that it will be performed.18 Of course, if the plaintiff's own act is the cause of the defendant's violation of statute, there can be no recovery. 14 91. Abolition of Defense by Statute.-In some jurisdictions the defense of contributory negligence as developed under the common law has been abrogated to a limited extent by statute,15 the most general enactments to this effect being the workmen's compensation acts that have been adopted in most of the states.16 Such laws have not met with marked favor on the part of the courts, though for the most part they have been held valid.17 While holding that the defense. of contributory negligence may be abolished by legislative action, it usually has been insisted that a statute in order to have this effect must declare the abolition in express terms. Thus, a mere declaration that employers or a certain class of employers shall be liable. for defects in appliances, machinery, etc., is held not to destroy the defense in question.18 It can hardly be doubted that, as a means of attaining justice or an approximation thereof, the doctrine of comparative negligence 19 is to be ranked superior to the principle of contributory negligence; and, convinced of the truth of this observation, the legislatures of a number of states have provided that in actions by employees for injuries the liability of the employer shall be determined in accordance with the former doctrine. Under these enactments the employee is permitted to recover in all cases, his own negligence having the effect not completely to bar a recovery but merely to diminish damages. 20 Meaning and Elements of Contributory Negligence 92. Theory of Law; Nature and Effect of Plea of Contributory Negligence. Contributory negligence, it has been said by the courts, is "the neglect of the duty imposed upon all men to observe ordinary In common law theory and terminology contributory negligence implies negligence on the part of the defendant, and can 13. See infra, par. 108. 14. Cook v. Fogarty, 103 Ia. 500, 72 N. W. 677, 39 L.R.A. 488. 15. See MASTER AND SERVANT, vol. 18, p. 638. 16. See WORKMEN'S COMPENSATION ACTS. 17. Grissell v. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 A. S. R. 138. 18. See MASTER AND SERVANT, vol. 18, p. 638. 19. See infra, par. 119, 120. 20. See MASTER AND SERVANT, vol. 18, p. 638. 1. Fish v. Chicago, etc., R. Co., 263 Mo. 106, 172 S. W. 340, Ann. Cas. 1916B 147. To like effect see Cline v. Crescent City R. Co., 43 La. Ann. 327, 9 So. 122, 26 A. S. R. 187; BeiSiegel v. New York Cent. R. Co., 34 N. Y. 622, 90 Am. Dec. 741; Grant v. Keystone Lumber Co., 119 Wis. 229, 96 N. W. 535, 100 A. S. R. 883. 2. Watkinds v. Southern Pac. R. Co., 38 Fed. 711, 4 L.R.A. 239; Linforth v. San Francisco Gas, etc., Co., 156 Cal. 58, 103 Pac. 320, 19 Ann. Cas. 1230 and note. exist only as a co-ordinate or counterpart. The plea of contributory negligence is held, upon this theory, to be one in confession and avoidance. When the defendant has exercised every possible care, and caution, negligence fails to exist, and an injury resulting, it must occur only by the negligence of the plaintiff, which cannot be considered contributory but original negligence. But whether the defendant by pleading contributory negligence is to be deemed to have shifted the burden of proof is a point upon which the opinions sharply conflict. Some assert that the plea admits negligence on the part of the defendant-or at least that this is the case when the plea stands alone-whereas others hold to the contrary. In the latter view the defense of contributory negligence is not inconsistent with a denial of negligence on the part of the defendant. What the defendant says by such a plea, coupled with a general denial, is that he is not guilty of the negligence charged; but that, if he is, then that the plaintiff, by his or her