THE MODERN CONCEPTION OF ANIMUS However this may be as a speculation, law yers have to deal with the law as it stands. Probably the opposition to a series of sweeping enactments throughout the Union, drawn in the spirit of the National Em ployers' Liability Act and designed to over turn the doctrine of contributory negligence, would meet with such opposition that this would prove not to be a practicable path toward relief. The tendency seems rather in the direc tion of government inspection and control; toward boards empowered to enforce an expenditure upon track and equipment ade quate to ensure a definite standard of effi ciency. Obviously such legislation, like the "Safety Appliance Act," the "Pure Food Act," and the "Meat Inspection Act," would vastly expand the Federal jurisdiction by giving the national government authority to enforce an expenditure of what has, hitherto, been deemed private income, for public purposes, without compensation and without the owner's consent. The developments of the future lie be yond the limits of this article. To-day I wish to confine myself to recommending to you a certain method of analysis when attacking legal problems. I refer to the initial process of separating the matter to be proved from the evidence by which you shall prove it. I apprehend that usually, in your practice, you will find the thing you have to prove is a mental condition, how ever veiled the issue may be by circum stances. If this proposition be sound the problem which will demand your promptest attention will be to investigate how freely the courts will admit testimony to show that mental condition, or how completely they will exclude the adversary's testimony upon your objection. At the risk of being prolix, I shall illus trate my meaning by examining one or two famous cases, which have been often cited as instances where the courts have excluded evidence of animus in negligence and held defendants to an absolute accountability.
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The first of these is Rylands v. Fletcher, L. R. 3 H. L. C. 330. There a flood occurred because of a break in a reservoir, caused by certain disused shafts which had been sunk in neighboring property. The chancellor held that evidence of proper construction was im material, that the defendant was bound to keep safely a dangerous substance which he had collected on his land, and that he should have known of the existence of the shafts. Nothing can be plainer than that this decision only excluded a certain class of testimony to prove a blameless animus. Had the defendant's evidence tended to show that the reservoir being originally of sound construction, its masonry had been shattered by the use of explosives in the plaintiff's shafts, and that because of this injury the flood ensued, I suppose that the testimony would have been held to be material. Another example is Shipley v. Fifty Associates, 101 Mass. 251. There it appeared that the plaintiff when walking in a public street had been injured by snow falling from the defendant's house. The defendant wished to prove, as evidence of blamelessness, that his house was properly constructed and that the snow fell from natural and unpreventable causes. The court held him liable for the injury, reject ing the testimony he offered as immaterial. The issue again is plain. It was the char acter of the defendant's animus toward his neighbor. Having built a house upon a public street where all men freely walked, the defendant had not fulfilled his duty by leaving a dangerous mass of matter upon his roof whence it might fall and injure the passer. If he so built his house, he was bound to remove the snow. Not to do so was blameworthy. Here again I appre hend the relations of the parties would have been changed, had the defendant been pre pared to show that his house stood back from the street, and that the plaintiff had been injured when walking upon the defen dant's land.
