longer so connected because the same party who sues is legally the author of one of those assisting acts already seen to be sufficient links in the chain of causation, at most one can say merely that they are deemed or presumed to break the chain of causation. But, as in all cases when a presumption demands that two things shall be considered the same, which reason tells us may well be quite different, we are driven back to the final inquiry — what rule of remedial law — what principle of public policy or what fundamental conception of justice common to all jurisprudence or peculiar to our common law requires the arbitrary legal equivalence between two things not in their nature necessarily similar, or even, as in this case, fundamentally opposite to one another? 1

No conception of legal cause which has ever been applied to ascertain legal liability in general will account for the doctrine of contributory negligence in all of its phases. While the rule in Vicars v. Wilcocks might account for it where the negligences are successive, it has no application where they are concurrent. The modern view that legal causation depends on what is actually probable and natural, and that the mere wrongfulness of an existing act is per se immaterial, leaves even the case of successive negligences without support in the now existing principles of legal proximity of cause and effect. To ascribe the defense of contributory negligence to a principle which never fully accounted for it, and which now fails to account for it at all, only serves to cloud the subject of legal causation, already replete with difficulties, by introducing a new and alien conception, without aiding in ascertaining the final

1 Of course it is possible to account for the defense of contributory negligence, or rather to conceal the fact that there is anything to account for, by using the term legal causation in a sense which it is capable of bearing without any palpable distortion of language, as indicating those results for which the originator of the alleged cause is responsible legally, the argument in favor of such a reasoning has some apparent force. How can it be said that any result is the legal consequence of an act which the law deems so far removed, whether by reason of its lack of actual proximity or because of any principle limiting legal liability for actually proximate results, that it refuses to recognize it as a basis of legal claim or redress against the author of the alleged cause? Obviously, however, this is merely to state in terms of apparent causation the limits of legal liability. It does not in any way explain why liability is so limited. It is possible in this way to state the whole of the substantive law in terms of causation, as Professor Greenleaf in his second volume of his work on Evidence stated it in terms of evidence. One could as well account for the inability of an alien enemy to recover for a harm specifically intended, and directly caused, by saying that the act was not the legal cause of his injury, or say that a judge's abuse of his judicial power in maliciously committing an attorney did not legally cause his resulting imprisonment.

basis upon which rests the inability of a plaintiff, whose harm has been caused in part by his own misconduct, to recover from his fellow delinquent.

Clearly the defense of contributory negligence cannot be ascribed to the rule which denies contribution or indemnity between joint tortfeasors. Contribution and indemnity are concerned with joint wrongdoers: first, those who associate themselves to do the particular wrongful act, or from some prior association are as a group under some joint liability;' second, those who are by reason of some rule of remedial legal policy held jointly liable for the conduct of the actual wrongdoer, or the condition of the injurious thing; third, those who are under successive duties in regard to the same dangerous condition; 3 or, fourth, where the plaintiff relying on the defendant's apparent right to deal with property so acts by his authority as to incur liability to the true owner.1 It has never been applied to cases of concurrent but independent wrongs to the combined effect of which the harm is due and where the only point of contact is in the combination of their effect in bringing about the final catastrophe.5

2

Even in their application to these widely different fields the development of the two principles has been entirely separate; the limitations and exceptions to them not merely distinct and different, but often the very opposite to one another.

I. Contribution, though refused between persons actually themselves the wrongdoers, is allowed where they are not personally

1 Peck v. Ellis, 1 Johns. Ch. (N. Y.) 131; Nickerson v. Wheeler, 118 Mass. 295 (a failure to file certificate, a duty placed on directors as a group).

2 Two partners owning a stagecoach - one was sued by a passenger injured by negligence of a driver - having paid judgment, he was held entitled to contribution from his partner. Worley v. Batte, 2 C. & P. 417; Horbach v. Elder, 18 Pa. St. 33; Bailey v. Bussing, 28 Conn. 455; Clarion Co. v. Armstrong Co., 66 Pa. St. 218 (bridge reparable by two counties).

3 See Washington Gas Light Co. v. Dist. of Columbia, 161 U. S. 316, and cases cited therein. The most usual case of this sort is where a city is forced to pay damages for injuries caused by a defect in the highway created by a lot-owner.