own negligence, contributed to the resulting injury, and for that reason cannot recover.8 93. Action or Nonaction Accompanied by Knowledge of Consequences. The true foundation of liability is knowledge-or what is deemed in law to be the same thing: opportunity by the exercise of reasonable diligence to acquire knowledge of the peril which subsequently results in injury. Fault on the part of the defendant is to be found in action or nonaction accompanied by knowledge actual or implied of the probable results of his conduct; and, likewise, fault on the part of the plaintiff is to be determined by the same test.9 In more familiar form the proposition is as follows: liability is established when it is shown that the peril, being of the defendant's . creation, was known to the defendant but not to the person injured; 10 and no liability is predicable of the injury when it appears that the injured person's knowledge of the danger surpassed or equaled that of the defendant. Or, as it generally is expressed, a plaintiff will not be held to have been guilty of contributory negligence if it appears that he had no knowledge of the danger,12 and conversely he will 3. Martin v. Highland Park Mfg. Co., 128 N. C. 264, 38 S. E. 876, 83 A. S. R. 671. 4. Watkinds v. Southern Pac. R. Co., 38 Fed. 711, 4 L.R.A. 239; Linforth v. San Francisco Gas, etc., Co., 156 Cal. 58, 103 Pac. 320, 19 Ann. Cas. 1230 and note; Buechner v. New Orleans, 112 La. 599, 36 So. 603, 104 A. S. R. 455, 66 L.R.A. 334. 5. Martin v. Highland Park Mfg. Co., 128 N. C. 264, 38 S. E. 876, 83 A. S. R. 671. 6. See infra, par. 162. 7. Buechner v. New Orleans, 112 La. 599, 36 So. 603, 104 A. S. R. 455, 66 L.R.A. 334. 8. Jackson v. Natchez, etc., R. Co.. 114 La. 981, 38 So. 701, 108 A. S. R. 366, 70 L.R.A. 294. 9. See supra, par. 8. 11. Borden v. Daisy Roller Mill Co.. 98 Wis. 407, 74 N. W. 91, 67 A. S. R. 816. See supra, par. 10. 12. Standard Oil Co. v. Tierney, 92 Ky. 367, 17 S. W. 1025, 36 A. S. R. 595, 14 L.R.A. 677; Henderson v. be deemed to have been guilty if it is shown that he knew of the peril and might have avoided it by the exercise of ordinary care. 13 This element of knowledge, it should be noted, is the foundation of the maxim volenti non fit injuria.14 If the plaintiff testifies that he was ignorant of the peril which caused the injury complained of, a verdict in his favor will not be set aside on the ground that there is no evidence of the exercise of care.15 94. Specific Cases Holding Knowledge to Be Basis of Contributory Negligence. The proposition that contributory negligence consists in knowledge of the probable consequences of a person's acts or omissions finds many plain illustrations in the cases. Thus it has been said that where there is danger, and the peril is known, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and therefore does so at his own risk.16 And if the danger is known, and can be easily avoided, a peril voluntarily and unnecessarily assumed may constitute such contributory negligence as would preclude a recovery.17 Likewise, it is said that a plaintiff is negligent who, with a full knowledge of the location, voluntarily places himself upon a railroad track, at a place where there is no crossing, and which was a known point of danger.18 The converse of the proposition established by these rulings also has frequently found expression in the opinions. It is said that when the defense of contributory negligence is urged as ground O'Haloran, 114 Ky. 186, 70 S. W. 662, 102 A. S. R. 279, 59 L.R.A. 718; Allen v. Boston, 159 Mass. 324, 34 N. E. 519, 38 A. S. R. 423; Griffin v. United Electric Light Co., 164 Mass. 492, 41 N. E. 675, 49 A. S. R. 477, 32 L.R.A. 400; Murray v. Boston, etc., R. Co., 72 N. H. 32, 54 Atl. 289, 101 A. S. R. 660, 61 L.R.A. 495; Hobbs v. George W. Blanchard, etc., Co., 74 N. H. 116, 65 Atl. 382, 124 A. S. R. 944. 