Opinion by

Mr. Justice Drew,

This is an action in trespass in which plaintiff recovered a verdict and judgment. On appeal, the Superior Court reversed the judgment on the ground that plaintiff was guilty of contributory negligence, and entered judgment n. o. v. for defendant Sneller, he alone having appealed. This appeal was then specially allowed.

The opinion of the learned Superior Court, written by Judge IIirt, reported at 147 Pa. Superior Ct. 231, accurately states the facts as follows: “Plaintiff, while engaged in a house to house canvass as a salesman of small articles, was injured in falling into an open trench in the west sidewalk of North Fifth Street in the City of Philadelphia. Defendant Sneller, a plumber, under contract to make a sewer connection with one of the houses on the street, had entered into an agreement with defendant Lomastro under which the latter did the neces*70sary digging. A section of the concrete sidewalk had been removed and Lomastro’s men were in the trench at the time of plaintiff’s injury. The trench then extended from the curb across the sidewalk, three or four feet wide, and had been dug to a depth of seven or eight feet. The earth from the excavation had been thrown upon the sidewalk along both sides of the trench. Plaintiff was walking northwardly on the sidewalk. On the far side of the trench as he approached it, there was a barricade but along the side nearest him there was only the pile of excavated material between him and the trench, about two feet high according to the only testimony on the subject. Plaintiff, because of defective eyesight, did not see the pile of earth and had no notice that it was there until he felt it under his feet as he walked upon it. The loose material slipped from under him causing him to lose his footing and he fell into the trench.”

The opinion of the Superior Court continues: “Sympathetic as we are to the plaintiff in his effort to make a living in spite of his physical handicap, we think it clear that he did not present a ease free from contributory negligence . . . There is no doubt as to the degree of impairment of plaintiff’s vision. He could perceive light and, under favorable conditions, objects, but could not distinguish them. His sight was so impaired that his reference to himself in his statement of claim as a ‘blind person’ is an accurate appraisal, for all practical purposes, of his ability to see. He was somewhat familiar with the neighborhood and he managed to go about without an attendant, guided by the sky line of the buildings and was able to keep on the sidewalk by means of the poles and trees along the curb or hedges marking the property lines. These, under favorable light conditions, he was able to see dimly. When on the witness stand on the trial of this case, however, he could not see the trial judge nor an examiner who was within five feet of him nor the foreman of the jury six feet away.

“Describing what occurred just before his injury, plaintiff said: ‘I was walking along very carefully *71there; there was a hedge and of course some trees that I use as markers, and I felt a break in the paving, and felt some dirt, and my foot started to go down a little bit and then gave way and I could not hold my balance and fell in there. I didn’t get directly into the hole but stepped on the edge of the dirt embankment there, and that gave away and I went in.’ He did not carry a cane and, because he was unable to see, did not have notice of the break in the pavement, the pile of earth on the sidewalk, nor the open trench in front of him. The injury occurred in the early afternoon of July 1, 1940, a bright summer day. But for his blindness he also would have seen a barricade along the north side of the trench.”

The Superior Court said further: “Under somewhat similar circumstances, recovery was denied a blind plaintiff, who fell into an open cellarway extending into the sidewalk, in Fraser, Appellant, v. Freeman, 87 Pa. Superior Ct. 454, in which Judge Porter said: “The law requires a degree of care upon the part of one whose eye-sight is impaired proportioned to the degree of his impairment of vision. He is bound to use the care which would be exercised by an ordinary prudent person, and in passing upon the question of his negligence due consideration should be given to blindness or other infirmities. In the exercise of common prudence one of defective eye-sight must usually, as a matter of general knowledge, take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions; in order to reach the standard established by law for all persons alike, whether they be sound or deficient. The statement that a blind or deaf man is bound to a higher degree of caution than a normal person does not mean that there is imposed upon him a higher standard of duty, but rather that in order to measure up to the ordinary standard he must the more vigilantly exercise caution through other senses and other means, in order to compensate for the loss or impairment of those senses in which he is defective; Karl v. Juniata County, 206 Pa. 633; Flynn *72 v. Railway Co., 234 Pa. 335; Krenn v. Pittsburgh, C., C. & St. L. Ry. Co., 259 Pa. 443; Keith v. Worcester, 196 Mass. 478.’ ”

We cannot escape the conclusion of the! Superior Court that the instant case is ruled by the Fraser case. While it is not negligence per se for a blind person to go unattended upon the sidewalk of a city, he does so at great risk and must always have in mind his own unfortunate disadvantage and do what a reasonably prudent person in his situation would do to ward off danger and prevent an accident. The fact that plaintiff did not anticipate the existence of the ditch across the sidewalk, in itself, does not charge him with negligence. But, it is common knowledge, chargeable to plaintiff, that obstructions and defects are not uncommon in the sidewalks of a city, any one of which may be a source of injury to the blind. Plaintiff’s vision was so defective that he could not see a dangerous condition immediately in front of him. In such circumstances he was bound to take precautions which one not so afflicted need not take. In the exercise of due care for his own safety it was his duty to use one of the common, well-known compensatory devices for the blind, such as a cane, a “seeing-eye” dog, or a companion. These are a poor substitute for sight, but any one of them would probably have been sufficient to prevent this accident. Plaintiff’s conduct was not equal to the degree of care required of him. The Superior Court very properly said: “A blind man may not rely wholly upon his other senses to warn him of danger but must use the devices usually employed, to compensate for his blindness. Only by so doing can he go about with comparative safety to himself.” We are in accord with that learned court, that plaintiff was guilty of contributory negligence as a matter of law, and we must, therefore, affirm the judgment.

