jury to say whether degree on part of that other? And second, upon in accepting that invitation and proceeding as what principle can the contributory negligence of plaintiff's testator did, without looking and listen

one be imputed to another in fact in nowise guilty ing, and in the manner described by the witnesses, of it? he was nevertheless exercising that reasonable

First. care and caution which the situation demanded.

By a number of courts and some authors, the Cases in which the principle is invoked which lies

rule of contributory negligence is regarded as one at the foundation of this decision are Terry v.

of the law's principal foundation stones and of Jewett (78 N. Y. 338), Brassel v. N. Y. C. & H.

great antiquity. In Railroad v. Aspell (23 Pa. St. R. R. R. (84 N. Y. 241), Palmer v. N. Y. C. &

147; 62 Am. Dec. 323) plaintiff, a passenger carH. R. R. R. (112 N. Y. 234). Oldenburgh v. N.

ried by his station, jumped from the platform of Y. C. & H. R. R. R. (124 N. Y. 414).

his car, although warned to desist, and was seriously hurto in consequence. Said Black, Ch. J.:

It has been a rule of law from time immemorial, IMPUTED CONTRIBUTORY NEGLIGENCE. and it is not likely to be changed in all time to

come, that there can be no recovery for an injury HE reason for any rule is, necessarily, a con- caused by the mutual default of both parties.” trolling factor in determining its validity and This language, delivered in 1854, is quoted by

And hence it is that our lawyers are, Beach (Contributory Negligence, sec. 14); yet it with justice, so copious in their encomiums on the seems that until April 22, 1809, the English speakreason of the law; that they tell us that the law ing world lived in ignorance of this rule so solicitis the perfection of reason; that it always intends ous for the welfare of wrongdoers, for not until to conform thereto and that what it not reason is that date was pronounced the judgment on motion not law.” (Blackstone, Vol. 1, p. 70.)

for new trial in Butterfield v. Forrester (11 East, For * The law consists, not in particular in- 60; 10 Rev. Rep. 433), of which case Beach himstances and precedents, but in the reason of the self says: " This is believed to be the earliest law; for the reason is the life of the law — nay, reported case in the English law in which the the law itself is nothing but reason.” (Broom's general rule as to contributory negligence is disLegal Maxims, p. 153, quoting from Lord Holt, tinctly announced.” (Section 8.) And, Sir Fred. in Ashby v. White, 2 Lord Raym. 957, and from Pollock, in preface to Vol. 10 of the “Revised Co. Litt. 97b.)

Reports,” says: Butterfield v. Forrester is the Hence it is well said that whoso knoweth not first of the modern line of cases on contributory the reason of the law, knoweth not the law.

negligence.” The principle affixing liability to negligent con- The “ rule of law from time immemorial" of the duet injurious to another is readily perceived and learned and able Jeremiah Black has been, when easily understood. Among people living to- he wrote, forty-five years known to men. gether on our crowded earth, there are, neces- Looking into the facts of the Butterfield case sarily, more or less rights and interests of person to ascertain the principle determining it, it is seen and property in a measure depending upon one that the defendant, to enable repairs to be made another.

As individuals and their prop- upon his house, which was close to the road side erty exist, not only separately but also in a com- at one end of the town of Derby, had put up a


its scope.




pole across this part of the road, a free passage redress to a plaintiff whose case shows wrong in being left by another branch or street in the same himself in the very matter whereof he complains. direction; that at eight o'clock of an August even

A familiar expression of it is that one ing when they were just beginning to light coming into court must come with “clean hands." candles, but while there was light enough to dis- And a familiar illustration is that if two persons cern the obstruction at one hundred yards dis- join in a tort and one of them pays the damages, tance, plaintiff leit a drinking house not far from he cannot enforce contribution against the other. the obstruction and, riding at the utmost speed of