13. Indianapolis, etc., R. Co. v. Watson, 114 Ind. 20, 14 N. E. 721, 15 N. E. 824, 5 A. S. R. 578; Potts v. Shreveport Belt R. Co., 110 La. 1, 34 So. 103, 98 A. S. R. 452; Bahel v. Manning, 112 Mich. 24, 70 N. W. 327, 67 A. S. R. 381, 36 L.R.A. 523; Johnston v. New Omaha Thomson-Houston Electric Light Co., 78 Neb. 24, 110 N. W. 711, 113 N. W. 526, 17 L.R.A. (N.S.) 435; Pittsburgh, etc., R. Co. v. Collins, 87 Pa. St. 405, 30 Am. Rep. 371; Schwenk v. Kehler, 122 Pa. St. 67, 15 Atl. 694, 9 A. S. R. 70; Cahill v. Layton, 57 Wis. 600, 16 N. W. 1, 46 Am. Rep. 46; Borden v. Daisy Roller Mill Co., 98 Wis. 407, 74 N. W. 91, 67 14. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 A. S. R. 537; Taylor v. Home Telephone Co., 163 Mich. 458, 128 N. W. 728, 31 L.R.A. (N.S.) 385. 15. Galveston v. Hemmis, 72 Tex. 558, 11 S. W. 29, 13 A. S. R. 828. 16. Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, 2 A. S. R. 164. 17. Harris v. Clinton Tp., 64 Mich. 447, 31 N. W. 425, 8 A. S. R. 842, quoted in Taylor v. Home Telephone Co., 163 Mich. 458, 128 N. W. 728, 31 L.R.A. (N.S.) 385. See also Bahel v. Manning, 112 Mich. 24, 70 N. W. 327, 67 A. S. R. 381, 36 L.R.A. 523; Borden v. Daisy Roller Mill Co., 98 Wis. 407, 74 N. W. 91, 67 A. S. R. 816; Ray v. Stuckey, 113 Wis. 77, 88 N. W. 900, 90 A. S. R. 844. 18. Pittsburgh, etc., R. Co. v. Collins, 87 Pa. St. 405, 30 Am. Rep. 371. for a nonsuit "it must appear that reasonable men, acting as the triers of the fact, would find, without any reasonable probability of differing in their views, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men under the same circumstances would readily acquire such knowledge and appreciation." 19 And so it has been held that "a woman is not negligent in failing to see the danger of her child who is playing in the yard near a window at which she is sitting, because of the possible giving way of the cover of a concealed cesspool, of the existence of which she is ignorant." 20 And where the point involved was whether a lot owner had been negligent in not constructing a cellar wall so as to keep out sewage, the court said that due care on his part did not require him to guard against a defective construction of the sewer, the existence of which he had no reason to suspect.1 95. Meaning of Expression "Assumption of Risk."-As the practical equivalent of the term "contributory negligence" one frequently finds in the cases the expression "assumption of risk." It is said that one who knows and appreciates a danger "assumes the risk" thereof. This phraseology has not been adopted very generally, however, in disposing of cases other than those between employer and employee; indeed, it frequently is asserted that the doctrine of assumption of risk has no application except between master and servant.4 96. What Constitutes Knowledge; Forgetfulness.-The plaintiff's knowledge of the peril is to be established like any other fact, and ordinarily is for the jury's determination. The most convincing proof, perhaps, consists in evidence showing that he was warned of the danger; but in a great majority of cases knowledge must rest 19. Stevens v. United Gas, etc., Co., 73 N. H. 159, 60 Atl. 848, 70 L.R.A. 119, quoted with approval in Gentzkow v. Portland R. Co., 54 Ore. 114, 102 Pac. 614, 135 A. S. R. 821. 20. Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L.R.A. (N.S.) 917. 1. Allen v. Boston, 159 Mass. 324, 34 N. E. 519, 38 A. S. R. 423. 2. Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 11 So. 51, 32 A. S. R. 348, 16 L.R.A. 43; Allen v. Johnston, 76 Mich. 31, 42 N. W. 1075, 4 L.R.A. 734. As to the origin of the doctrine and its relation to contributory negligence, see MASTER AND SERVANT, vol. 18, pp. 671-675. 