Same Subject-Master's Duty to Provide Safe Place..... 343 REDRESS FOR NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. General Principles Governing Redress for Negligence.... 357 Of the Doctrine of Contributory Negligence... Same Subject-Contributory Negligence as Modified by the Doctrine of Comparative Negligence.. šame Subject-The Contributory Negligence Must Have Been the Proximate Cause of the Injury.... PERSONAL RIGHTS OR THE ABSOLUTE RIGHTS OF INDIVIDUALS CHAPTER I. RIGHTS DEFINED, AND PERSONAL RIGHTS EXPLAINED. Sec. 236. MEANING OF RIGHTS.-A right generally is defined to be "one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or force of society."* A legal right is defined by the same author to be, "a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others." It has also been defined as "a legally protected interest." The above definition of a right, as the word is used in correct legal terminology, is to be distinguished from the ambiguous uses of the term as opposed to "wrong," and by Blackstone in his division of "rights of persons" and "rights of things." Sec. 237. THE LAW CREATES AND PRESERVES RIGHTS.-"The end of the law," says Locke, "is not to abolish or restrain, but to preserve or enlarge freedom.† The means by which law regulates *Holland's Jurisprudence, p. 71. +Locke's Civil Government, I, Sec. 57. society and enhances the welfare of individuals is by the creation and protection of legal rights. As an institution for the establishment and perpetuation of individual and social rights it subserves the well-being of society, and affects, in the highest degree, the progress of civilization. A legal right has validity and force solely from its recognition and enforcement by the State. The intervention of the State, upon its own motion, or when called on, in compelling the performance of specific acts and punishing the doing of others which it has declared illegal, is known as the sanction of law. Law defines the rights which it will aid, and specifies the way in which it will aid them. As it defines, or creates, it is Substantive law. So far as it provides a method of aiding and protecting, it is Adjective law, or Procedure. Rights, being thus created and protected by the law, which is the expression of the sovereign will of the ruling body, should, in our country at least, be formulated and fostered by public opinion.* Sec. 238. RIGHTS AND DUTIES CONSIDERED.-Every right implies the active or passive furtherance on the part of others, and such furtherance on their part is said to be their duty. Hence the terms "rights" and "duties" are correlative, or express the same state of facts viewed from opposite sides. That is, persons are equally subjects of rights and duties. *Holland's Jur., Chs. 7 and 8. Rights inhere in persons, but in order that these rights may be uniform and equal duties are incident to the same persons. The purpose of law is to equalize, and to guarantee that all enjoy their rights, and to this end it compels the performance of duties. Whenever rights are imperiled by wrongdoing, or even a threat of it, the law interferes to restore the previous condition or prevent the contemplated injury.* "PERSONAL Sec. 239. MEANING OF RIGHTS.”—The branch or division of law known as "Personal Rights," results from Blackstone's classification of the law in the first book of his Commentaries. After first dividing the realm of law into the two great divisions "rights that are commanded" and "wrongs that are forbidden," he thus continues: “Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors. Holland's Jur. Chs. 8 and 13. "The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors, with the means of prevention and punishment."-1 Bl. Com., 122. Sec. 240. SAME SUBJECT-CRITICISM OF BLACKSTONE'S DIVISION.-Judge Cooley in a note to this section of Blackstone criticises the division of "rights of persons" and "rights of things" as being the same thing, for, as he observes, “all rights whatever must be the rights of certain persons to certain things. Every right is annexed to a certain character or relation, which each individual bears in society. The rights of kings, lords, judges, husbands, fathers, heirs, purchasers and occupants, are all dependent upon the respective characters of the claimants." (Cooley's Bl. Com. I, 122n.) But, as the eminent judge in the same connection remarks, "the order of legal subjects is, in a great measure, arbitrary, and does not admit of that mathematical arrangement where one proposition generates another, it perhaps would be difficult to discover any method more satisfactory than that which the learned judge has pursued, and which was first suggested by Lord Ch. J. Hale." |