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从Palsgraf v. Long Island Railroad Co.看注意义务的

2010-07-02 15:03阅读：

http://blog.sina.cn/dpool/blog/u/1594777727


从Palsgraf v. Long Island Railroad Co.看注意义务的范围

In palsgraf, railroad employees had attempted to boost a passenger safely onto a slowly moving train that he was running to catch. In this process, a package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell explosion threw down some scales at the other end of the platform. The scales struck a woman, causing injuries for which she sues.[①]

Judges the railroad company whether to undertake the right infringement responsibility, has the necessity to judge the employee in this behavior process whether to have intentionally or the negligence. From the course of events to see, we may remove the employee subjectively to exist intentionally. Therefore, the discussion of negligence appears very important. In this case, the judge gave the defendant on his own analysis of whether there was negligence. He considered, first, assuming that the railroad employees were careless, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. Second, the risk reasonably to be perceived defines the employees to foresee the possibility of injury to palsgraf or others similarly situated. There was no duty to her and therefore no liability for negligence[②].
As we know, American tort law adopt to “neighbor principle”, namely, you must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injury your neighbor .Who is my neighbor in law? They are some persons who are so closely and directly affected by my act. Thus we have to engage in each of the acts should always be concerned about other people's interests, not engage in conduct detrimental to others. Whether or not the duty of care is the key to whether or not constitute negligence, is liable. If the actor has violated the duty of care, then there is his fault, if has not violated the attention duty not to constitute illegally. Negligence on the fact that the process is that it is a violation of duty of care. In general, we think that the negligence standard is a reasonable person at that time to confirm whether or not local and can not be foreseen or foreseeable risk of harm or danger[③]. The reasonable, prudent person is an entirely hypothetical character. Moreover, the reasonable person is not necessarily a super cautious individual who sees danger lurking around every corner. Rather, the reasonable person is merely reasonable and prudent, nothing more and nothing less. Facts that are generally known to all adults in a community are imputed to the reasonable person.
In a word, breach of duty of care is an infringement of the substantive elements. According to the duty of care is not everyone's real-life experience, observation, the level of knowledge as a measure of whether or not to do that duty of care standards, it is an objective standard, it is a normal, in the circumstances at that time how to act as the standard. Just as, in Vanghan v. Menlove, 3 Bing.(N.C.)467,132 Eng. Rep. 490(1837) (SATL249), Court's point of view indicates, it is not sufficient that the defendant had tried to do his best; the question was whether the defendant had taken the precautions that would have been observed by a reasonable person. Duty of care depends on predictability. If a reasonable and prudent person under normal circumstances, foresaw the danger of acts that occurred more, then，the actor was on the higher duty of care, while smaller. In as much as some degree of foresee ability is required before there is a duty to exercise care, a question arise as to what degree of foresight is sufficient to require preventive action. The fact that there is a remote possibility of personal injury or property damage is ordinarily not enough.
To determine whether there was negligence in some cases not entirely rely on the reasonable person standard, the actor of the unique features of sometimes be considered. The jury's decision will be guided by instructions from the trial judge. The judge will tell the jury which characteristics of the defendant (such as a physical disability, age, mental deficiency and so on), and which circumstances, maybe taken into account. Some considerations are relevant to whether care has been exercised; other may change the standard of care or preclude liability[④].
[①] 案件来源见王军、高建学著：《美国侵权法》，对外经济贸易大学出版社2007年2月版，第28-29页。
[②] ［美］Vincent R. Johnson著：《美国侵权法》（注释本），赵秀文、徐琳、刘克毅注，中国人民大学出版社2004年7月版，第64页。
[③] 徐爱国著：《英美侵权行为法》，北京大学出版社2004年3月版，第67页。
[④] ［美］Vincent R. Johnson著：《美国侵权法》（注释本），赵秀文、徐琳、刘克毅注，中国人民大学出版社2004年7月版，第68页。

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