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an instruction that the breach of the ordinance is no more than "evidence of negligence" must mean that the jury is justified in pronouncing reasonable the conduct of a defendant when he not only assumed to be wiser than the legislature in his foresight, but when looked at also from the standpoint of hindsight he was wrong and the legislature was right in this particular case. Unless the court were prepared to go to this length it would be bound to say that if the breach of the ordinance did in fact contribute to the injury as a cause the defendant is liable as a matter of law; 14 but this is treating it as "negligence per se," to use the ordinary phraseology, and not merely "evidence of negligence.

The doctrine that a breach of the law is "evidence of negligence" is in truth perplexing and difficult of comprehension. It stands as a sort of compromise midway between two extremer views: (1) that a breach of law cannot be treated as prudent conduct; (2) that the ordinance was passed alio intuitu and does not touch civil relations.15 Either of these views is intelligible; but to invite the jury to consider when and to what extent it is reasonable to break the law is a strange thing.16 The prudent man, it seems, is a law-abiding person within limits, but he does not carry his respect for law to extremes. What tests or considerations

14 This may sometimes be the court's meaning when the phrase "evidence of negligence" is used; in other words, the permission to find for the defendant may mean that the jury would be warranted in concluding, not that the defendant was in the exercise of due care in breaking the law, but that his violation did not in fact contribute as a cause of the injury. If this is the court's meaning, the only criticism to be made is on the unfortunate choice of language to express it.

15 For an argument in support of this view see Mr. Malburn's article on "Violation of Laws Limiting Speed as Negligence," 45 Am. L. Rev. 214. The admission of the ordinance is sometimes justified as bearing on the plaintiff's contributory negligence, since he may have reasonably relied on the defendant's not breaking it. See Connor v. Traction Co., 173 Pa. 602; Bohlen's Cases on Torts, 185, note. But if it may be reasonable for the defendant to break the ordinance (note 13, above), how is the plaintiff justified in assuming that he will not?

16 The argument that a breach of law may be prudent conduct in fact is strongest in the case put by Knowlton, C. J., in Newcomb v. Boston Protective Department, 146 Mass. 596, 600, of a mistake of fact; the sale of milk, for example, reasonably supposed to be pure when the statute makes the seller's belief immaterial. The doctrine, however, that illegality is only "evidence of negligence" is not limited to such cases as this, but is commonly applied to the choice of conduct known to be unlawful, or to ignorance of the law; and whether it was an error of judgment or a mistake of fact which induced the breach of law, one whom it has injured without fault of his own may justly insist that the defendant acted at his peril.

are to guide the jury in determining when he may reasonably become lawless? The proposition that his breach of law is "prima facie evidence" of negligence helps but little, for the very statement implies that the prima facie impropriety may be rebutted. If so, what will rebut it? The doctrine in any form puts the court in an unsuitable attitude toward the legislature. And the fact that the offense is the violation not of a statute but of a municipal ordinance does not materially change the situation. Whether it be a statute or an ordinance, none the less the state has spoken through a legislative body having authority to deal with the situation; a standard of conduct has been fixed in order to prevent a public evil; and the liberty of the individual has been curtailed for the protection of others. When such a prohibition has been violated and the very evil aimed at by the law has been brought about, approval of the wrongdoer's conduct by the court is not consistent with proper respect for another branch of the government. A doctrine which sanctions such approval would hardly continue unless as a practical matter juries could be counted on to nullify it; and it would never have grown up but for the confusion of language already referred to. Its parentage is not hard to trace; it can be affiliated on "negligence" and "duty." The proposition that a municipal ordinance of this sort "does not create duties to individuals" has a plausible sound, and leads easily to the conclusion that breach of such an ordinance cannot be more than "evidence of negligence." 17 It is worth while, therefore, to state the situation in terms of "duty." What precisely was the "duty of care" which existed before the ordinance was passed?

