So far, we have looked at “how do we tell if someone is negligent?” Now, we are adding some other ways to determine if others are negligent.

Pokora v. Wabash Ry. Co.

292 U.S. 98 (1934).


Should there be an exception to the rule.


Previous rule was to stop, get out of the car, look both ways, listen, before moving on. Here, the court provides an exception for when the view might be obstructed.


There is an exception to the rule, judgment reversed.


Pokora is the defendant for contributory negligence claim. He had stopped at a railroad, looked both ways, and continued to drive. Out of nowhere, he was hit by a train. He sued for damages and the rail company countered.


He cannot be expected to follow the rule in this case because it is unreasonable. How can he be expected to stop his car, get out, and survey the area while he was already in the zone of danger? He can’t, the rule should not have been made in such a way and this can serve as an exception.


Rules change over time. Sometimes the exceptions become so vast as to override the rule.

Additional Notes

This case was connected to an earlier case, Goodman. There may be circumstances where one would need to get out of the car, not just stop, look and listen. That was another case by the Supreme Court. Other courts had determined that this decision was a rule of law instead of a potential conditional obligation. So, the court revisited it saying that this was not a rule of law. It would be unreasonable to ask somebody to follow this rule when they may already be in the zone of danger. Therefore, the “rule” should and is now limited.

per se means “as a matter of law”.

Some courts want to say “we want to give clarity to the law, so we’re announcing what the rule is.” A lot of cases may meet these rules, however, several extreme circumstances may then make exceptions to the rule. This is the principle Pokora is trying to establish.

So, how do we determine whether an actor’s conduct is reasonable? There are four sources

  • Case-by-case analysis through common law where the jury is given an instruction on how a reasonable person should act. Thus far, most of our discussion has related to this analysis.
  • Rule of law as declared by the court, see Pokora.
  • Statute specifies what constitutes due care, AND provides for a cause of action to those injured by its breach. A good example of these are dram shop laws.
    • Here is how a statute may affect the reasonable person analysis
      • A duty is created by the law.
      • A third party is injured by the drunk person
      • Statute gives a right of action to the third party
      • The statutory standard for a reasonable person AND cause of action created for person injured by statutory violation.
  • Violation of statute leads rise to negligence per se. This leads into our next discussion on our article on violation of statutes.

Summed up: reasonable person as a standard of care is determined through:

  1. Common law
  2. Rule of Law
  3. Duty by statute
  4. Applied violation of statute as negligence per se


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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