Judgment affirmed.

Loevinger, Justice.

This case arises out of a personal injury to Jeanette E. Dellwo, one of the plaintiffs. She and her husband, the other plaintiff, were fishing on one of Minnesota’s numerous and beautiful lakes by trolling at a low speed with about 40 to 50 feet of line trailing behind the boat. Defendant, a 12-year-old boy, operating a boat with an outboard motor, crossed behind plaintiffs’ boat. Just at this time Mrs. Dellwo felt a jerk on her line which suddenly was pulled out very rapidly. The line was knotted to the spool of the reel so that when it had run out *453the fishing rod was pulled downward, the reel hit the side of the boat, the reel came apart, and part of it flew through the lens of Mrs. Dell-wo’s glasses and injured her eye. Both parties then proceeded to a dock where inspection of defendant’s motor disclosed 2 to 3 feet of fishing line wound about the propeller.

The case was fully tried to the court and jury and submitted to the jury upon instructions which, in so far as relevant here, instructed the jury that: (1) In considering the matter of negligence the duty to which defendant is held is modified because he is a child, a child not being held to the same standard of conduct as an adult and being required to exercise only that degree of care which ordinarily is exercised by children of like age, mental capacity, and experience under the same or similar circumstances; (2) “A person guilty of negligence is liable for all consequences which might reasonably have been foreseen as likely to result from one’s negligent act or omissions under the circumstances; * * * .A wrongdoer is not responsible for a consequence which is merely possible according to occasional experience, but only for a consequence which is probable according to ordinary and usual experience”; and (3) plaintiff could not recover if she was guilty of contributory negligence. Several hours after the jury retired it returned and asked for additional instructions with respect to “foreseeable responsibility” and “the responsibility of a youngster compared to a more mature person.” The court thereupon repeated the instructions relating to negligence, the standard of care, and proximate cause, including the language quoted above.

The jury returned a general verdict for defendant, and plaintiffs appeal. Plaintiffs contend that the trial court erred in its instruction that a defendant is not responsible for unforeseen consequences of negligence and in submitting the issue of contributory negligence to the jury.

The instruction of the trial court limiting liability for negligence to foreseeable consequences was a part of the instruction on proximate cause and, in effect, made foreseeability a test of proximate cause.

There is no subject in the field of law upon which more has been written with less elucidation than that of proximate cause. Cases discussing it are legion. It has challenged many of the most able com*454mentators at one time or another.1 It is generally agreed that there is no simple formula for defining proximate cause, but this is assumed to be a difficulty peculiar to the law, which distinguishes between “proximate cause” and “cause in fact.”2 However, examination of the literature suggests that neither scientists nor philosophers have been more successful than judges in providing a verbal definition for this concept.3 We can contrast the concept of cause with that of destiny and of chance, we can use it operationally and pragmatically, but we cannot formulate a precise, rigorous, or very satisfactory verbal definition. Cause seems to be one of those elemental concepts that defies refined analysis but is known intuitively to commonsense.4

Although a rigorous definition of proximate cause continues to elude *455us, nevertheless it is' clear, in this state at least, that it is not a matter of foreseeability. We are unable now to make any better statement on this issue than that of Mr. Justice Mitchell many years ago. Speaking for this court, he said:

“It is laid down in many cases and by some text writers that, in order to warrant a finding that negligence (not wanton) is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent act, and that it (the injury) was such as might or ought, in the light of attending circumstances, to have been anticipated. Such or similar statements of law have been inadvertently borrowed and repeated in some of the decisions of this court, but never, we think, where the precise point now under consideration was involved. Hence such statements are mere obiter. The doctrine contended for by counsel would establish practically the same rule of damages resulting from tort as is applied to damages resulting from breach of contract, under the familiar doctrine of Hadley v. Baxendale, 9 Exch. 341. This mode of stating the law is misleading, if not positively inaccurate. It confounds and mixes the definition of ‘negligence’ with that of ‘proximate cause.’

“What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues. If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from.it, although he could not have anticipated the particular injury which did happen. Consequences Which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer ’ is responsible, even *456though he could not have foreseen the particular results which did follow.”5

Although language may be found in some opinions dealing with the specific facts of particular cases that seems to be at variance with the statement of Mr. Justice Mitchell, this court has consistently through the years followed the doctrine thus enunciated.6 We now reaffirm that the doctrine of the Christianson case is still the law of Minnesota and, in the words of Mr. Justice Stone, decline the invitation of this case to add further to the already excessive literature of the law dealing, or attempting to deal, with the problem of proximate cause.7 It is enough to say that negligence is tested by foresight but proximate cause is determined by hindsight.

It follows that the trial court erred in making foreseeability a test of proximate cause. There can be no question that this was misleading to the jury and therefore prejudicial to the plaintiffs, requiring reversal of the judgment.8

Since the case must be retried, it is appropriate for us to indicate the principles which should govern the submission upon a second trial.9 The trial court in its instructions referred to “unforeseeable accidents.” There was nothing in the record of the present case to invoke the doctrine of “unavoidable accidents,” and, in view of what has been said, *457foreseeability was not properly a part of the instruction on proximate cause. It would appear desirable, therefore, to avoid the use of this phrase which might well be misleading to the jury.