To reject the rule of contributory neglihis horse and for that reason observing no gence therefore, would not only reverse a line of obstacle, rode against the pole, fell with his horse decisions extending back to early times, but it and was much hurt in consequence. At the trial, would likewise take away from our legal structure Bayley, J., instructed that is a person riding with a foundation pillar whereon a much larger porreasonable and ordinary care could have seen and tion of it than mere negligence, rests.” In accordavoided the obstruction, while plaintiff was riding ance with this theory Keefe v. Railway (92 Iowa, extremely hard and without ordinary care, the 182) was determined. There, a workman was verdict should be for the defendant. On motion employed where directed in a railroad yard where by plaintiff for a new trial, Bayley, J., said: • The men were constantly at work as everybody knew. plaintiff was proved to be riding as fast as his He faced from an approaching engine which he horse could go, and this through the streets of did not see, but might have seen had his time been Derby. If he had used ordinary care, he must spent watching for reckless men instead of devothave seen the obstruction; so that the accident ing it to his task. Nothing interrupted the view appeared to happen entirely from his own fault.” of the engineer who, on level ground, without Whereupon, Lord Ellenborough, Ch. J., said (of once looking to see where he was going or course, speaking of the record before him): “A whether men were where he knew they were party is not to cast himself upon an obstruction likely to be, ran this man down and killed him. that has been made by the fault of another and That was manslaughter; yet the court said, p. avail himself of it, if he do not himself use com- 186: “ It is not sufficient that means of knowlmon and ordinary caution to be in the right. In edge were available and not used.” No sane man cases of persons riding upon what is considered would argue for the justice of this decision. to be the wrong side of the road, that would not common sense revolts at the charge that this man authorize another purposely to ride against him. committed crime in thus suffering death, and One person being in fault, will not dispense with humanity can only view with horror the sight of another's using ordinary care for himself. Two the widow and children driven from a court of things must concur to support this action, an justice because, as the court proclaimed, they obstruction in the road by the fault of the defend- claimed only through the iniquity of the husband ant and no want of ordinary care to avoid it on and father. the part of the plaintiff.”

“There cannot be neglect without the existence It will be observed that in this case the defend- of a corresponding duty.” That engine driver ant's injuries resulted from highly reprehensible owed the decedent the duty of moving his ponderconduct on his part, i. e., riding at full speed and ous and dangerous agent with due caution with recklessly through the streets of Derby, thus pre- respect to the decedent. Did the decedent owe senting the question whether one so defiantly him the duty to watch against his law forbidden violating his social duty and, in that very act in-course? Suppose it to be property in peril. It does jured, though in consequence of a like breach of not concern the defendant that the plaintiff is careduty in another, would be heard in the courts to less. Such conduct confers no warrant upon ancomplain of that other. Clearly that was the other to injure it. The owner owes duty to guard question the case answered.

it neither to the invader nor to another. We have But the doctrine was soon extended and to seen that the defendant is liable because and only cases to which the formula announced in the But- because he has exerted force beyond the limits terfield case was inapplicable (see remarks of that are his own. To say that the defendant, who Redfield, J., in Robinson v. Cone, 22 Vt. 213), the has confined himself within his own boundaries, courts assuming that the reason in all cases for is a joint tort feasor because he has failed to exerrefusing relief was the wrong of the plaintiff. cise ordinary caution – which would have enabled (See i Hill. Torts, 124 et seq.; Addison on Torts, him to resist or to evade the unlawful force of his vol. 1,' pp. 36 and 609; Shearman and Redfield, aggressor, is to proclaim nonsense as logic. sec. 25 (3d Ed.); Moak's Underhill on Torts, p. But, the law is not always so nice in respect to 280; Thompson on Negligence, pp. 1146-7.) As the claims of wrongdoers. “He who meets his late as 1889. Bishop (sec. 460, Non-Contract Law), assailant with excessive violence is answerable to wrote:

him in damages for the excess.” (Bishop. Non“Obviously, it is a particular instance within the Contract Law, sec. 200.) He is answerable in the wider doctrine that a court of law will not give / very court that turns the negligent plaintiff from

its doors because of his “ unclean hands." In- tive mental state producing negligence and the deed, in such case, each party may have his action; attirmative and active mental condition expressed the assailed, for the assault, the assailant, for the by assent or wilfulness, he nevertheless underexcessive beating. The thug may recover dam- takes (sec. 300) to make the doctrine of contribuages for the beating he intended for the assailed iery negligence rest upon the voluntary causal act whose prowess he underestimated; but the inex- of the plaintiff.” The true ground for the doctrine perienced woman from the country run down by is that, by the interposition of the plaintiff's indea reckless driver is whipped out of court as hav- pendent will, the causal connection between the ing “unclean hands” in that she did not exer- defendant's negligence and the injury is broken." cise the care and caution of an ordinarily prudent The objection that negligence precludes volition is inan. (Woolf v. Beard, 8 C. & P. 373 (Q. B. May answered by the statement that the law imputes 25, 1838); Webb's Pollock, p. 540.) Had Keefe, wilfulness to the act of responsible beings, exonwithout provocation and in wantonness assailed erating from the rule idiots, persons terrified and the engineer, who, carried away by his inflamed those acting in justifiable ignorance. But it is as passions, slew him when death was unnecessary clear as any proposition can be made that the for self-defense, the Iowa court would have seen no unanswerable argument against the maxim applies evil taint in Keefe preventing justice to his widow. with equal force to this. Yet it is at this hour the

