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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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