The Blackburn test is rejected by what we consider the decided weight of American authority.14

This doctrine imposing, in exceptional cases, absolute liability for non-culpable accident - this holding that a man, in certain cases, acts at his peril is regarded unfavorably by some of the

best modern text-writers.15

"Had the law been content to adopt the uniform principle that liability for accidental harm depended in all cases on the existence of negligence on the part of the defendant or his servants, most of the serious difficulties and complexities which now exist would have been eliminated. Unfortunately, however, for the simplicity and intelligibility of our legal system, it has been found necessary to recognize a number of cases of absolute liability, that is to say, liability for accidental harm independent of any negligence on the part of the defendant or his servants, and the scope and limits of these exceptional rules still remain largely covered with doubt and darkness." 16

Some jurists would require only due care under the circumstances, a standard which would, of course, require care proportioned to the apparent risk, and thus would often, in fact, require great care. And while thus making negligence the basis of liability, they might impose upon the defendant the burden of proving care, as is done by Sir Frederick Pollock in his "Draft of a Civil Wrongs Bill Prepared for the Government of India."17

This doctrine that a man, in certain cases, acts at peril and is absolutely liable for non-culpable accidents is, as we have already said, a survival from the early days when all acts were held to be done at the peril of the doer. When the courts, in more recent times, were gradually coming to adopt the doctrine that fault is state, where the earlier decisions were understood as having adopted the rule in Rylands v. Fletcher, compare City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 128 N. W. 817 (1910), with Cahill v. Eastman, 18 Minn. 324 (1872), and Wiltse v. City of Red Wing, 99 Minn. 255, 109 N. W. 114 (1906).

14 For very explicit decisions, see Losee v. Buchanan, 51 N. Y. 476 (1873); Brown v. Collins, 53 N. H. 442 (1873); Marshall v. Wellwood, 38 N. J. L. 339 (1876). See also BURDICK, TORTS, 2 ed., 447; Professor E. R. Thayer, 29 HARV. L. REV. 814. Williams, J., in Gulf, Colorado & Sante Fe Ry. Co. v. Oakes, 94 Tex. 155, 158, 159, 58 S. W. 999 (1900).

15 See POLLOCK, TORTS, 10 ed., 505, 511, 671, n. (s.); I STREET, FOUNDATIONS OF LEGAL LIABILITY, 84, 85. Compare BISHOP, NON-CONTRACT LAW, §§ 1225, 1230; and 2 COOLEY, TORTS, 3 ed., 696–97, 706-08.

16 SALMOND, TORTS, 4 ed., Preface, v.

17 Article 68 (s.). See POLLOCK, TORTS, 10 ed., 477–78.

generally a requisite element of liability in tort, the law on the subject of liability for negligence was not so fully developed as it is now. If the wide scope and far-reaching effect of the law of negligence had then been fully appreciated, it is quite probable that the courts would not have thought it necessary to retain any part of the old law of absolute liability for application in certain exceptional instances.

There was "a time when the common law had no doctrine of negligence." It has been said that, in the earlier stages of the law, "there is no conception of negligence as a ground of legal liability.”

In Holdsworth's "History of English Law" 18 the author speaks of "the manner in which the modern doctrines of negligence have been imposed upon a set of primitive conceptions which did not know such doctrines." Mr. Street says that the law of negligence "is mainly of very modern growth." "No such title is found in the year books, nor in any of the digests prior to Comyns (176267)." 19 Sir Frederick Pollock says: "The law of negligence, with the refined discussion of the test and measure of liability which it has introduced, is wholly modern; "20 Professor E. R. Thayer says "that law" (the law of negligence) "is very modern - so modern that even the great judges who sat in Rylands v. Fletcher can have had but an imperfect sense of its reach and power. . . . the law of negligence in its present development is a very modern affair, rendering obsolete much that went before it." 22

" 21

.

At the present time it is generally unnecessary, in order to do justice to a plaintiff, to adopt the doctrine of acting at peril.23

22 Ibid., 814. The development of the law of negligence was retarded by a tendency to hold a defendant liable on the ground of wrong intent, where the real fault was negligence. In such cases the intent was "presumed" by fiction of law. See I STREET, FOUNDATIONS OF LEGAL LIABILITY, 75, 78.

23 In some American cases the courts, while deciding in favor of the plaintiff, have cited and seemingly approved the Blackburn Rule in Rylands v. Fletcher. But in the great majority of these cases the facts did not call for an application of that rule, the defendant being liable on other grounds, frequently on the ground of his negligence. See Professor Bohlen, 59 U. PA. L. REV. 433-37.

We have already seen that by the weight of modern authority the decision for plaintiff in the case of Rylands v. Fletcher itself might have been based on negligence.