3. Indianapolis, etc., R. Co. v. Watson, 114 Ind. 20, 14 N. E. 721, 15 N. E. 824, 5 A. S. R. 578 Allen v. John ston, 76 Mich. 31, 42 N. W. 1075, 4 L.R.A. 734; Frohlich v. Pennsylvania Co., 138 Mich. 116, 101 N. W. 223, 110 A. S. R. 310, 4 Ann. Cas. 1140; Hotchkin v. Erdrich, 214 Pa. St. 460, 63 Atl. 1035, 10 L.R.A. (N.S.) 506. 4. Conrad v. Springfield Consol. R. Co., 240 Ill. 12, 88 N. E. 180, 130 A. S. R. 251; Dubiver v. City R. Co., 44 Ore. 227, 74 Pac. 915, 75 Pac. 693, 1 Ann. Cas. 889. 5. Giraudi v. Electric Imp. Co., 107 Cal. 120, 40 Pac. 108, 48 A. S. R. 114, 28 L.R.A. 596; Williams v. Sleepy Hollow Min. Co., 37 Colo. 62, 86 Pac. 337, 11 Ann. Cas. 111, 7 L.R.A. (N.S.) 1170; Gentzkow v. Portland R. Co., 54 Ore. 114, 102 Pac. 614, 135 A. S. R. 821. See infra, par. 140, 141. 6. Note: Ann. Cas. 1913D 36. See supra, par. 87, 92; infra, par. 103. in the imputation arising from the fact that the peril was patent or obvious, or the fact that the plaintiff was familiar with the offending place or appliance. He is held to have had knowledge of all such perils as were obvious or discoverable by reasonable observation and the use of the senses, provided the circumstances were such as to fix knowledge in his mind, and not to justify forgetfulness. While as a rule a failure to avoid a known peril is in no wise excused by the fact that the plaintiff "did not think" or "forgot," 9 yet there are exceptions: where the plaintiff was confronted by an emergency,10 or acted to save life or property,11 or had his attention diverted.12 For example, it is true as a general rule that where a pedestrian, while proceeding along the sidewalk of a municipality sustains an injury by reason of a defect or obstruction which he might have observed if he had looked, the fact that his attention was diverted. from the surface of the street at the moment when he encountered the defect does not establish negligence on his part as a matter of law. Whether he was negligent is in such case a question for the jury 13 But the conclusion has been reached by the authorities that momentary forgetfulness of a danger, which forgetfulness is not induced by some sudden and adequate disturbing cause, is itself as matter of law contributory negligence barring a recovery.14 97. Appreciation of Peril as Distinguished from Knowledge of Source of Danger. From proof that the plaintiff had knowledge, as of a physical fact, of the place or appliance by means of which he sustained the injury complained of, it does not necessarily follow that he must have appreciated the danger to which he was exposed 7. See infra, par. 99. 8. Giraudi v. Electric Imp. Co., 107 Cal. 120, 40 Pac. 108, 48 A. S. R. 114, 28 L.R.A. 596; Jacobson v. Oakland Meat, etc., Co., 161 Cal. 425, 119 Pac. 653, Ann. Cas. 1913B 1194 and note; Dewire v. Bailey, 131 Mass. 169, 41 Am. Rep. 219; Kelly v. Blackstone, 147 Mass. 448, 18 N. E. 217, 90 A. S. R. 730; McQuillan v. Seattle, 10 Wash. 464, 38 Pac. 1119, 45 A. S. R. 799; Harris v. Bremerton, 85 Wash. 64, 147 Pac. 638, Ann. Cas. 1916C 160; Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40, 57 A. S. R. 895. Notes: 39 L.R.A.(N.S.) 896; Ann. Cas. 1913D 36. 9. Jacobson v. Oakland Meat, etc., Co., 161 Cal. 425, 119 Pac. 653, Ann. Cas. 1913B 1191 and note; Reynolds v. Los Angeles Gas, etc., Co., 162 Cal. 327, 122 Pac. 962, Ann. Cas. 1913D 34, 39 L.R.A. (N.S.) 896 and note; Mayor v. Cain, 128 Tenn. 250, 159 S. W. 1084, Note: Ann. Cas. 1913D 39. 12. Choctaw, etc., R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L.R.A. (N. S.) 837; Kelly v. Blackstone, 147 Mass. 448, 18 N. E. 217, 9 A. S. R. 730. Note: Ann. Cas. 1913B 1198. 13. Merchants Ice, etc., Co. v. Bargholt, 129 Ky. 60, 110 S. W. 364, 16 Ann. Cas. 965 and note. 14. Reynolds v. Los Angeles Gas etc., Co., 162 Cal. 327, 122 Pac. 962, Ann. Cas. 1913D 34, 39 L.R.A. (N.S.) 896. See also Knoxville v. Cain, 128 Tenn. 250, 159 S. W. 1084, Ann. Cas. 1915B 762, 48 L.R.A. (N.S.) 628. |