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Abstract
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Efforts toward the elimination of contributory negligence as an absolute defense in personal injury and wrongful death cases have increased of late but much remains to be done in this socially significant area of the law if we are finally to rid ourselves of this baneful and wholly unjustified obstacle to the redress of painful and costly wrong. The moral and legal reasons for the adoption of the alternative rule of comparative negligence have been amply demonstrated in a great many law review articles and other studies by such leading scholars as Dean Roscoe Pound and Professor Villiam L. Prosser. To these voices have been added those of Presiding Justice David W. Peck, of the Appellate Division of the New York Supreme Court, First Department, and other leading jurists who have pointed out the additional practical advantage of a comparative negligence rule in inducing waiver of jury trials and the consequent relief of calendar congestion. Nor have all the bar associations lagged behind in this march. The Association of the Bar of the City of New York has recently adopted a report of its Law Re- form Committee enthusiastically recommending legislation in New York to substitute comparative negligence for the present drastic defense of contributory negligence in that state. Of note, perhaps, in this re- port is the fact that one of its signers is the Hon. Her- bert Brownell, Jr. A review of the origin and gradual development of the contributory negligence defense and its rapid disintegration in the English speaking world may help to clarify the reasons for the new trend and give impetus to legislators and the bar generally to take the necessary steps for the prompt adoption of this much needed reform.
Contributory Negligence-Its Rise and Fall Perhaps the most surprising fact about contributory negligence is its rather recent origin. It came into being almost unobtrusively in the English decision of Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926, in the year 1809. There, plaintiff, riding his horse rapidly through the streets at dusk, ran into a pole which extended into the street in front of defendant's premises. Recovery for plaintiff's injuries was not allowed despite a finding that defendant was negligent in so blocking the thoroughfare, Lord Ellenborough making the rather casual remark that one person being at fault would not dispense with another's using ordinary care. Thus was born the rule of contributory negligence. As Professor Turk has pointed out,' the rule was well received by the English courts, one reason perhaps being that England was then going through the period of rapid industrial growth which our school books have called the industrial revolution. Too liberal an attitude toward tort claims based on negligent acts or omissions of these young and growing industrial entities might have endangered their still precarious existence or jeopardized their profits. The doctrine came to be a welcome means to protect industry against negligence claims. It was fifteen years later that the rule had its American premiere in the Massachusetts case of Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824). Within thirty years the rule had developed so rapidly in this country that a Pennsylvania court was saying that it had been the rule from time immemorial, and it is not likely to be changed in all time to come. (italics ours), Penn. R. Co. v. Aspell, 23 Pa. 147, 149 (1854). Aiding the rapid spread of the rule here was the fact that juries, in the growing industrial communities regarded big corporate defendants, especially railroads, as intruders and began to be plaintiff minded. The courts, seek- ing a means to control or even eliminate the jury in these cases, found a ready weapon in the rule by which they could hold plaintiff guilty of contributory negligence as a matter of law, reiterating over and over again that any negligence by plaintiff which might be said to contribute to causing his injury was fatal to his action.
The doctrine soon came to be extended to the point where any negligence of the plaintiff however slight, barred recovery and, moreover, the requirement was added that plaintiff had the burden of pleading and proving his freedom from negligence when injured. This rather startling feature of the rule has been aptly compared to the situation in a contract case where a plaintiff might be required to plead and prove his freedom from insanity. Gradually this requirement was given up throughout the country... |