4 See similar principle, Sheffield v. Barclay, [1905] A. C. 392.

5 Save in the case of Nashua Iron Co. v. Worcester R. R., 62 N. H. 159, wherein the rule of last clear chance was applied to give indemnity against the last responsible actor in favor of the antecedent wrongdoer. While the case contains a very valuable discussion of the application of the rule of last clear chance, it would seem to be a sheer anomaly in regard to its ruling as to the right to indemnity. All the cases which it cites for the broad rule that indemnity is allowed save where the party seeking redress was a conscious wrongdoer, fall within far narrower exceptions to the rule denying indemnity between joint tortfeasors.

delinquent but are both liable for the acts of the actual wrongdoer by virtue of some relation in which they stand to him. Indemnity is given to the person morally innocent but legally liable, as against the actual wrongdoer whose misconduct has brought the liability upon him. On the other hand, a plaintiff is as much barred by his servant's negligence as his own, though the defendant is personally in fault. So, while the rules of contribution and indemnity regard as vital the difference between actual wrong and legal liability, contributory negligence regards them as immaterial.

2. In ascertaining the right to indemnity the law distinguishes between primary and secondary duties, between active misconduct. and mere omission of duties of protection, between the creator of the dangerous condition, and him who should have protected the injured party from it. In contributory negligence the plaintiff is as completely barred from recovery where he has failed to take selfprotective measures against a danger created by the defendant, as where he has himself created the danger and the defendant has failed to protect him therefrom. In fact, the last clear chance doctrine enforces the very opposite idea. It is the sequence in time of the successive negligences which is vital. He whose negligence is the final decisive cause of the harm must answer for it; while in regard to the right to indemnity, the actor, the creator, is liable over to him whose neglect of his positive duty is the final efficient cause, who had the last clear chance, if he had done what he was legally bound to do, to avert the harm.1

It seems equally undoubted that the defense of contributory negligence is not a mere variation nor an application to the specific facts of the rule that one who voluntarily encounters a known risk can blame no one but himself for the ensuing harm. In the earlier cases there was little, if any, attempt made to distinguish between. voluntary assumption of risk and contributory negligence. Whether

1 See Union Stock Yards Co. v. C., B. & A. R. R., 196 U. S. 217. The case of Nashua Iron Works v. R. R., 62 N. H. 159, must be regarded as anomalous. Even if the broad principle there laid down, that indemnity is to be allowed whenever the wrongs are not consciously or wilfully done, is admitted, this only marks the more strongly the essential dissimilarity to contributory negligence - when, of course, no such distinction is drawn - nor is any case cited to show that not merely contribution, but full indemnity is to be enforced, as between joint tortfeasors technically guilty though morally innocent, against the last responsible agent. In Palmer v. Wick, etc., S. S. Co., [1894] A. C. 318, there is an intimation that the Law Lords wished that the English law recognized, as the Scotch law does, a right to contribution for "quasi delicts," but even there the recovery was expressly based on the fact that the original judgment which plaintiff paid was a joint judgment against both him and the defendant.

the risk, though perceived, was voluntarily encountered, whether it was, though not seen, obvious if the plaintiff had used his senses, or capable of being discovered had he been properly on the alert, or whether he had, after knowledge of his danger, failed to exercise that care which even then would have sufficed to avert the harm, he was equally barred. It mattered little whether his conduct was regarded as an assumption of risk or as contributory negligence.1 Nevertheless there arose from time to time cases where the two had to be distinguished, because, while contributory negligence was no bar, the voluntary assumption of a known risk did prevent recovery. Early cases are therefore not entirely wanting which recognize. the inherent difference between the two.2

Of late years, however, there has come into existence a constantly increasing class of cases where, for various reasons, a risk perfectly recognized is held not to be assumed by one placing himself within reach of it, but where none the less he may be barred if he is guilty of contributory negligence. The distinction between voluntary

1 This same confusion of thought still persists in many classes of cases. Many conscious intentional acts obviously exposing the actor to perfectly recognizable risks are still constantly spoken of as acts of contributory negligence. There is, however, a growing tendency to more accurate classification. See Burns v. R. R., 183 Mass. 96; McDonough v. R. R., 191 Mass. 509; Harding v. R. R., 217 Pa. St. 69, where the act of standing on the platform of a trolley car is treated as an exposure to a known danger incident to the position; the only open question being as to whether or not the exposure was voluntary and the injury the result of a risk which should have been recognized as inherent in the position assumed. See Smith, J., in Thane v. Traction Co., 8 Pa. Super. Ct. 451.

