preme jurisdiction shall freely and fearlessly exercise their appellate powers.1

Even in the absence of that line of decision which has distinguished between contributory negligence and assumption of risk, the points of difference between the two are so many and obvious that the distinctive character of each is plainly apparent. Yet it by no means follows that because the one is not a mere variation or product of the other, they are not both based upon the same fundamental conception of the proper function of private remedial law.

1 In Schlemmer v. R. R., 207 Pa. St. 198, the Supreme Court of Pennsylvania had decided that when a brakeman was injured in coupling a car unprovided with automatic couplers as required by act of Congress (27 Stat. at L. 537, § 2), though the act expressly provided that knowledge of its violation should not entail assumption of the risk of injury therefrom, his act in lifting his head some few inches too high when making the coupling was contributory negligence per se. On appeal to the Supreme Court of the United States this was reversed (205 U. S. 1), and though the decision was by a bare majority of five to four, it is submitted that it is correct and necessary. While the question of negligence is one of mixed fact and law, the function of the court in relation thereto is purely judicial. In all issues of fact the court has and must have the power to keep the jury within a proper exercise of their function of drawing inferences of fact. So, of course, when reasonable men can arrive at only one conclusion upon the undisputed facts, the court may well remove the case from them, a contrary finding being possible only as a result of prejudice or error. Even here their exercise of this power is a matter of judicial discretion, a plain abuse of which is ground for reversal. There is, however, a tendency very marked in some jurisdictions to so exercise this power as to substitute as the standard of proper social conduct, especially on the part of a plaintiff, the opinion of the court as to what the person should do in the best interests of the common weal, for that of the jury as to what the average man would regard as prudent. This tendency is particularly marked in Pennsylvania, a state wherein the doctrine of a protective tariff is regarded as sacred even from criticism, and where the economic attitude is, therefore, naturally toward the encouragement of business even at the expense of the individual. The working out of such a policy which, while popular enough in the abstract on election day, can hardly be expected, in its logical consequence of throwing on the individual the primary duty of protecting himself, if it be in any way possible, from the misconduct of business, to appeal to a jury confronted with a specific instance of its working. The benefit to the community, no matter how strongly emphasized by the court in its charge, is almost sure to be lost sight of in the sympathy for the injured plaintiff, who after all has done about what the jury are accustomed to do habitually and to consider perfectly proper. It is manifest that this conception must be enforced, if at all, by the court itself. To insist on care which the average prudent man would never imagine to be necessary, i. e., to set up a new standard of proper social conduct, creates a new rule of law and is an act purely judicial — in no true sense is it a finding of fact at all — and it is essential that such rulings be carefully scrutinized by the Supreme Court of the United States, lest the public policy of the supreme jurisdiction which has led to the passage of the act be nullified by antagonistic economic conceptions of the inferior jurisdiction in which it must procedurally be enforced.

Consent also differs from voluntary assumption of risk. It is manifestly improper and inaccurate to speak of assumption of risk as an implied consent to receive the harm sustained. One can be properly said to consent to a harm only when he knows that the harm will ensue and intends to suffer it. One voluntarily assuming a risk in practically every case hopes and expects to escape injury. If the maxim volenti non fit injuria is to express with any approach to accuracy the principle of voluntary assumption of risk, volens must be taken to mean willing to run the risk, not to endure the harm.1

Yet undoubtedly both of these principles had their root in the same legal conception, the same individualistic view as to the proper province of private law. Where no public interest is at stake, no public harm done or threatened, each individual was and is left free to do what he pleases with his own. The state has no interest in his getting the utmost benefit from his merely private rights. It protects him in his right to do what he pleases with them so it prohibits their invasion without his consent - it does not attempt to protect him from his own folly in dealing with them. It does not prohibit him from dissipating his resources in any way he pleases, from throwing them away, from destroying them himself, or from consenting to their destruction or impairment by others. Such is the underlying basis of consent.

The same conception logically leads to the somewhat different but cognate principle that as he may give away his private rights, as he may consent to their destruction, so, while risks may not be forced upon him against his will, he may place them in what peril he please, subject them to what risk he chooses, and he who gives him the opportunity to do so is no more guilty of a wrong toward him than he who, with the consent of the owner, takes his property.2

1 In fact it would seem that the maxim properly understood applies only to consent, for unless the plaintiff wills to receive the particular damnum, he can hardly be said to be in any true sense volens thereto.

