Alternative Rules for Determining Tort Liability
Coke's Institutes of the Law, No. 2, Series Editors: Amanda J. Owens & Charles K. Rowley
Contributory Negligence
The common law developed a doctrine to deal with cases when the plaintiff was partially responsible for the accident and subsequent injuries. The doctrine of contributory negligence bars a plaintiff from recovery if the plaintiff was negligent and partially responsible for the accident. This doctrine, if consistently applied, can have seemingly harsh results although achieves economic efficiency.
One of the earlier cases discussing contributory negligence is Galena & Chicago Union v. Jacobs, (1858). Jacobs, a four year old, was killed by a locomotive while walking along the train tracks to visit a friend who lived on railroad property. The train tracks were the easiest way to access the railroad employees' houses. The defendant owned the train tracks and the houses. The defendant was not liable for the injury. Permission to cross the tracks was limited to the railroad employees, their families and children, and could not be extended to those unassociated with the railroad. Unauthorized persons used the track at their own peril. This decision and other similar cases are based on the old common law maxim that "no man shall take advantage of his own wrong or negligence."
The English leading case of Butterfield v. Forrester, (1807) established this maxim into the tort law. In this case the defendant repaired his house but left a pole jutting out into the road. The pole was clearly visible for one hundred yards, but the horseman, riding violently, rode into the pole and sustained injuries. Lord Ellenborough said:
"A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of 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 using ordinary care for himself."
Beems v. Chicago, Rock Island & Peoria, (1882) concerned another railroad injury. In this Iowa case a brakeman was trying to uncouple tender from a car while it was moving at an improper and unusual rate of speed. The brakeman was unable to escape fatal injury because his foot became trapped in the railroad tracks. In this instance, the brakeman was not contributorily negligent because the cars were being negligently driven. The brakeman had asked for the speed of the cars to be checked, but his request was ignored and he was killed. Similarly, in LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway, (1913) a Minnesota factory manufactured tow from flax straw. It stored the flax straw seventy-five feet from the train tracks that were adjacent to the property. The straw caught fire when a negligently-operated train emitted sparks and live cinders. The court held that the factory owners had not committed contributory negligence because they were using their own property properly. The basis for this decision was the legal concept of property and property rights. The basic premise was that a landowner should not be limited in his right to use his property because of the activity of a neighbor.
Osborne v. Montgomery, (1931), a Wisconsin case, concerned a boy riding a bicycle. The defendant double parked his car and opened the door just as the bicycle went by. The plaintiff was injured. The defendant was liable for injuring the plaintiff, but the court reduced the amount of damages. In this case, the court commented on changes that were taking place within the legal system. Up to that point, tort law had been viewed as part of the writ system where a number of remedies were applicable to certain situations. However, there was now a movement to see tort cases in a broader context, in terms of the wrongful invasion of legally protected interests and the broader social consequences. The standard for correct conduct was now measured against the proper conduct of an individual under all the circumstances. The standards that the court now applied would guide the great mass of mankind in determining justifiable conduct. Chief Justice Rosenberry commented "In a consideration of this subject it is easy to get lost in a maze of metaphysical distinctions, or perhaps it may better be said that it is difficult not to be so lost." Many legal commentators would argue that, unfortunately, the modern tort system has followed the second route.
The contributory negligence doctrine was modified in United States v. Carroll Towing Co., (1947). In this case a barge, the Anna C, was chartered, filled with cargo, and moored to a pier. Later five more barges were attached to the Anna C, and during some maneuvers the ropes holding the Anna C to the pier came loose. The Anna C drifted into another boat, was holed and sank. The court found that the bargee should have been on board, taking care of the Anna C and so the bargee had committed contributory negligence. However, the harbormaster and deckhand also took responsibility for the barge by checking her ropes. The court took an innovative measure. Up to this point, contributory negligence was a bar to recovery. In this case, the court, under Judge Learned Hand, awarded damages to the plaintiff, but reduced the amount by one-third, representing the proportion of the blame for the accident allocated to the plaintiff.
The Judge used three variables when deciding liability: the probability that the barge would break away (P), the gravity of the injury (L) and the burden of taking adequate precautions (B). The balancing of variables was represented by the following formula: B <PL. This decision was the cornerstone to a new method of deciding cases. It has also become a cornerstone of the law and economics literature.
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