Negligence Per Se Case

Negligence Per Se case PH: F: Action to recover damages for the loss of sheep, which the defendant had contracted to carry, which were washed overboard and lost by reason—as we must take it to be truly alleged —of the neglect to comply with a certain order made by the Privy Council, in pursuance of the Contagious Diseases Animal Acts. Under the act, certain orders were made, amongst others, an order by which any ship bringing sheep or cattle from any foreign port to ports in Great Britain is to have the place occupied by such animals divided into pens of certain dimensions, and the floor of such pens furnished with battens or foot-holds. This was to prevent animals from being overcrowded and brought into a condition to guard against the spreading of diseases. *This regulation has been neglected. Plaintiff Alleges: If had been in the pens they were supposed to have the sheep wouldn’t have washed overboard. Q: Whether the loss, which we must assume to have been caused by that neglect, entitles the plaintiffs to maintain an action. H: The damage complained of here is something totally apart from the object of the Act of Parliament, and it is in accordance with all the authorities to say that the action is not maintainable. R: The Act was not intended to protect against this type of damage, but it is directed against the possibility of sheep or cattle being exposed to disease on their way to this country. The purpose of the pens were to keep them healthy. Britain leading textile producer at the time- need wool for clothing. So have very strict rule to make sure sheep are healthy so sick sheep do not destroy the entire industry of the country. Doesn’t succeed because it is not a safety statue, and If the evidence was there it is the wrong Harm When we have negligence per se we are looking at a proximate cause issue and always decided by the judge Is it a safety statute? Right Person, Right Harm (cant use negligence per se) Negligence Analysis Serious Harm- PL Washed overboard (little L) , become sick, ill, and infected (BIG L), B- if have to have them there cost to keep separated b/c of infection the BURDEN IN THIS CASE IS- of putting in pens that are sufficiently built to keep the sheep secure BAD LAWYERING- Plaintiffs lawyer might have relied entirely on negligence per se and did not make a simple negligence argument, but if look at case from our perspective there is an alternative approach the lawyer could have taken. Contributory Fault Butterfield v. Forrester Plaintiff: Defendant: PH: The jury was directed 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 along the street extremely hard, and without ordinary care, they should find a verdict for the defendant. RULED FOR THE DEFENDANT. F: The action was for obstructing a highway by means of which the plaintiff was riding along and was thrown down with his horse and injured. The defendant, for the purpose of making repairs to his house, which was close by the road side at one end of town, had put up a pole across this part of the road, a free passage being left by another branch of street in the same direction. Plaintiff left a public place around the time they were beginning to light candles, but there was enough left to discern the obstruction at 100 yards distance, and the witness said that if the plaintiff had not been riding very hard he could have observed and avoided it. He was riding violently and rode against it and fell with his horse and was hurt. Q: Did the plaintiff’s negligence in riding the horse extremely hard and not using ordinary caution bar his recovery? H: Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. AFFIRMED. R: A party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself to it, if he do not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another’s using ordinary care for himself. Davies v. Mann Plaintiff: Defendant: PH: Judge told the jury that though the act of the plaintiff, in leaving the donkey on the highway fettered as to prevent it from getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant. **If they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff. Defendant’s attorney moved for a new trial based on the plaintiff’s contributory negligence. Plaintiff: Defendant Alleges: contributorily negligent F: The plaintiff fettered the fore feet of a donkey belonging to him turned it into a public highway, and at the time in question the donkey was grazing on the off side of the road and the defendant’s wagon rang against the donkey and knocked it down and with the wheels going over it, it died soon. The donkey was restrained and it was proved that the driver of the wagon was some little distance behind the horses. Q: Was the defendant contributorily negligent in driving carelessly so that they were a cause in the accident? H: Yes. Denied the new trial. Here there is only negligence implied on one party. R: Albinger—there not to be no new trial because the defendant has not denied that the donkey was lawfully on the road, therefore we can assume that even if it were there otherwise the defendant might, as with proper care, have avoided injuring the animal and he did not, he is liable for consequences even though the animal may have been there improperly. Parke—the negligence which it is to precluded a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. Applies the butterflied rule.—Although there might have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong. Addresses the jury instruction—if they were of the opinion that it was caused by the fault of the defendant’s servant in driving too fast or, which is the same thing, at a smartish pace, the mere fact of putting the donkey upon the road would not bar the plaintiff of his action. Still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Other judge’s concur in denying a new trial. Last Clear Chance- This case articulates the doctrine Restatements’ Approaches to the Proximate Cause Issue Restatement (Second) of Torts § 431—What Constitutes Legal Cause The actor’s negligent conduct is a legal cause of harm to another if a) his conduct is a substantial factor in brining about the harm, AND b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. Word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause. § 433—Considerations Important In Determining Whether Negligent Conduct is Substantial Factor in Producing Harm (pg. 315). §29 Limitations on Liability for Tortious Conduct An actor’s liability is limited to those harms that RESULT from the risks that made the actor’s conduct tortious. Comment j—aim of limiting proximate causation. Pg. 377-392 Contributory Fault 1) Contributory Negligence Restatement Third of Torts: defines the plaintiff’s negligence as “conduct that falls below the standard to which the plaintiff should conform.” Comment a states the plaintiff’s conduct is to be judged by the same standard of negligence employed to evaluate a defendant’s conduct. The standard is reasonableness.   The Davies rule is now generally known as the last clear chance doctrine. §479 Last Clear Chance—Helpless Plaintiff A plaintiff who has negligently subjected himself to a risk of harm from the defendan’ts subsequent negligence may recover for harm caused thereby if, immediately preceeding the harm, a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and b) the defendant is negligent in failing to utilize with reasonable care and competence his ten existing opportunity to avoid them when he i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it OR ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then the duty of the plaintiff to exercise. (DAVIES). § 480. Last Clear Chance Inattentive Plaintiff A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant a) knows of the plaintiff’s situation, and b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.   Principal issue involving assumption of the risk today is the extent to which it should constitute a separate defense in negligence actions. The doctrine has no independent legal validity, and that the plaintiff’s conduct is to be gauged by the rules of contributory negligence. This is an asinine doctrine to deal with another asinine doctrine Case designed to prevent total If you were negligent but not the negligent we should hold you for For the final, expects us to know the two versions of last clear chance Who created? The courts designed contributory negligence and once they created it saw situations where would need a defense to come into at time and thus they created the last clear chance doctrine.