2 So far the civil law and common law are at one. At both consent or voluntary assumption of a known risk negatives even prima facie liability, but here or here abouts the civil law appears to have stopped. It is often said by writers on the civil law that it recognized the defense of contributory negligence. Hunter, Roman Law, 2 ed., 246-247; Howe, Studies on the Civil Law, 206 et seq.; Wharton, Negligence, 2 ed., § 130. On examination it will be found, however, that the examples on which they base their conclusions are all cases where the injured party voluntarily and without legal right encountered an existing and known, or obvious danger,as where

This, however, does not account for the defense of contributory negligence. So far there has been a conscious, freely willed destruction or imperilment of a right with which the owner is free to do what he pleases. Contributory negligence goes much further. It throws on the individual the primary burden of protecting his own interest. The courts are the last resort of him who not merely does not, but cannot, protect himself. This conception is part of the very atmosphere of English legal thought, it is not peculiar in the law of torts to negligence alone, nor is it even confined to the law of torts. The peculiarly common law rule of caveat emptor is based upon it. The first distinct statement that "when common prudence and caution of man are sufficient to guard him the law will not protect him in his negligence," is by Lord Kenyon in Pasley v. Freeman, an action of deceit. Nor is this to be wondered at. The civil law conception that an individual may do what he pleases with his own is tinged by the peculiarly English characteristics of independence and self-reliance, and so becomes supplemented in the common law by the more intensely individualistic conception that he is also his own first bulwark against outside interference, and that the function of remedial law takes on

where the power of self-protection ceases. The civil law appears to go no further than to recognize that the plaintiff is barred from recovery, when at common law he would be held to have assumed the risk,2 all beyond this appears to be a peculiarly common law growth.

a slave walking across the Campus Martius was struck by a javelin thrown by a soldier at exercise (D. 9-9-4); where a customer who patronizes a barber having his chair in the market place where people are accustomed to play ball, has his throat cut by reason of a ball striking the barber's arm (D. 9-2-31); and where a man by teasing wild animals causes them to harm him (Sent. Rec. 1-15, § 3).

13 T. R. 51. See also the very instructive case of Bailey v. Merrill, 3 Bulstr. 95 (1659), where a carrier sued in deceit a shipper who had understated the weight of the goods, but, by Dodderidge, J., " Here is plain default in the carrier, he at his peril ought to have looked to this before."

2 It is at the point where voluntary assumption of risks shades most nearly into contributory negligence that the civil law most closely approaches this conception. The nearest approach to a recognition by the civil law of contributory negligence in the examples cited by text-writers is the case of a man injured by falling into a trap set for bears or deer, either on a highway or upon a customary path (D. 9–2–28); here it is said that there are many cases found in which the plaintiff was barred if he was able to avoid the peril. This of itself is appropriate either to voluntary risk or to contributory negligence. In the previous sentence it is said, however, that a cause of action arises where there is no notice given and the danger is not known or obvious. "Si neque denuntiatum est neque scierit aut providere potuerit." If providere means more than to observe the obvious, this case comes close to a recognition of a

The development in the law of negligence of this idea was necessitated by the enormous growth of protective duties incident upon the extraordinary economic and mechanical changes taking place during the early part of the nineteenth century. A civilization in which the relations between individuals were few and simple, in the course of a few years, was turned into one in which individuals were thrown into a multitude of complex and novel associations. The extent of the social duties of one citizen to another became enormously enlarged. Unless each man was to be regarded as his brother's keeper, unless he was to be unduly burdened with the duty of practically insuring the world against the results of his conduct, it was necessary that the correlative duty of self-protection should be extended as a counterpoise and corrective.1 It was manifestly unfair that the whole burden of protective caution should be thrown on one of the two parties, or that any man should be required to take better care for others than such persons are bound to take of themselves. The duty of care for others manifestly should be no higher than the duty of self-protection. To hold otherwise would be to unduly burden business and enterprise, to make of those engaged therein the guardians of those apt to be affected by their operation, and at the same time to rob of

duty of precaution. It is indeed difficult to say to which of these two exhibitions of the individualism of remedial law belongs the rule that a man accepts risks not actually known to him, but which are obvious to one using his senses. It is enough to say that in such case the tendency of later common law decisions is to hold that the risk is assumed, not that the plaintiff is barred by his negligence in not discovering the danger (see Day, J., in McDade v. R. R., 191 U. S. 64, 68).

