court rejected open and obvious danger rule, but acknowledged that there may be cases where no duty exists as a matter of law because of the obvious danger posed
How later courts described this case
- court rejected open and obvious danger rule, but acknowledged that there may be cases where no duty exists as a matter of law because of the obvious danger posed
Written by the judges who cited it.
The opinion
Brown, J.,
concurring. I concur in the judgments and conclusions reached in the majority opinion. I further observe that this is a good case in which to conclude, or in which the Ohio Supreme Court should conclude, that the defense of contributory negligence should be eliminated as part of the substantive law of Ohio and that, in its place, the doctrine of comparative negligence should be substituted.
The defense of contributory negligence is law created by the judiciary and therefore can be eliminated by the judiciary. The first contributory negligence case was
Butterfield
v.
Forrester
(K.B. 1809), 103 Eng. Rpt. 926. The first American case recognizing the defense of contributory negligence was
Smith
v.
Smith
(Mass. 1824), 2 Pick. 621 . Prosser on Torts 416, Section 65 (4th ed. 1971), Note 1. For a comparison of early Ohio cases, see
Kerwhaker
v.
C. C. & C. R.R. Co.
(1854), 3 Ohio St. 172 , 178;
Mad River and L. E. R.R. Co.
v.
Barber
(1856), 5 Ohio St. 541, 563-564 ;
Timmons
v.
Central Ohio R.R. Co.
(1856), 6 Ohio St. 105 , 108-109 (citing Lord Ellenborough in
Butterfield
v.
Forrester, supra); Puterbaugh
v.
Reasor
(1859), 9 Ohio St. 484 , 489; and
B. & I. R.R. Co.
v.
Snyder
(1868), 18 Ohio St. 399, 409-410 .
*184
The opinion in the present case, representing the views of a unanimous court, reveals how difficult it is for any jury to apply the contributory negligence rule to the facts and to reconcile such defense with the issue of a defendant’s negligence.
With the elimination of contributory negligence as a defense, any facts now considered by the jury under the umbrella of contributory negligence could be considered as factors in determining the issues of the duty of a defendant, his negligence and the proximate result of any negligence.