Professor E. R. Thayer says:

. . . the law has at its hand in the modern law of negligence the means of satisfying in the vast majority of cases the very needs which more eccentric doctrines are invoked to meet." 24

If the case is a meritorious one and proper emphasis is laid on the test of

125

"due care according to the circumstances," then "the theory of negligence" will generally be "sufficient to carry the case to the jury." "How powerful a weapon the modern law of negligence places in the hands of the injured person, and how little its full scope has been realized until recently, is well shown by the law of carrier and passenger. "... one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge." 26

One argument for imposing absolute liability on the defendant is the supposed difficulty which the plaintiff lies under if he is obliged to prove defendant's negligence. Professor E. R. Thayer 27 replies:

"The difficulty is met by the doctrine of res ipsa loquitur. It is, indeed, the very situation for which that doctrine exists. " 28

If the two rules of law - namely, (1) the doctrine of Rylands v. Fletcher as qualified by Nichols v. Marsland and Box v. Jubb, and (2) the rule prevailing where the Rylands test is rejected and the defendant's liability depends on negligence

"be compared in their practical result, the difference between the two in the actual protection given by the law to the injured person is not very great. 'Such an intermediate ground no doubt exists; but it is a little space. How narrow it is can hardly be realized until the full scope

of the modern law of negligence is recognized." 30

28 See his explanation of "the principles to which the phrase points," p. 807.

29 Professor E. R. Thayer, 29 HARV. L. REV. 808.

30 Ibid., 804-05.

31

Professor Salmond, indeed, goes further and practically denies the existence of any "intermediate ground." He maintains that, under the limitation upon Rylands v. Fletcher, which is established by Nichols v. Marsland, a landowner is exempted from responsibility "when there is no negligence at all upon the part of any one." 32

What is the present scope, or application, of the common law doctrine imposing absolute liability in exceptional cases of nonculpable accident? What is the tendency of the courts to extend or to restrict its application?

At the present time, in all countries where the common law prevails, we think it will be found that there are some instances of non-culpable accident where absolute liability will be imposed; some acts or uses which the courts will hold to be extra-hazardous and hence done at the peril of the doer. In many jurisdictions the test of liability will not be so broad as the Blackburn Rule. The line will be drawn in different places, varying with the particular country and with the particular date. Some cases will, at the same time, be held extra-hazardous in one country but not in another country. Thus the keeper of an elephant in England acts at peril; but not so in Burma.33 And some cases will be held extrahazardous in a country at an earlier date, but not so held in the same country at a later date. 34

As to the present tendency of the courts:

On the one hand, there is now a judicial tendency to extend (to recognize more fully) the obligation of using care; to call some conduct negligent which would not have been held so a century ago.

On the other hand, there is a tendency to restrict or deny liability 31 TORTS, 4 ed., 233.

...

32 "Mr. Salmond argues that Rylands v. Fletcher does not apply where there has been no negligence on the part of any one. I should be glad to think so if I could." SIR FREDERICK POLLOCK, TORTS, 10 ed., 511, n. (m.).

In the Preface to 143 REVISED REPORTS, Sir Frederick Pollock, after stating the objections to Mr. Salmond's "ingenious thesis" relative to the application of Rylands v. Fletcher, says: "For my own part, as I have already said elsewhere, I should like Mr. Salmond to be found in the right. The difficulties, however, are great."

33 Compare Filburn v. People's, etc. Co. Ltd., 25 Q. B. D. 258 (1890), with Maung Kyaw Dun v. Ma Kyin, etc., 2 Upper Burma Rulings (1897-1901), Civil 570 (1900); S. C. 2 AMES & SMITH, CASES ON TORTS, ed. 1909, 548.

34 See 27 HARV. L. REV. 352-53, as to use of a steam boiler in New York in 1807 and

35

in the absence of negligence or wrongful intention. Professor Wigmore, speaking of the principle enunciated by Blackburn, J., in Rylands v. Fletcher, says:

"... the tendency may perhaps be said to be in many States to restrict to as few as possible the classes of situations to be governed by the principle. An example of the latter attitude is found in the masterly opinion of Mr. Justice Doe, in Brown v. Collins, 53 N. H. 442.”

If there were no modern legislation which might indirectly influence the views of judges, we should be inclined to predict that there would be a gradual diminution in the number of cases where absolute liability is imposed on non-culpable defendants, and it would even be possible that ultimately courts might cease entirely to hold defendants liable in cases of non-culpable accident.

But there is modern legislation, enacted almost wholly within the last twenty-five years, which may indirectly operate to check any further judicial tendency to exonerate in cases of non-culpable accident, and which, conceivably, may even cause courts to reverse the modern common law doctrine that fault is generally requisite to liability. Much of this legislation is of the class usually described as Workmen's Compensation Acts. These statutes create a duty on the part of employers to compensate workmen in many kinds of industry for accidental damage, irrespective of any fault on the part of their employers or their fellow servants. This legislation singles out workmen employed in an undertaking and constitutes them a specially protected class, while overlooking other persons damaged in the same accident whose claim stands on at least equal ground. The result reached in many cases under this legislation is absolutely incongruous with the result reached under the modern common law as to various persons whose cases are not affected by these statutes. The theory underlying most of the statutes, the basic principle, is in direct conflict with the fundamental doctrine of the modern common law of torts.37 The statutes show "a distinct revulsion from the conception that fault is essential to liability";

35 7 HARV. L. REV. 455, n. 3.

36 See four examples in 27 HARV. L. REV. 237-38.

37 See ibid., 245-47. Under these statutes “there is a legal liability without fault, a liability much more extensive than that which grew out of the rule respondeat superior, qualified as that was by the fellow servant rule and the theory of assumption of risk." Judge Swayze, 25 YALE L. J. 5.