[302]. Only part of case is given. Argument omitted.
[303]. Statement and arguments omitted.
[304]. Wright v. Malden R. Co., 4 All. 283; Nelson v. Burnham & Morrill Co., 114 Me. 213; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Beck v. Vancouver R. Co., 25 Or. 32 Accord. See also Newcomb v. Boston Protective Department, ante, p. 391; Bourne v. Whitman, ante, p. 400, note 1.
Platte & Denver Canal Co. v. Dowell, 17 Col. 376: Richardson v. El Paso Min. Co., 51 Col. 440; Lindsay v. Cecchi, 3 Boyce, 133; Toledo R. Co. v. O’Connor, 77 Ill. 391; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Presto-Lite Co. v. Skeel, 182 Ind. 593; Correll v. Burlington R. Co., 38 Ia. 120; Schlereth v. Missouri R. Co., 96 Mo. 509; Brannock v. Elmore, 114 Mo. 55; Olson v. Nebraska Tel. Co., 83 Neb. 735; Texas R. Co. v. Brown, 11 Tex. Civ. App. 503; Smith v. Milwaukee Builders’ Exchange, 91 Wis. 360 Contra.
In Evers v. Davis, 86 N. J. Law, 196, 202, Garrison, J., says:
“The question then is, What is, upon common law principles, the effect of statutes such as the one we are considering upon the action of negligence? The familiar expressions that the breach of such a statute is ‘negligence per se’ or is ‘prima facie evidence of negligence’ seem to me to postpone elucidation rather than to contribute to it, while the implication that proof of a breach of a public statute will support a private recovery is positively misleading.
A fact constantly to be borne in mind in tracing the legal effect of such statutes is that the negligence that is essential to the action of negligence is not solely in the overt act that produced the injury complained of, but may lie in the failure to foresee the danger likely to result from the doing of such act. ‘Danger, reasonably to be foreseen at the time of acting, is the established test of negligence’ says the writer already cited. Of negligence of this sort it may be said that it is common to all phases of the action, which cannot be said of the mere overt act, which may not be an act of neglect or omission at all, but, on the contrary, one of affirmative commission, e. g., the blowing of a locomotive whistle (Bittle v. Camden and Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma v. Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary lurching of a train (Burr v. Pennsylvania Railroad Co., 64 Id. 30). But whether the overt act be one of omission or of commission, and whether the conduct of the defendant be stated in terms of ‘duty’ or of ‘fault,’ the one common denominator, so to speak, of the action of negligence is this element of what we may call discoverable danger; that is to say, a danger that is susceptible of being discovered in advance of action or inaction by the exercise of that degree of care which if a man fails to exercise he becomes civilly liable for the consequences of his conduct. Now, it is precisely upon this element of discoverable danger that public statutes or ordinances act, and they do this not by giving to the plaintiff a right of action he did not have before, but by their operation upon what we may call the common law conscience of the defendant, better known to us in its personified form of ‘the ordinary prudent man,’ the familiar fiction designed by the common law to aid juries, when deciding what was the proper thing for a man to do, to lose sight of the personal point of view of that particular man and to base their judgment upon a general standard which in the final assize is what the jury itself thinks was the proper thing to do.
Now this ordinary prudent man of common law creation must in the nature of things be regarded as a law-abiding citizen to whom, as is pointed out by Dean Thayer in the article referred to, it would be an unjust reproach to suppose that, knowing the statute—for upon familiar principles he can claim no benefit from his ignorance of it—he would break it, reasonably believing that it was a prudent thing for him to do; and that in all probability no harm would come of it.
In other words, it is inconsistent with ordinary prudence for an individual to set up his private judgment against that of the lawfully constituted public authority. We must assume, therefore, that the ordinary prudent man would not do such a thing since to do so would be to change his entire nature and to forego the very traits that brought him into existence. He would, in fine, cease to be the pattern man he must continue to be in order to be at all.
Upon common law principles, therefore, when the legislature has by public statute established a certain standard of conduct in order to prevent a danger that it foresaw, it has in this regard forewarned the ‘ordinary prudent man’ and through him the defendant in a civil action, whose conduct must always coincide with this common law criterion. Such danger, therefore, does not have to be proved by the plaintiff, since there is no longer room for a reasonable difference of opinion, for by his breach of the statute the defendant, through his common law conscience, is charged with knowledge that if injury ensues he will have acted at his peril.