The doctrine of these writers is what Sir Fred.rule prevailing in several courts. Pollock calls the “ penal theory" (Pollock on A number of cases supported the rule by chargTorts, p. 570), of which he says: “ It rather sug- ing the defendant only when his negligence had gests as the ground of the doctrine that a man who been the sole cause of the injury - a proposition cioes not take ordinary care for his own safety is · plainly not true." (Shear. & Red. sec. 63, 5th to be in a manner punished for his own careless- Ed.; and see Beach, sec. 14.) ress by disability to sue any one else whose care- Certain other tribunals and some writers hold lessness was concerned in producing the damage.that, while the defendant has done wrong. the real But this view is neither a reasonable one nor sup- reason for denying the plaintiff compensation is ported by modern authority, and it is already dis- the inefficiency of the courts. " It is that the law tinctly rejected by writers of no small weight." cannot measure how muc the damage suffered is So Campbell, 180; Horace Smith, 226; Wharton, attributable to the plaintiff's own fault. If he were sec. 300 et seq.; Beach, secs. 12, 13; Shearman & allowed to recover it might be that he would Redfield, sec. 63 (5th Ed.).

obtain irom the other party compensation for his Recognizing the untenability of the penal theory own misconduct." (Heil v. Glanding, 42 Pa. St. yet determined to maintain the doctrine, it was 493, 499; 82 Am. Dec. 537.) made by some to rest upon the maxim, l'olenti Observe the fear controlling this court of justice non fit injuria." But the assumption that one

least the sufferer from another's conceded wrong negligent willed the destruction of his life or "might obtain from the other party compensation property was even more preposterous than the for his own misconduct." Imagine the elevation in penal theory. Negligence, by its very definition, public esteem the court would get after such annecessarily implies absence of thought and pur- nouncement in the Keese case. In an earlier case pose. In an assemblage other than lawyers seek that court had said (Little Schuylkill Nav. Co. v. ing a pretext for this ruie, no man would be lis- Norton, 24 Pa. St. 465; 64 Am. Dec. 672): “ The tened to while arguing that one at a railroad law has no scales to determine in such crossing, allowing his attention to be diverted by whose wrong doing weighed most in the coma passing parade, and, in consequence, run down pound that occasioned the mischief." Said Sanand killed, consented to his death. In Railway Co., derson, J., in Needham v. Railroad (37 Cal. 409. v. Smith (98 Ind. 42) it was held that one charg- 419): “ The reason of this rule is that, both parties ing negligence could not, under that pleading. being at fault, there can be no apportionment of prove a wilful injury.

the damages, and not that the negligence of the Of this last contention, Wharton (Law of Negli- plaintiff justifies or excuses the negligence of the gence, sec. 132) says: “ Negligence, to state this deiendant, which would seem to be the true reason in other words, necessarily excludes a condition of in the estimation of the New York courts. The mind which is capable either of designing an in-law does not justify or excuse the negligence oi jury to another or of agreeing that an injury the defendant. It would, notwithstanding the should be received from another. To contributory negligence of the plaintiff, hold the defendant renegligence, therefore, the maxim l'olenti non fit sponsible if it could. It merely allows him to injuria' does not apply, because a negligent per- escape judgment because, from the nature of the son exercises no will at all. The moment he wills case, it is unable to ascertain what share of the to do the injury, or to combine in doing the damages is due to his negligence. He is both injuria, then he ceases to be negligent, and the legally and morally to blame, but there is no case becomes one of malice or fraud. Recogniz-standard by which the law can measure the coning thus clearly the difference between the nega- sequences of his fault, and therefore only he is



aliowed to go free oi judgment. The impossibility 58, 89. · And this suggests that if, seeking for a ni ascertaining in what degree his negligence con- reason, we were not particular whether or not we