Although the evidence may be different upon a second trial, there is nothing in the record before us to justify submission of the issue of contributory negligence. Unless there is such evidence upon a second trial, the instruction as to contributory negligence should not be given.

A more important point involves the instruction that defendant was to be judged by the standard of care of a child of similar age rather than of a reasonable man. There is no doubt that the instruction given substantially reflects the language of numerous decisions in this and other courts.10 However, the great majority of these cases involve the issue of contributory negligence and the standard of care that may properly be required of a child in protecting himself against some hazard.11 The standard of care stated is proper and appropriate for such situations.

However, this court has previously recognized that there may be a difference between the standard of care that is required of a child in protecting himself against hazards and the standard that may be applicable when his activities expose others to hazards.12 Certainly in the circumstances of modem life, where vehicles moved by pow*458erful motors are readily available, and frequently operated by immature individuals, we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.13

To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults. While minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others. A person observing children at play with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood activities may anticipate conduct that does not reach an adult standard of care or prudence.14 However, one cannot know whether the operator of an approaching automobile, airplane, or powerboat is a minor or an adult, and usually cannot protect himself against youthful imprudence even if warned. Accordingly, we hold that in the operation of an automobile, airplane, or powerboat, a minor is to be held to the same standard of care as an adult.

Undoubtedly there are problems attendant upon such a view. However, there are problems in any rule that may be adopted applicable *459to this matter. They will have to be solved as they may present themselves in the setting of future cases. The latest tentative revision of the Restatement of Torts proposes an even broader rule that would hold a child to adult standards whenever he engages “in an activity which is normally undertaken only by adults, and for which adult qualifications are required.”15 However, it is unnecessary to this case to adopt a rule in such broad form, and, therefore, we expressly leave open the question whether or not that rule should be adopted in this state. For the present it is sufficient to say that no reasonable grounds for differentiating between automobiles, airplanes, and powerboats appears, and that a rule requiring a single standard of care in the operation of such vehicles, regardless of the age of the operator, appears to us to be required by the circumstances of contemporary life.

Reversed and remanded for a new trial.

Hallows, C. J.

There is no question that Erma Yeith was subject at the time of the accident to an insane delusion which directly affected her ability to operate her car in an ordinarily prudent manner and caused the accident. The specific question considered by the jury under the negligence inquiry was whether she had such foreknowledge of her susceptibility to such a mental aberration, delusion or hallucination as to make her negligent in driving a car at all under such conditions.

At the trial Erma Yeith testified she could not remember all the circumstances of the accident and this was confirmed by her psychiatrist who testified this loss of memory was due to his treatment of Erma Veith for her mental illness. This expert also testified to what Erma Veith had told him but could no longer recall. The evidence established that Mrs. Veith, while returning home after taking her husband to work, saw a white light on the back of a car ahead of her. She followed this light for three or four blocks. Mrs. Veith did not remember anything else except landing in a field, lying on the side of the road and people talking. She recalled awaking in the hospital.

The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed that God was taking ahold of the steering wheel and was directing her car. She saw the truck coming and stepped on the gas in order to become airborne because she knew she could fly because Batman does it. To her surprise she was not airborne before striking the truck but after the impact she was flying.

*540Actually, Mrs. Veith’s car continued west on Highway 19 for about a mile. The road was straight for this distance and then made a gradual turn to the right. At this turn her car left the road in a straight line, negotiated a deep ditch and came to rest in a cornfield. When a traffic officer came to the car to investigate the accident, he found Mrs. Veith sitting behind the wheel looking off into space. He could not get a statement of any kind from her. She was taken to the Methodist Hospital and later transferred to the psychiatric ward of the Madison General Hospital.

The psychiatrist testified Erma Veith was suffering from “schizophrenic reaction, paranoid type, acute.” 1 He stated that from the time Mrs. Veith commenced following the car with the white light and ending with the stopping of her vehicle in the cornfield, she was not able to operate the vehicle with her conscious mind and that she had no knowledge or forewarning that such illness or disability would likely occur.

The insurance company argues Erma Veith was not negligent as a matter of law because there is no evidence upon which the jury could find that she had knowledge or warning or should have reasonably foreseen that she might be subject to a mental delusion which would suddenly cause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and also suggests Erma Veith should be liable because insanity should not be a defense in negligence cases.

The case was tried on the theory that some forms of insanity are a defense to and preclude liability for negli*541gence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis. 2d 91, 118 N. W. 2d 140, 119 N. W. 2d 398. We agree. Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity. The effect of the mental illness or mental hallucinations or disorder must be such as to affect the person’s ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or if the insanity does not affect such understanding and appreciation, it must affect his ability to control his car in an ordinarily prudent maimer. And in addition, there must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness.

In Theisen we recognized one was not negligent if he was unable to conform his conduct through no fault of his own but held a sleeping driver negligent as a matter of law because one is always given conscious warnings of drowsiness and if a person does not heed such warnings and continues to drive his car, he is negligent for continuing to drive under such conditions. But we distinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an outside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly incapacitates the driver of an automobile when the occurrence of such disability is not attended with sufficient warning or should not have been reasonably foreseen.

