Page:Harvard Law Review Volume 8.djvu/407

391 A GENERAL ANALYSIS OF TORT-RELATIONS. 391 Illegality, — as, in certain cases, the violation of a statute; {c) the attitude of one who as a trespasser, or licensee, or employee, may fairly be regarded as assuming certain risks on the premises of others ; {d) negligent conduct, almost equivalent in effect to some of these, but less pronounced, — the doctrine of Contributory Neg- ligence. In all of these the effect of the plaintiff's attitude as an Excuse for the defendant is seen to be less pronounced, for it usually does not cover harms inflicted with a certain degree of deliberateness or wantonness. Hence a kind of balancing of the conduct of the parties is in all four often called for, — as in the doc- trine of " proximate cause " under Contributory Negligence, or in the failure to excuse, even as against a trespasser, one who *' sets traps " for him,^ 3. Finally, a condition of the plaintiff calling for humane assistance is a circumstance leading to a limitation. Trespass- ing to save the plaintiff's property or life is said to be in certain cases excusable by "implied license;" but this seems a mere fiction. A sense of the unfairness of the plaintiff's attitude in seeking redress, and the adjustment of this idea to the counter- vailing considerations — the relative harm done and prevented by the defendant, the possibilities of abuse of privilege, etc, — are the real motives supporting the few rules that we have for this topic. B. Taking next the intermediate group of limitations (lettered c above), we find that, with one exception, it is made up of the Various forms of Self-redress and Self-defence. I. To get the benefit lying in the comparison of related situa- tions and the transition from one aspect of policy to the next, the topics may be considered in this order: (i) Defence of one's own person ; (2) Defence of another's person ; (3) Defence of per- sonalty ; recaption of personalty ; (4) Defence of realty ; repos- session of realty; (5) Abatement of a nuisance. Different policies may conceivably prevail for the defence of different interests, and different limitations may obtain according as the object is defence or recaption. Furthermore, within each topic we may consider in order what sort of harms — e.g. a battery, an imprisonment, a 1 The generic feature of the principle of Contributory Fault or Assumption of Risk is seen in that the question may arise in excuse for other harms than a corporal injury, — as where one by his own conduct precludes himself from suing for the seduction of his daughter or the alienation of his wife's affection, or where the author of an immoral book claims protection, or where mutual unbridled recrimination in a neighbors' quarrel prevents either from recovering against the other. 52