ributed to the injury being, then, the sole ground found the true one, we might attribute the docof his exemption from liability, it jollows that trine, and with much plausibility, to the limitations such exemption cannot be allowed where such irom the procedure explained ante." (Bishop, impossibility does not exist; or, in other words, Non-Contract Law, p. 203.) the general rule that a plaintiff who is himseli at Bui the most eminent authorities advise that iault cannot recover is limited by the reason upon *the rule is not merely a logical deduction, but is which it is founded." And Shear. & Red. (sec. 63. Founded in public utility. The ultimate justifica5th Ed.) say: " The fact that courts of admiralty tion of the rule is in reasons of policy, viz., the have always ordered compensation in cases of desire to prevent accidents by inducing each contributory negligence, apportioning the dam- member of the community to act up to the standages as they deemed to be just under the circum-ard oi due care set by the law. If he does not he is stances, and that this course has been universally deprived of the assistance of the law." (Pollock acquiesced in and has given general satisfaction, on Torts, p. 570; so Beach, secs. 12, 13.) It was a affords strong proof that the stern rule of com- sound public policy that left Keefe's children and mon law is not founded on any immutable prin- widow without bread that they and others "might ciple, but is simply the result of judicial be induced to act up to the standard of due care." unwillingness to trust juries to apportion damages | To the unlearned it would seem that the engine between parties in fault, a task for which very driver needed education at least as much, and that iew juries are competent. We think that the Su-compelling compensation would induce due care preme Court of California has stated the exact from those reckless of it quite as effectually as truth in holding that the reason of the rule is was done by exonerating the reckless wrongdoer. simply the impossibility in most cases of equitably apportioning the damages between the parties in

SECOND. a common-law action, and that where this impossibility does not exist the rule itself does not This rule, the principle of which it is so diffi

The American and English Enc. ofcult to ascertain, the courts have undertaken to Law" (2d Ed. vol. 7. p. 372) announces this as, of extend by the doctrine of imputed negligence. course, the reason for the rule, and the only reason For what sound reason? for it.

Let us not lose sight of the sole ground upon That the rule rests upon nu immutable prin- which the defendant is charged. " The rule is ciple nor, indeed, upon any in some of its ex- that, in order to maintain an action for a tort, the tensions may be conceded, but the impossibility act or omission complained of must be legally to find a just award for the injury by the defendant u rongiul: it must prejudicially affect another in inflicted is obviously not true. We have seen that some legal right. The fact that it has or will when the plaintiff is hurt in outrageous and defiant result to another's injury and damage is not breach of another's rights and of his own social enough." (Wood's note. vol. 1, p. 5; Addison on duty, the law finds no difficulty in producing Torts.) “scales to determine” the weight of each wrong Thurston v. Hancock (12 Mass. 220) illustrates doer's act“ in the compound that occasioned the this. There plaintiff and defendant were adjoining mischief." Then,“ in cases where the defendant's lot owners. On his lot the plaintiff built a house negligence caused a disease, aggravated a prior extending near to the common line, taking predisease, or led in immediate sequence to disease caution to sink the foundation to an unusual depth. the defendant must respond in damages for such Thereafter defendant excavated his lot to the depth part of the diseased condition as his negligence of thirty-two feet, by reason whereof the walls of caused.” (Am, and Eng. Enc, of Law, 2d Ed., vol. piaintiff's house cracked and he had to take it 7, p. 388.) When he was guilty of no negligence down.

not claimed that the defendant contributing to the injury, negligence upon his made the excavation with view to

or impart after the injury, by which it is aggravated. provement of the lot by building or otherwise. will not prevent him from recovering damages for The motive was immaterial, for he had the right so much of the injury as the original wrongdoer to excavate upon his own land so long as he did caused by his negligence. In such cases it seems not disturb the soil of the neighbor. Defendant's that the damages may be apportioned or allowance land owed the duty of support to that adjoining made by the jury for that portion of the injury to the extent only of preserving the soil intact. due to the plaintiff's fault." (Id., pp. 387–388.) | but not to support the artificial substitute for the Professions of judicial imbecility after statements soil. i. e.. the building. But much less. We are like that resemble the talk of a mad-house. told, is required to defeat a plaintiff than to charge " Why, in such a case, the damages should not be a defendant. The former must not only discharge apportioned. I do not profess to understand,” said to the latter all legal duties, but must not in the the learned Lindley, L. J., in The Bernina, 12 P. D. / slightest degree fall below the standard of care

It was


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