Theisen followed Eleason v. Western Casualty & Surety Co. (1948), 254 Wis. 134, 135 N. W. 2d 301, and Wisconsin Natural Gas Co. v. Employers Mut. Liability Ins. Co. (1953), 263 Wis. 633, 58 N. W. 2d 424. In Eleason we held the driver, an epileptic, possessed knowledge that he was likely to have a seizure and therefore was negligent in driving a car and responsible for the accident occurring while he had an epileptic seizure. In Wisconsin Natural *542 Gas Co. v. Employers Mut. Liability Ins. Co., supra, the sleeping driver possessed knowledge that he was likely to fall asleep and his attempts to stay awake were not sufficient to relieve him of negligence because it was within his control to take effective means to stay awake or cease driving.

There are authorities which generally hold insanity is not a defense in tort cases except for intentional torts. Restatement, 2 Torts, 2d, p. 16, sec. 283 B, and appendix (1966) and cases cited therein. These cases rest on the historical view of strict liability without regard to the fault of the individual. Prosser, in his Law of Torts (3d ed.), p. 1028, states this view is a historical survival which originated in the dictum in Weaver v. Ward (1616), Hob. 134, 80 English Reports 284, when the action of trespass still rested upon strict liability. He points out that when the modern law developed to the point of holding the defendant liable for negligence, the dictum was repeated in some cases.2

The policy basis of holding a permanently insane person liable for his tort is: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. These three grounds were mentioned in the Guardianship of Meyer (1935), 218 Wis. 381, 261 N. W. 211, where a farm hand who was insane set fire to his employer’s barn. The insurance company paid the loss and filed a claim against the estate of the insane person and was allowed to recover.

In an earlier Wisconsin case involving arson, the same view was taken. Karow v. Continental Ins. Co. (1883), *54357 Wis. 56, 64, 15 N. W. 27, 30. But it was said in Karow that an insane person cannot be said to be negligent. The cases holding an insane person liable for his torts have generally dealt with pre-existing insanity of a permanent nature and the question here presented was neither discussed nor decided. The plaintiff cites Sforza v. Green Bus Lines, Inc. (1934), 150 Misc. 180, 268 N. Y. Supp. 446; Shapiro v. Tchernowitz (1956), 3 Misc. 2d 617, 155 N. Y. Supp. 2d 1011; Johnson v. Lambotte (1961), 147 Colo. 203, 363 Pac. 2d 165, for holding insanity is not a defense in negligence cases. Sforza and Shapiro are New York trial court decisions which do not discuss the question here presented and are unconvincing. In Johnson, the defendant was under observation by order of the county court and was being treated in a hospital for “chronic schizophrenic state of paranoid type.” On the day in question, she wanted to leave the hospital and escaped therefrom and found an automobile standing on a street with its motor running a few blocks from the hospital. She got into the car and drove off, having little or no control of the car. She soon collided with the plaintiff. Later she was adjudged mentally incompetent and committed to a state hospital. Johnson is not a case of sudden mental seizure with no forewarning. The defendant knew she was being treated for a mental disorder and hence would not have come under the nonliability rule herein stated.

We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he *544is incapable of avoiding and which incapability was unknown to him prior to the accident.

We need not reach the question of contributory negligence of an insane person or the question of comparative negligence as those problems are not now presented.3 All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.

An interesting case holding this view in Canada is Buckley & Toronto Transportation Comm. v. Smith Transport, 1946 Ont. Rep. 798, 4 Dom. L. Rep. 721, which is almost identical on the facts with the case at bar. There, the court found no negligence when a truck driver was overcome by a sudden insane delusion that his truck was being operated by remote control of his employer and as a result he was in fact helpless to avert a collision.

The insurance company argues that since the psychiatrist was the only expert witness who testified concerning the mental disability of Mrs. Veith and the lack of forewarning that as a matter of law there was no forewarning and she could not be held negligent; and the trial court should have so held. While there was testimony of friends indicating she was normal for some months prior to the accident, the psychiatrist testified the origin of her mental illness appeared in August, 1965, prior to the accident. In that month Mrs. Veith visited the Ne-cedah Shrine where she was told the Blessed Virgin had sent her to the shrine. She was told to pray for survival. Since that time she felt it had been revealed to her the end of the world was coming and that she was picked by God to survive. Later she had visions of God judging people and sentencing them to Heaven or Hell; she thought Batman was good and was trying to help save the *545world and her husband was possessed of the devil. Mrs. Veith told her daughter about her visions.

The question is whether she had warning or knowledge which would reasonably lead her to believe that hallucinations would occur and be such as to affect her driving an automobile. Even though the doctor’s testimony is un-contradicted, it need not be accepted by the jury. It is an expert’s opinion but it is not conclusive. It is for the jury to decide whether the facts underpinning an expert opinion are true. Dreher v. United Commercial Travelers (1921), 173 Wis. 173, 179, 180 N. W. 815; Bucher v. Wisconsin Central Ry. (1909), 139 Wis. 597, 611, 120 N. W. 518; Massachusetts Bonding & Ins. Co. v. Industrial Comm. (1959), 8 Wis. 2d 606, 610, 99 N. W. 2d 809. The jury could find that a woman, who believed she had a special relationship to God and was the chosen one to survive the end of the world, could believe that God would take over the direction of her life to the extent of driving her car. Since these mental aberrations were not constant, the jury could infer she had knowledge of her condition and the likelihood of a hallucination just as one who has knowledge of a heart condition knows the possibility of an attack. While the evidence may not be strong upon which to base an inference, especially in view of the fact that two jurors dissented on this verdict and expressly stated they could find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury need not constitute the great weight and clear preponderance.

