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Lawson v. Hoke9/9/2005
tances of this case that they are dispositive. Facing the same predicament, the Smothers court looked to various other sources to determine the content of the common law at the time of the drafting of the Oregon Constitution, including roughly contemporaneous cases from other jurisdictions, as well as Oregon cases decided in the decades shortly after the adoption of the constitution. Smothers, 332 Or at 129. We do the same here.
We begin by noting in passing the indisputable proposition that, in the early years of this state's history, a plaintiff's contributory negligence was an absolute bar to recovery for the negligent acts of another. That is, a plaintiff could not recover damages for injuries caused by the negligence of another if his own carelessness or negligence contributed in any way to his injuries. See, e.g., Stone v. Oregon City Mfg. Co., 4 Or 52 (1870) (under doctrine of contributory negligence, employee who was injured in workplace by equipment that his employer had negligently maintained would be denied recovery if evidence tended to show that employee could have avoided injury had he been more attentive). We mention that rule only to illustrate that the right to bring an action at common law could be limited.
However, the foregoing rule respecting contributory negligence was one that developed in the common law. What of statutory rules? Cases somewhat resembling the instant case factually are the so-called "Sunday law" cases from other jurisdictions. Before and around the time of the adoption of the Oregon Constitution, many states had laws prohibiting citizens from traveling on Sundays unless the purpose of the travel could be characterized as being either necessary or charitable. And, at that time, certain courts held that plaintiffs who traveled in violation of Sunday laws were not entitled to recover for any injuries that might have been caused by a city's or municipality's negligent failure to keep the streets in good repair. See, e.g., Bosworth v. Swansey, 51 Mass (10 Met) 363, 365 (1845) (concluding that person's violation of law was a "species of fault on his part" precluding recovery); Hinckley v. Penobscot, 42 Me 89 (1856) (denying recovery to plaintiff injured while traveling on Sunday when he failed to establish that his travel was work of charity or necessity); Johnson v. Irasburgh, 47 Vt 28 (1874) (stating same principle). Those cases tell us, at a minimum, that it was not unfamiliar to the common law of the mid-nineteenth century for courts to deny a remedy for negligence to a plaintiff who was in violation of positive statutory law when the accident occurred, even if the plaintiff's violation of the law did not contribute directly to the accident.
The logic of the Bosworth line of cases fairly can be challenged on the ground that the coincidence of the plaintiff's violation of the Sunday laws and the defendant's negligence in no way establishes that the violation was itself negligence that contributed even slightly to the accident. That is, there is a causal connection between the violation of the statute and plaintiff's injury only in the "but-for" sense. Indeed, a number of courts in other jurisdictions took that view at the time and declined to view the plaintiff's violation of the Sunday laws as grounds for recovery from a negligent defendant. See, e.g., Broschart v. Tuttle, 59 Conn 1, 21 A 925 (1890) (stating that conclusion after extensive consideration of case law). The point is not, however, that some courts viewed Sunday laws as a ban to recovery while others did not. The point is that, at and before the time of Oregon's statehood, some American common-law courts took the view that violations of law could be a bar to recovery for negligence. More
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