2 See Lynch v. McNally, 73 N. Y. 349, and Mullen v. McKesson, 73 N. Y. 195, where it was held that while the defendant, who had kept on his premises animals known to be vicious, was not relieved of liability by contributory negligence of the victim in failing to take care to avoid such animals, he was relieved if the plaintiff with full knowledge of the dangerous nature of the animal deliberately put himself within reach of it. Compare the decision of Paulus, Sent. Rec. 1, 15, § 3, “ei, qui irritatu suo feram bestiam vel quamcumque aliam quadrupedem in se proritaverit, eaque damnum dederit neque in ejus dominum neque in custodem, actio datur." In this respect the civil and common law seem to be at one.

3 of these by far the most important are those dealing with relations of employer and workman. Many statutes have been passed, and more will undoubtedly be enacted, requiring of the employer either care in the preparation of a safe plant in general, or some particular specific protective precaution. In some of these it is expressly provided that knowledge of the breach of such statutory requirements and a continuance in their employment thereafter shall not bar recovery. Schlemmer v. R. R., 205 U. S. 1; N. Y. Employers' Liability Act of 1902. In others the same result has been reached by judicial construction. Smith v. Baker, [1891] A. C. 321; Narramore v. R. R., 96 Fed. 298. There are also some cases where, while contributory negligence is no bar, voluntary assumption of risk defeats recovery. See Mullen v. McKesson, supra. It is by no means certain that this is not so of the Employers' Liability Act, applicable

assumption of risk and contributory negligence has thus become of immense practical importance, and it is essential to fix with precision the exact boundary between the closely adjacent fields which they occupy.

One suggested line of demarcation may be at once dismissed. The weight of reason and of authority is against the view that voluntary assumption of risk is confined to relations created by contract, and arises out of an implied term of the contract creating the relation. It is, on the contrary, an incident inevitably attached by law to all relations and associations, contractual or otherwise, which are voluntary upon both sides. The plaintiff's actual consent to run the risk is immaterial; having no right save that derived from the defendant's consent to enter into relation or association with him or his property, he cannot complain because the defendant makes that association dangerous. He may either take it as he finds it or leave it, but if of his own free choice he chooses to enter into association with the defendant, he must perforce accept the risks obviously inherent therein, no matter how strongly he protests against them, or how emphatically he expresses his unwillingness to run them.

The differences between voluntary assumption of risk and contributory negligence are many and fundamental.

I. Voluntary assumption of risks negatives the idea of even primâ facie liability. If the plaintiff has no legal right to place himself in juxtaposition with the defendant, his premises or business, if his association therewith is entirely dependent upon the latter's consent, the defendant owes him no duty in regard to the condition of his premises or plant or the system which he chooses to adopt in the conduct of his business, save that the actual shall conform to the apparent conditions. If the danger be apparent, there is no further duty; if it be not apparent, then notice of it must be given.

to carriers engaged in interstate commerce, passed by Congress, June 11, 1906. See 20 HARV. L. REV. 94, n. 3. While this act has been recently declared unconstitutional, Howard v. Ill. Cent. R. R., and Brooks v. So. Pac. R. R., U. S. Sup. Ct., Jan. 6, 1908, there seems no doubt that some similar act will sooner or later be passed in a form designed to meet the objections of the court — in fact such a measure has already been introduced by Senator Knox.

1 See Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 698, and Knowlton, J., in O'Maley v. South Boston, etc., Co., 158 Mass. 135, 136. See contra, St. Louis Cordage Co. v. Miller, 126 Fed. 495, and Stonington Co. v. Mann, 219 Ill.

2 Henn Collins, then M. R., in Burr v. Adelphi Theatre Co., [1907] 1 K. B. 544.