The insurance company claims the jury was perverse because the verdict is contrary both to the evidence and to the law. We think this argument is without merit. For a verdict to be perverse, there must be something to warrant a finding that considerations which were ulterior to a reasonably fair application of the judgment of the jury to the evidence under the court’s instructions *546controlled or materially influenced the jury. Brown v. Montgomery Ward & Co. (1936), 221 Wis. 628, 267 N. W. 292; see Grammoll v. Last (1935), 218 Wis. 621, 261 N. W. 719.

It is argued the jury was aware of the effect of its answer to the negligence question because the jury after it started to deliberate asked the court the following question: “If Mrs. Veith is found not negligent, will it mean Mr. Breunig will receive no compensation?” The jury was not instructed on the effect of its answer. It has not been held that because a jury knew the effect of its answer that its verdict was perverse. Lawyers and judges are not so naive as to believe that most juries do not know the effect of their answers. The error is in instructing or telling the jury the effect of their answer with the exception which was made by this court on the basis of public policy in State v. Shoffner (1966), 31 Wis. 2d 412, 143 N. W. 2d 458, wherein we stated that it was proper for the court when the issue of insanity is litigated in a criminal case to tell the jury that the defendant will not go free if he is found not guilty by reason of insanity.

The defendant insurance company argues it did not receive a fair trial because: (1) The court engaged in extensive questioning of witnesses which amounted to interference; and (2) the court’s manner during the trial indicated to the jury his disapproval of the defense. It is true the court interjected itself into the questioning of witnesses. In some instances the court was trying to clarify medical testimony but in other instances the court interjected itself more than was necessary under the circumstances. However, this is not necessarily a basis for reversal. A trial judge is not a mere moderator or a referee; but conversely, his duty is not to try the case but to hear it. He must control the conduct of the trial but he is not responsible for the proof. We have also said that litigants are entitled to a fair trial but the judge does not have to enjoy giving it. Keplin v. Hardware Mnt. *547 Casualty Co. (1964), 24 Wis. 2d 319, 129 N. W. 2d 321, 130 N. W. 2d 3.

That seems to be the situation in the instant case. At the initial conference in chambers outside the presence of the jury, the trial judge made it clear he had no sympathy with the defendant’s position and criticized the company for letting the case go to trial rather than paying the claim. On other occasions, outside the hearing of the jury, the court evidenced his displeasure with the defense and expressed his opinion that the insurance company should have paid the claim. However, he stated he was going to try not to say a word before the jury which would hint that the insurance company was “chincy.” The trial judge may have been upset in chambers but he was careful not to go back on the bench until he had regained his composure.

The responsibility for an atmosphere of impartiality during the course of a trial rests upon the trial judge. His conduct in hearing the case must be fair to both sides and he should refrain from remarks which might injure either of the parties to the litigation. Hansen v. St. Paul City Ry. (1950), 231 Minn. 354, 43 N. W. 2d 260. Since a trial is and should be an adversary proceeding, the trial judge should take care not to be thrown off balance by his own emotions or by provocations of counsel. Because of the tremendous influence which the trial judge has on the jury by his conduct, his facial expressions, his inflexion in the pronouncement of words, and his asking questions of a witness, it is most important for a judge to be sensitive to his conduct. Swonger v. Celentano (1962), 17 Wis. 2d 303, 116 N. W. 2d 117.

Most judges do their utmost to maintain a poker face, an unperturbable mind and a noncommittal attitude during a contested trial, but judges are human and their emotions are influenced by the same human feelings as other people. Perhaps no judge during a hard-fought *548trial can remain completely indifferent, especially if the case is one which he thinks ought not to be tried.

In respect to the excessive examination by the court of the witnesses we think there is no ground for reversal although we do not approve of the procedure. See Reuling v. Chicago, St. P., M. & O. Ry. (1950), 257 Wis. 485, 44 N. W. 2d 253. In respect to remarks of the judge, these were out of hearing of the jury and, consequently, to prejudice the jury there must be some evidence in the record that the jury “got the word.”

The insurance company seems to argue the judge admitted on motions after verdict that the jury got the word when he said, “You will have to find it in the record, you will have to put my facial expressions into the record some way.” This statement is not an admission by the judge that he did by facial expressions indicate to the jury his feelings of the case. He expressly stated he thought he did not reveal his convictions during the trial. The judge’s statement went to the type of proof necessary to be in the record on appeal.

Misconduct of a trial judge must find its proof in the record. The cold record on appeal fails to record the impressions received by those present in the courtroom. Facial expression, tonal quality, stares, smiles, sneers, raised eyebrows, which convey meaning and perhaps have more power than words to transmit a general attitude of mind are lost when testimony is put in writing. Facial expressions and gestures of a judge cannot appear in a record on appeal unless the trial lawyer makes them part of the record in some way. Like alleged errors, counsel should, when objectionable expressions and gestures occur, ask to make a record thereof and take exception to the tone, facial expression and gesture, give a proper description thereof, and perhaps move if serious for a mistrial. This court would be speculating if it were to say that this jury was prejudiced when we do not know what they saw or what they felt about the conduct of the trial by the trial judge.

