152

THE GREEN BAG

tinguished from actual cause which prevailed himself was known to the defendant, and the when the earliest cases on contributory negli case where the defendant, had he been on the gence were decided, and which has become alert, as he should have been, could have dis obsolete in other fields, which regarded the covered it. Since, admittedly, the defendant last actor, him whose conduct supplied the was liable in the one case, it was hard to deny final, impulse, as the sole responsible cause, the plaintiff relief in the other. And it is and this whether the plaintiff's peril was actu submitted that the doctrine of last clear ally known to the defendant or could have chance goes no further than this. Where the been discovered had he exercised normal care. defendant, had he discovered the plaintiff's Nor is it strange that in this one particular peril, would be powerless to avert it, even class of case this archaic idea continues. The though his inability to save the plaintiff is very tendency toward a fuller and more com due to some prior misconduct whereby he has plete measure of responsibility on the part of put it out of his power to do so, he is generally those guilty of social misconduct which led to held not to be liable for the ensuing harm, the repudiation of the rule in Vicars v. Wil- nor will it matter which of the two antece cocks, where it restricted liability, naturally dent misconducts, the plaintiff's or the de tended to retain it where its abandonment fendant's, was the last in point of time, if would have restricted rather than enlarged neither, after the danger is or should be dis the liability of a negligent defendant. Then, covered, is capable of averting it." too, it was difficult in practice to distinguish WILLS. " Do Legacies Bear Interest in between the failure to take care where the Illinois," by Albert M. Kales, Illinois Law plaintiff's danger and his inability to help Review (V. ii, p. 440).