stating that "[t]he measure of duty of a negligence-charged defendant is ... 'reasonable care appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care,' "
How later courts described this case
- stating that "[t]he measure of duty of a negligence-charged defendant is ... 'reasonable care appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care,' "
- rejecting implied assumption of risk as a total bar to recovery, noting it as “a defendant’s doctrine which restricts liability and so cuts down the compensation of accident victims”
- a bunting accident case—assumption of risk defense held to be inapplicable and the defense limited “ * * * only to cases in which an employment relationship exists between the parties, as well, perhaps, where there has been an express contractual assumption of risk * * * ”— 133 N.W.2d 136, 153
- “If after such notice plaintiff ... is injured, defendant is not liable, not because plaintiff assumed the risk of injury, but, rather, because defendant discharged his duty towards plaintiff by the giving of notice”
Written by the judges who cited it.
The opinion
Adams, J.
(concurring in affirmance). I concur with Justice Souris in affirmance of the trial judge for the reasons stated in sections 1 and 2 of his opinion. I do not believe it essential to decision in this case to determine that the doctrine of assumption of risk should be done away with in this State. The trial judge concluded that a charge as to assumption of risk should not be given to the jury since assumption of risk is not in the case. I agree with that analysis of the proofs. I would defer considera *60 tion of the elimination of this doctrine until such time as that question is specifically before the Court.
Smith, J., concurred with Adams, J.