*549On motions after verdict the court reduced the damages from $10,000 to $7,000 and gave the plaintiff an “election, within 30 days, to accept the judgment in the sum of $7,000 plus costs or in the alternative a new trial.” This is not quite the form this court has now recommended to apply the Powers rule. Powers v. Allstate Ins. Co. (1960), 10 Wis. 2d 78, 102 N. W. 2d 393. See Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. 2d 568, 117 N. W. 2d 660; modified in Wells v. National Indemnity Co. (1968), 41 Wis. 2d 1, 162 N. W. 2d 562. We have said several times that the order should grant a new trial unless within a given time the plaintiff is willing to accept the reduced amount and file a remittitur. In the present case there was no requirement to do this in writing. The plaintiff orally elected to accept the lower amount within the thirty days but filed no written re-mittitur. Subsequently, the trial court allowed the filing of the remittitur and judgment accordingly was entered upon the reduced verdict. We think it is within the discretion of the trial court in view of the way in which the option was formulated to allow the plaintiff to comply with the formal requirements of filing a remittitur when the plaintiff had notified counsel and the court orally that he would accept the option.

The plaintiff by way of review argues that the court erred in reducing the damages awarded from $10,000 to $7,000. Although the plaintiff has accepted the reduction of damages, he may have this court review the trial court’s ruling when the defendant appeals. Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. 2d 571, 127 N. W. 2d 741; Bash v. Employers Mut. Liability Ins. Co. (1968), 38 Wis. 2d 440, 157 N. W. 2d 634. No good purpose would be served in extending this opinion with a review of the evidence concerning damages. The trial court’s finding that a jury’s award is excessive or inadequate will be reversed only when this court can find an abuse of discretion. Lucas v. State Farm Mut. Automobile Ins. Co., supra; Moritz v. Allied American Mut. *550 Fire Ins. Co. (1965), 27 Wis. 2d 13, 133 N. W. 2d 235. Since the trial court did not analyze the evidence, it was incumbent upon this court to review the testimony relating to damages. We think $10,000 is not sustained by the evidence. It is immaterial that the trial court in reducing the damages to $7,000 gave a reason which would not sustain the reduction.

By the Court. — Judgment affirmed.

L. HAND, Circuit Judge.

These appeals concern the sinking of the barge, “Anna C,” on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, “Carroll,” of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge’s cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, “Anna C,” to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a bargee, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, “Carroll,” sent her down to the locus in quo to “drill” out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the “Carroll” at the time were not only her master, but a “harbormaster” employed by the Grace Line. Before throwing off the line between the two tiers, the “Carroll” nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines “slow ahead” against the ebb tide which was making at that time. The captain of the “Carroll” put a deckhand and the “harbormaster” on the barges, told them to throw off the line which barred the entrance to the slip; *171but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The “harbormaster" and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the “Anna C,” to the pier.

After doing so, they threw off the line between the two tiers and again boarded the “Carroll,” which backed away from the outside barge, preparatory to “drilling” out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the “Anna C,” either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the “Anna C” fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, “Grace,” owned by the Grace Line, and the “Carroll,” came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the “Anna C” afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the “harbormaster” was not authorized to pass on the sufficiency of the fasts of the “Anna C” which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the “harbormaster” was given an over-all authority. Both wish to charge the “Anna C” with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the “harbormaster’s” authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an “employee,” in his second conclusion of law he held that the Grace Line was “responsible for his negligence.” Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the “harbormaster” showed that he was authorized to pass on the sufficiency of the fasts of the “Anna C.” He said that it was part of his job to tie up barges;- that when he came “to tie up a barge” he had “to go in and look at the barges that are inside the barge” he was “handling”; that in such cases “most of the time” he went in “to see that the lines to the inside barges are strong enough to hold these barges”; and that “if they are not” he “put out sufficient other lines as are necessary.” That does not, however, determine the other question: i. e., whether, when the master of the “Carroll” told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the “harbormaster” to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: “The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so.” Whatever doubts the testimony of the “harbormaster” might raise, this finding settles it for us that the master of the “Carroll” deputed the deckhand and the “harbormaster,” jointly to pass upon the sufficiency of the “Anna C’s” fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,1 was against the tug there held liable, because the tug had only acted under the express orders of the “harbormaster.” Here, although the relations were reversed, that makes no difference in principle; and the “harbormaster” was not instructed what he should do about the fasts, but was allowed *172to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

We cannot, however, excuse the Conners Company for the bargee’s failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the “harbormaster” jointly undertook to pass upon the “Anna C’s” fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the “harbormaster” would have paid any attention to any protest which he might have made, had he been there. We do' not therefore attribute it as in any degree a fault of the “Anna C” that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker’s propeller, which we shall speak of as the “collision damages.” On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the “Carroll” and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the “sinking damages.” Thus, if it was a failure in the Conner Company’s proper care of its own barge, for the bargee to be absent, the company can recover only one third of the “sinking” damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As,to the consequences of a bargee’s absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,2 held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,3 treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,4 held liable for damage to a stake-boat, a barge moored to the stake-boat “south of Liberty Light, off the Jersey shore,” because she had been left without a bargee; indeed he declared that the bargee’s absence was “gross negligence.” In the Kathryn B. Guinan,5 Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee’s absence would not be the basis for the owner’s negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,6 Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York,7 the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree,8 but for another reason. In The Sadie,9 we affirmed Judge Coleman’s holding10 that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the *173inside barge. In The P. R. R. No. 216,11 we charged with liability a lighter which broke loóse from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian,12 as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter’s lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 2313 went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,14 we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bar-gee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williams-burgh Power Plant Corporation15, we charged a scow with half damages because her bargee left her without adequate precautions. In O’Donnell Transportation Co. v. M. & J. Tracy,16 we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having “left the vessel to go ashore for a time on his own business.”