(1) In the first place, it was a "duty" without a corresponding right in anybody.18 When a plaintiff can invoke no legal remedy of any sort, either redressive or preventive, against conduct to which he objects, it cannot be said that a legal right of his has been infringed. Evidently, then, there is no "duty" of care in the same sense that there is a "duty" not to break a contract or not to trespass on another's land. The only protection given by the law to the plaintiff's interest is a right of action if he is harmed by the defendant's negligence. The "duty" means only

17 See, e. g., Phil. & R. R. R. Co. v. Ervin, 89 Pa. 71; Bohlen's Cases on Torts, 183. 18 Terry, Leading Principles of Anglo-American Law, §§ 113-115, 121-125.

that the defendant is negligent at his peril,19 just as he keeps at his peril savage beasts, or (where Fletcher v. Rylands is law) some things stored on his land. It would be consistent to extend the established usage and say that there is a "duty" not to keep a dog which has enjoyed his first bite.

(2) The "duty" attaches only to positive conduct; 20 excepting in a few special relations a man who has made no contract is liable for his acts only, and not for his omissions, no matter how wicked or how harmful these may be. And not only is his liability limited to active conduct, but to dangerous conduct, i. e., conduct which threatens harm to others unless care is used. The "duty of care" attaches only to such conduct; if a prudent man would foresee no injurious consequences from his acts, whether careful or not, then there is no obligation to use care. Danger, reasonably to be foreseen at the time of acting, is the established test of negligence. The proposition, then, that the defendant is under a "duty of care" to certain persons in a certain situation means that as to them he acts at peril if he does dangerous things carelessly.

How does the ordinance change this situation? Before its passage the common-law liability was for negligent conduct; "negligent" meant "dangerous"; the test of danger was the foresight of the prudent man; the jury, within the territory where opinions could reasonably differ, was to say what he would have foreseen; outside this territory the question was for the court. The ordinance narrows the last question." The court can no longer

19 "Duty" is, however, a natural word to use for this purpose: (1) because the test is one of rightness, negligence being conduct that is in some sense morally as well as legally objectionable; (2) because of the characteristic feature of the common law requiring a relation between the parties, so that negligence toward one person is not necessarily negligence toward another. Both these conceptions are aptly enough expressed by the word "duty."

20 This proposition has been somewhat obscured by the much-quoted observation of a distinguished judge (Willes, J., in Grill v. General Iron Screw Collier Co., L. R. I C. P. 600, Smith's Cases on Torts, 2 ed., 204), that "confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use.' When this remark, made with reference to a contract, is wrenched from its context and made to do duty as an exposition of negligence in the law of torts, the subject is not clarified.

21 This is well brought out by Hamersley, J., in Monroe v. Hartford St. Ry. Co., 76 Conn. 201, 2 Wigmore's Cases on Torts, 185; and by Mitchell, J., in Osborne . McMasters, 40 Minn. 103, Smith's Cases on Torts, 2 ed., 95.

submit the question of danger to the jury, because there is no longer room for a reasonable difference of opinion.22 The ordinance has foreclosed the question whether an unhitched horse is a dangerous thing, not because it was passed with any specific reference to civil suits, but because the state, through its legislative organs, has condemned the act of leaving him unhitched by reason of its tendency to bring about just such harm as this. This can only mean that the act is labelled "dangerous." It is an unjust reproach to our old friend the ordinary prudent man to suppose that he would do such a thing in the teeth of the ordinance. It would mean changing his nature, and giving over the very traits which brought him into existence. And when by so doing he caused the very harm which the ordinance aimed to prevent, he would be the first to admit that he should break the ordinance at his peril. The reasons which have led the law to declare that he is negligent at his peril, or keeps a savage animal (or in England a reservoir) at his peril, apply more strongly here.23