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1 So, while in other fields the extreme individualism of the common law is rapidly giving way, it still persists unimpaired in the law of negligence. In deceit the plaintiff need no longer investigate at his peril the truth of statements made to him. Mitchell, J., in Ingalls v. Miller, 121 Ind. 191; Cotrill v. Krum, 100 Mo. 397. the very late case of Pearson v. Dublin, [1907] A. C. 351, where Lord Atkinson intimates (p. 365) that even an express agreement not to rely on the defendant's statements might be void. So also the right of recovery of money paid intentionally, but under some mistake or improper pressure, has been greatly extended. So too the interest of the public, the Commonwealth, in the proper use of natural resources, has led in many instances to an abridgment of a property owner's privilege of doing what he pleases with what he finds therein. Compare Gagnon v. French Lick Springs, 163 Ind. 687, and Forbell v. N. Y., 164 N. Y. 522, with Pickle v. Bradford, [1895] A. C. 687, and Chasemore v. Richards, 7 H. L. Cas. 349. The tendency today is rather toward collectivism - a fuller and fuller recognition of the state as a party having an interest in what until recently were regarded as purely private controversies. But the state's principal interest in enforcing social good conduct is to prevent accidents, the adjusting of the loss therefrom being as yet regarded as primarily a matter of private concern, and this object can best be served by demanding due care from both parties concerned.

self-reliance, and so enervate and emasculate and in effect pauperize the latter by accustoming them to look to others for protection and by removing from them all responsibility for their own safety. To hold that, where the only wrong alleged is the defendant's failure to take care for the plaintiff's safety, the plaintiff's own failure to protect himself debars him from recovery, is but a logical and legitimate extension of the conception underlying consent and voluntary assumption of risk-that the plaintiff can ask from others no higher respect for his rights than he himself pays to them.

If the defendant's wrong be intentional, only consent, express or necessarily implied from the circumstances, will bar recovery. The defendant's intent to cause the harm must be met by the plaintiff's intent to suffer it. If it be an act deliberately done tending to the plaintiff's manifest injury, he must as deliberately subject himself to it. If it be a mere inadvertence, a similar inadvertence will bar his recovery. Logically, therefore, the defense of contributory negligence should apply only when the gist of the alleged wrong is the defendant's failure to take care for the plaintiff's safety. So the unanimous current of decision is that when the defendant's wrong is something more than mere negligence when it involves an intent to cause harm― contributory negligence is no defense.1

When all is said, it may well be that in such case the defendant, in the language of the Year Books, "is to be punished for his wrong," a wrong, in fact, quasi-criminal, not a mere breach of social duty. While the compensatory feature of the law of tort is that most prominent in modern cases, while it is often asserted that the early punitive aspect has entirely disappeared, there is much that can only be explained by a survival of the earlier conception that private compensation was given as an incident to, or a means

1 This is not dependent on the form of the action, whether trespass vi et armis or case, or whether the injury is direct or indirect, or upon the fact that the defendant's act was conscious and intended; the defendant must not merely intend to act, - his act must be intentionally hostile to the plaintiff, intended to injure him, or at least one done with conscious and reckless indifference to the plaintiff's safety; the act must not be wrongful only in that it was a breach of the defendant's social duty to take care not to expose the plaintiff to unnecessary danger. Compare the difference between conscious ignorance and careless belief in deceit. Peek v. Derry, 14 App. Cas. 337.

2 See the language of Knowlton, C. J., in Banks v. Braman, 188 Mass. 367, where he emphasizes the fact that reckless driving is a criminal offense as well as social misconduct toward those using the highway, and Sultzberger, J., in Weir v. Haverford Electric Co., 64 Leg. Int. (Phila. C. P. No. 2) 4.