It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in “The Kathryn B. Guinan,” supra;17 and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence *174that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly “drilled” in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold— and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was im-pleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full “collision damages”, and half “sinking damages,” and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for “collision damages” will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for “sinking damages” being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the “collision damages” and for one sixth the “sinking damages.” If the fund be large enough, the result will be to throw one half the “collision damages” upon the Grace Line and one half on the Carroll Company; and one third of the “sinking damages” on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll' Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

RIVES, Circuit Judge.

The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.

Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.

In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee’s bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.

• At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.1 Other evidentiary *329facts are stated in some detail in the opinion of the district court reported in 162 F.Supp. at page 203 et seq.

After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently^ aggravating the danger. The appellee,, incorporated under the laws of Florida,, being sued by citizens and subjects of *330Great Britain, had the case removed to the United States District Court for the Eastern District of New York.2 That Court transferred the action to the United States District Court for the Northern District of Florida.3

There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:

“In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the Florida Supreme Court held that a carrier was not liable to a passenger for an unprovoked and illegal assault in cases such as this case. Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the ease cited above.

“Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.”

Bullock v. Tamiami Trail Tours, D.C. N.D.Fla.1958, 162 F.Supp. 203, 205.

We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the “clearly erroneous” rule, Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.

In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:

“The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command. 4 R.C.L. 1185.

“In guarding a passenger from a danger which is not usual or not incident to ordinary travel the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must have been of such character and inflicted under such circumstances as that it might *331have been reasonably anticipated or naturally expected to occur.” (Italics supplied.) 93 So. at pages 156-157.

In Kenan v. Houstoun, 1952, 150 Fla. 357, 7 So.2d 837, 838, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:

“ * * * When it appears that the agency which caused the injury was other than defendant or its agents the plaintiff must prove that defendant knew or by the exercise of ordinary care could have known of it in time to remove the cause of the injury. 10 Am.Jur. 173, Chesapeake & O. Ry. Co. v. Burton, 4 Cir., 50 F.2d 730, 731.

“It is settled law that under the facts stated the Florida East Coast was bound to furnish Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but unless said company or its agents were in some way responsible or could have foreseen and prevented the accident, it cannot be held responsible for injury caused by the negligent act of a third person. In this case, the L. and N. Railway was the third person and we think was responsible for the accident. It was in no way attributable to the negligence of petitioner nor do we know of any criterion by which it could have been put on notice of it. It had not happened before and the character of it was of such a nature that it could not have been reasonably foreseen.” (Italics supplied.)

Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been “reasonably anticipated” or “naturally expected to occur” or “reasonably foreseen” in time to have prevented the injury. [84 Fla. 9, 93 So. 157.] If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.4

It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.

The first driver testified that many people in West Florida would not approve of the Bullocks’ being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like “they probably will move on down the line.” Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.5 Certainly, the first driver *332and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with “southern tradition.” All of the appellee’s witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.

Furthermore, this Court will take judicial notice (as the district court should have done) of the commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate that violence might result if a Negro man and a seemingly white woman should ride into the county seated together toward .the front of an inter urban bus.6

The next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the “utmost care and diligence of very cautious persons.” 7 We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to. advise Negroes applying for passage’ through the southern part of the United States of the South’s tradition of segregation.. It should have instructed its driver to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver should have explained to the Bullocks his reasons for wanting them to move. Above all, the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.

The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly erroneous. Upon the present record, however, we conclude that the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger, and that Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed and the cause remanded with directions8 to enter judgment for each of the plaintiffs, appellants, and upon the evidence contained in this record, to award each of them reasonable compensatory damages, including damages for physical injury and mental suffering and humiliation.9

Reversed and remanded with directions.

*102OPINION OF THE COURT

Fuchsberg, J.

After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case.

The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.

The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s injuries to a “fall through his bathroom glass door”. Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence.1

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950’s, a *103practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including “bathtub enclosures”.2 Over objection, the trial court also allowed in sections 389-m and 389-0 of New York’s General Business Law, which, enacted in 1972 though effective only as of July 1, 1973, required, on pain of criminal sanctions, that only “safety glazing material” be used in all bathroom enclosures after the effective date;3 however, the court carefully cautioned the jury that, because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered “along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants”. And, on examination of the defendants’ managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords *104who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, “assuming that there existed a custom and usage at the time to substitute shatterproof glass” and that this was a “better way or a safer method of enclosing showers” (82 AD2d, p 23), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law.4 To this the court added that, were it not dismissing, it would have ordered a new trial because, in its view, the admission of the afore-mentioned sections of the General Business Law, even with the reservations attached by the Trial Judge, constituted reversible error.