An analogy may be found in the law concerning public nuisances. Such an analogy should be scrutinized with care, for "nuisance" is a good word to beg a question with. It is so comprehensive a term, and its content is so heterogeneous, that it scarcely does more than state a legal conclusion that for one or another of widely varying reasons the thing stigmatized as a nuisance violates the rights of others.24 But for our present purposes a wrongful obstruction of the highway makes a fair illustration. Such an obstruction is a legal wrong because it prevents the public from using the highway safely and conveniently. The state may therefore proceed against the offender. An individual, however, has no right of action until he suffers special and peculiar damage; if

22 "In any case the standard is usually defined as that degree of care that men of ordinary care and prudence usually exercise. But when the standard is fixed by law or ordinance, how can one be heard to say that he exercised care in exceeding, or in refraining to comply with, the standard fixed?" Frick, J., in Smith v. Mine & Smelter Supply Co., 32 Utah 21, 30.

23 So far at least as concerns civil suits there is no help in "the old fashioned distinction between mala prohibita and mala in se." Such a discrimination is as unworkable as it is unscientific, and as Sir Frederick Pollock says (Torts, 8 ed., p. 27), it is long since exploded.”

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24 See Terry, Leading Principles of Anglo-American Law, § 434; 2 Cooley on Torts, 3 ed., 1176.

he suffers such damage, he has his private action.25 Thus the defendant, although his act is wrongful as to the public, stands as to individuals only in the position of acting at his peril. This is the same result to which the foregoing argument leads in the case of the present ordinance, and the situation is in all its essentials the same.26 26 The legislature's power to extend and make definite the law of nuisance is beyond question; and the present ordinance amounts to exactly this that a horse in the city streets, unhitched and unattended, is a public nuisance. Thereafter the presence of the unhitched animal is a legal wrong for the same reasons, and in the same way, as any other unlawful obstruction.27 The same analysis fits a multitude of other cases. As society develops, new dangers to the public welfare are constantly perceived, and new prohibitions are enacted by the legislature. They may be regulations of highway traffic, the position of vehicles on the highway,28 the speed at which they may run,29 the conduct of railways at crossings; 30 or building laws passed to lessen fire risks; 31 or restrictions on the use of dangerous articles, such as the carrying of firearms by children,32 or the sale of poisons unlabeled, or handling explosives without specified precautions.34

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25 The requirement that the damage suffered by the plaintiff must have been "special and peculiar" to entitle him to recover has no doubt at times been somewhat rigidly insisted upon; but whether or not it has been too narrowly applied, the principle is none the less clear. See Stetson v. Faxon, 19 Pick. 147; Aldrich v. Wetmore, 52 Minn. 164.

26 This is well brought out by Knowlton, C. J., in his able and important opinion in Bourne v. Whitman, 209 Mass. 155, 167.

27 So in Siemers v. Eisen, 54 Cal. 418, the court said: "The practice of leaving animals, attached to vehicles, unfastened upon our public streets, and thus placing in jeopardy the lives of men, women, and children, should not be tolerated. It is, in fact, condemned by the law, and when damages result therefrom, the owner of such animal should be held to a strict legal accountability." To the same effect is Bott v. Pratt, 33 Minn. 323. For the contrary view, that the violation is only "evidence of negligence," see Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488, Smith's Cases on Torts, 2 ed., p. 94; Fluker v. Ziegele Brewing Co., 201 N. Y. 40.

28 Newcomb v. Boston Protective Dept., 146 Mass. 596, Smith's Cases on Torts, 2 ed., 122.

29 U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, 1 Wigmore's Cases on Torts, 1058. 30 Holman v. Chic. R. Co., 62 Mo. 562, Smith's Cases on Torts, 2 ed., 107.

31 Aldrich v. Howard, 7 R. I. 199, Smith's Cases on Torts, 2 ed., 90. Observe the careful qualification of this case in Grant v. Slater Mill Co., 14 R. I. 380. 32 Horton v. Wylie, 115 Wis. 505.

33 Osborne v. McMasters, 40 Minn. 103, Smith's Cases on Torts, 2 ed., 95. Brannock v. Elmore,114 Mo. 55; Smith v. Mine & Smelter Supply Co.,32 Utah 21.

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