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TENTATIVE DRAFT 10, QUESTIONS SUGGESTED FOR DISC. [i] (May 4-6, 1933)

handle is hein.ali/relwtrts0241 and id is 1 raw text is: The American Law Institute TORTS TENTATIVE DRAFT No. 10 Questions Suggested for Discussion at Eleventh Annual Meeting May 4-6, 1933 Discussion is not confined to the questions pre- sented here. In view of the limited time for discussion, however, those attending the meeting should come pre- pared to ask specific questions or to raise specific points. 1. Section 12. Should a comment be inserted stating that a court may, as indeed it has often done, declare a plaintiff guilty of contributory negligence as a matter of la.w where had the same conduct been that of the defendant the court would not have felt itself justified in with- drawing the case from the jury? 2. Section 15. Clause (b) includes three separate sub- divisions. Sub-division (ii) states what is the rule in the great majority of American jurisdictions. On the other hand, a few jurisdictions go no further than Sub- division (i) and do not permit a negligent plaintiff to recover unless the defendant not only knows of the plaintiff's dangerous situation but actually realizes that it involves a peril to the plaintiff which such plain- tiff is incapable of avoiding and which, therefore, can only be averted by action on the part of the defendant. Sub-division (iii) states the rule in force in a large number of American States which permits a negligent plaintiff to recover even though the defendant does not know of the plaintiff's danagerous situation, if the de- fendant by the exercise of a duty of vigilance owing to the plaintiff could have discovered it. The ira-

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