202 N.W. 340 | Minn. | 1925
Lead Opinion
The bill of exceptions does not contain the evidence. We must assume that the facts warranted the charge given. This case, however, must not be construed as an authority for the application of the doctrine we now announce to the facts as they in part appear in the record and briefs.
Contributory negligence bars an action based upon ordinary negligence. Contributory negligence has no application where defendant is guilty of wilful and wanton negligence. Such negligence incurs liability irrespective of contributory negligence.
Wilful and wanton negligence is a reckless disregard of the safety of the person or property of another by failing, after discovering the peril, to exercise ordinary care to prevent the impending injury. Anderson v. M. St. P. S.S.M. Ry. Co.
The theory of these variations of negligence leads to but one logical conclusion, and that is that the same basic reason which causes contributory negligence to prevent a recovery in an action sounding in ordinary negligence also prevents a recovery by one who is guilty of wilful and wanton negligence from a defendant because of wilful and wanton negligence. Such negligence is just *114 as efficient to offset the defendant's negligence of the same character as contributory negligence offsets ordinary negligence. There can be no more comparative wantonness than there can be comparative negligence. When both parties are guilty of such negligence, neither can be selected as that which is the proximate cause and hence the law must leave both where it finds them. The conclusion is inevitable, even though its application be fraught with difficulties. We answer the inquiry in the affirmative.
There is some authority to the contrary. Central Ry. Co. v. Partridge,
There are some authorities that tend to support our conclusion. Spillers v. Griffin,
Affirmed.
Dissenting Opinion
I dissent.