Notes and Comments

1.Apparently,the deceased’s own fault – proceeding onto the tracks in front of an approaching train without stopping and looking before crossing – was the immediate cause of the accident.The central issue in this case is whether the deceased could have more chances of survival had the train not been speeding.In other words,did the defendant in any way,or to any extent,diminish the already very narrow chance of escape,or make it more unlikely.The court’s answer is no.Even at the normal speed limit where the engine could have approached less fast,the deceased would still have not enough time to get out of the track or out of the vehicle to avoid being hit.In other words,the deceased’s own negligence had made the accident unavoidable.In that sense,the defendant’s negligence is irrelevant.

2.In tort law,the negligence has to be relevant in causing the injury.For example,no matter how fast one drives the car without causing an actual injury,the most he can be accused of is endangering public safety.For a plaintiff to esta-b lish a case against a defendant in tort,and therefore collect damages,a necessary causal link between the defendant’s negligence and the resulting injury must be established and proven in court.

3.Why doesn’t the plaintiff sue the warehouse,or the railroad company,for building the warehouse in that location (or vice versa,for building the railroad near the warehouse),which just caused the accidents like this waiting to happen?Perhaps the fact that warning signs are sufficient would bar the plaintiff’s action because that would diminish the deceased’s liability and enlarge the responsibility of the railroad company or the warehouse.However,wouldn’t it be fair to do so anyway? In a strict liability sense,the deceased would not have to be in a dangerous position and carry the responsibility to avoid it had the railroad crossing not been there.How would you develop a theory based on strict liability?(https://www.daowen.com)

4.Think of the following argument: most people,when jaywalking,would calculate the speed of the approaching vehicles and chances to getting over,or alternatively,the possibility or likelihood of the approaching vehicle to slow down.This is usually done in a split of a second,and then they would quickly decide whether to proceed or wait.Some people,unfortunately,just couldn’t wait,espe-cially when seeing a long procession of vehicles approaching.In Perkins,the train was over a mile long.Anyone seeing that would like to get over the tracks before it.If the burden to avoid the accident is placed on the railroad company and the trainmen to approach a blind crossing at a very low speed,and pull the emergency brake,it is undoubtedly too costly and too inconvenient (it takes much longer for a train to stop and restart again).If the burden is placed on the vehicles and pedestrians,the cost is their lives.Of course,more safety devices would certainly help (such as turnpikes,etc.).The point in legal argument would be,suppose everything will remain the way it is,different allocation of risks and liabilities would encourage a more desirable social behavior and discourage the undesirable ones.Would that be the rationale behind the court decision in Perkins?