Appendix D. Contributory Negligence in Roman Law.

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Contributory negligence, and the allied topics considered in the text, did not escape the Roman lawyers, but they are treated only in an incidental manner and no complete theory is worked out. The passages bearing on the point in the Digest “Ad legem Aquiliam” (ix. 2) are the following:—

L. 9 § 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit occisus, Aquiliae locus est: sed si cum alii in campo iacularentur servus per eum locum transierit, Aquilia cessat, quia non debuit per campum iaculatorium iter intempestive facere. Qui tamen data opera in eum iaculatus est, utique Aquilia tenebitur.

It is not clear whether the words “data opera” are intended to cover the case of reckless persistence in the javelin-throwing after the danger to the slave who has put himself in the way is manifest. There can be no doubt however that Ulpian would have considered such conduct equivalent to dolus. With this explanation, the result coincides with the English rule.

L. 11, pr. (Ulpian). Item Mela scribit, si, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus eam deiecerit et sic servi quem tonsor habebat [al. radebat] gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam: et sane si ibi tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur: quamvis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.

Mela seems to have thought it a question of fact, to be determined by closer examination of the circumstances, whether the barber, or the player, or both, were in culpa. Probably the question he mainly considered was the proper form of action. Proculus held the barber only to be liable. Ulpian agrees that there is negligence in his shaving a customer in a place exposed to the accident of a stray ball, if the evidence shows that he did so with notice of the danger; but he adds that the customer, if he in turn chose to come and be shaved in a dangerous place, has only his own want of care to thank for his hurt. To obtain this result it is assumed that the danger is equally obvious to the barber and the customer; it is likewise expressly assumed, as a condition of imputing culpa to either of them, that the game is carried on in an accustomed and convenient place. Given those facts, English law would arrive at the same result in a slightly different form. The players would not be bound to anticipate the rashness of the barber, and the barber, though bound to provide reasonable accommodation for his customers, would not be bound to warn them against an external source of risk as obvious to them as to himself. It would therefore probably be held that there was no evidence of negligence at all as against either the players or the barber. If the game, on the other hand, were not being carried on in a lawful and convenient place, not only the player who struck the ball would be liable, but probably all concerned in the game.

L. 28 (Paulus). Pr. (A man who makes pitfalls in a highway is liable under the lex Aquilia for consequent damage: otherwise if in an accustomed place). § 1. Haec tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit: et multa huiusmodi deprehenduntur, quibus summovetur petitor, si evitare periculum poterat.

This comes very near the language of our own authorities.

L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur si is in publicum decidat nec ille proclamavit, ut casus eius evitari possit. Sed Mucius etiam dixit, si in privato idem accidisset, posse de culpa agi: culpam autem esse, quod cum a diligente provideri poterit non esset provisum, aut tum denuntiatum esset cum periculum evitari non possit.

Cp. Blackst. Comm. iv. 192, supra, p. 410. Here a person who is hurt in spite of the warning is not necessarily negligent; as if for example he is deaf and cannot hear the warning; but this is immaterial; for the ground of the other not being liable is that he has fulfilled the duty of a prudent man.

The words “vel machinarius” spoil the sentence; they are too much or too little. One would expect “vel machinarius ex aedibus lapidem,” or the like. The passage as it stands can hardly be as Paulus wrote it (though it is likely enough to be as Tribonian edited it), and it seems more probable that “vel machinarius” is an interpolation than that other words have been omitted.

Elsewhere Paulus says, Sent. Rec. I. 15 § 3: Ei qui irritatu suo feram bestiam vel quamcunque aliam quadrupedem in se proritaverit, itaque damnum ceperit [so Huschke: vulg. “eaque damnum dederit,” which does not seem necessarily wrong], neque in eius dominum neque in custodem actio datur.

This is a case, according to English terminology, not of contributory negligence, but of no evidence of negligence in the defendant, the plaintiff’s damage being due wholly to his own act.