[184]. See also Florida, Comp. L., 1914, § 3149; Georgia, Park’s Annotated Code, 1914, §§ 2781 (2332), 2783; Iowa, Supplement to Code, 1913, § 2071; Kansas, Laws of 1911, ch. 239, § 2; Maine, Pub. L. 1910, c. 258, § 4; Mississippi, Laws of 1910, c. 135; Nebraska, Rev. St. 1915, §§ 6054, 7892; Nevada, Rev. L. § 5651 (employees in mines); Ohio, Page & Adams, Ann. Gen. Code, §§ 6245–1, 9018; South Dakota, Laws of 1907, c. 219, § 2; Texas, McEachin’s Civ. St. art. 6649; Virginia, Acts of 1916, ch. 444, § 2; Wisconsin, Stat. 1915, ch. 87, § 1816 (3).
Compare Arkansas, Kirby’s Dig. § 6654; Illinois, R. S. c. 114, § 231; Indiana, Burns’ Ann. St. § 5277 c; Missouri, R. S. (1909) §§ 3164, 3172.
[185]. American Workmen’s Compensation Acts often provide that if the employer does not elect to act under the statute, he shall be liable to an action at law by the injured employee in which contributory negligence shall be no defence. See, for example, Ohio, Page & Adams, Annotated Gen. Code, § 1465–60.
[186]. Portions of opinion omitted. Argument for appellant omitted.
[187]. Planiol, Traité élémentaire de droit civil (6 ed.) II, § 899: “It frequently happens that one who suffers damage through the fault of another is not himself exempt from all fault; he has concurred in the accident and shares responsibility therefor with the other. In this case there is what we call in practice faute commune. This community of fault diminishes the responsibility of the principal author of damage who now only owes a partial reparation.”
German Civil Code, § 254: “If any fault of the injured party has contributed in causing the injury, the obligation to compensate the injured party and the extent of the compensation to be made depends upon the circumstances, especially upon how far the injury has been caused chiefly by the one or the other party.
“This applies also even if the fault of the injured party consisted only in an omission to call the attention of the debtor to the danger of an unusually serious injury which the debtor neither knew nor ought to have known, or in an omission to avert or mitigate the injury....”
[The word “debtor” is used here in the Roman sense, meaning the person bound in any sort of obligation—here the delictual obligation to make reparation for an injury due to fault.]
[188]. See The Drumlanrig, [1911] A. C. 16; Steamship Devonshire v. Barge Leslie, [1912] A. C. 634; St. Louis Packet Co. v. Murray, 144 Ky. 815. But compare Murphy v. Diamond, 3 La. Ann. 441; New York Towboat Co. v. New York R. Co., 148 N. Y. 574; Union Steamship Co. v. Nottingham, 17 Grat. 115.
[189]. The book cites Carth. 194 and 451 in the margin, which references do not bear on the point here in question.—Reporter’s note.