In a dissenting opinion, Justice Leonard Sandler disagreed on both counts; on the underlying liability issue, he found that the plaintiff had presented a clear question of fact for the jury and, on the evidentiary one stemming from the submission of the General Business Law, after noting that a careful marshaling of authorities had persuaded him that it was a “close question” (82 AD2d, p 28), he opined that whether the statute should have gone to the jury was properly within the Trial Judge’s discretion. Concurring in part and dissenting in part, Justice Arnold Fein, writing separately, took the position that, while there indeed was “ample” evidence of custom and usage to support the plaintiff’s verdict, a new trial was required since the advice to the jury of the contents of the statute, no matter how cushioned by qualifications, “could only be misleading” (82 AD2d, p 30).

For the reasons which follow, we agree with Justice Sandler and Justice Fein that plaintiff established a *105prima facie case. However, we would not disturb the conclusion of Justice Fein and the majority that the General Business Law did not belong in the case.

Our analysis may well begin by rejecting defendants’ contention that the shower door was not within the compass of section 78 of the Multiple Dwelling Law. From early on, it was understood that this statute was enacted in recognition of the reality that occupants of tenements in apartment houses, notwithstanding their control of the rented premises, as a practical matter looked to their landlords for the safe maintenance of the tenanted quarters as well. The result was that, if responsibility for keeping “every part thereof * * * in good repair” was not placed on the landlords, defects would remain unremedied (Multiple Dwelling Law, § 78; see Altz v Leiberson, 233 NY 16, 19). Therefore, though early cases may have chosen to give the statutory phrase “every part” a restrictive connotation (e.g., Kitchen v Landy, 215 App Div 586 [defective coal stove]; and Boylan v 1986 Grand Ave. Realty Corp., 169 Misc 881 [defective clothes drier]), later cases made clear that the remedial reach of the legislation mandated a more expansive interpretation under which fixtures or appliances furnished by the landlord were found to be within the statutory intendment (Herring v Slattery & Bros., 266 App Div 719, affd 291 NY 794 [defective gas range]; Rosen v 2070 Davidson Ave. Corp., 246 App Div 588, mot for lv to app den 270 NY 676 [defective clothes drier]).

Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard” (Garthe v Ruppert, 264 NY 290, 296). Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to *106it, this may establish due care (Bennett v Long Is. R. R. Co., 163 NY 1, 4 [custom not to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v Blaine Co., 273 NY 386, 389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof of a common practice aids in “formulating] the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456-457).

The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed], § 461; Prosser, Torts [4th ed], § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, 42 Col L Rev 1147, 1148). Following in the train of both of these boons is the custom’s exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)

From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that “the actor may be charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed], § 33, p 168; Restatement, Torts 2d, § 295A, p 62, Comment a).

However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence [rev ed], § 10). Before it can be, the jury must *107be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v Empire Eng. Corp., 204 NY 543, 550). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry. Co. v Behymer, 189 US 468, 470).

So measured, the case the plaintiff presented, even without the insertion of sections 389-m and 389-o of the General Business Law, was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant’s manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.

Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage “by others engaged in the same business” in proper perspective, when, among other things, he told the jury that the issue on which it was received was “the reasonableness of the defendant’s conduct' under all the circumstances”. He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to determine whether *108or not the evidence in this case does establish a general custom or practice”.

Nevertheless, we reverse and order a new trial because the General Business Law sections should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v Herzog, 228 NY 164, 168; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La L Rev 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class. Thus, while new installations made during the three-year interval between July 1,1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants’ objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.

For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v Harris, 55 NY2d 285).

Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.

*109Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.

Spalding, J.

In this action of tort for malpractice Theresa Brune (plaintiff) seeks to recover from the defendant because of alleged negligence in administering a spinal anesthetic. There is a count by the plaintiff’s husband for con*103sequential damages. The jury returned verdicts for the defendant on each count. The case comes here on the plaintiffs’ exceptions to the judge’s refusal to grant certain requests for instructions, to portions of the charge, and to the denial of the plaintiffs’ motion for a new trial.

The plaintiff was delivered of a baby on October 4, 1958, at St. Luke’s Hospital in New Bedford. During the delivery, the defendant, a specialist in anesthesiology practis-ing in New Bedford, administered a spinal anesthetic to the plaintiff containing eight milligrams of pontocaine in one cubic centimeter of ten per cent solution of glucose. When the plaintiff attempted to get out of bed eleven hours later, she slipped and fell on the floor. The plaintiff subsequently complained of numbness and weakness in her left leg, an affliction which appears to have persisted to the time of trial.

Testimony was given by eight physicians. Much of it related to the plaintiff’s condition. There was ample evidence that her condition resulted from an excessive dosage of pontocaine.

There was medical’evidence that the dosage of eight milligrams of pontocaine was excessive and that good medical practice required a dosage of five milligrams or less. There was also medical evidence, including testimony of the defendant, to the effect that a dosage of eight milligrams in one cubic centimeter of ten per cent dextrose was proper. There was evidence that this dosage was customary in New Bedford in a case, as here, of a vaginal delivery.1

1. The plaintiffs’ exception to the refusal to give their first request for instruction and their exception to a portion of the charge present substantially the same question and will be considered together. The request reads: “As a specialist, the defendant owed the plaintiff the duty to have and use the care and skill commonly possessed and used by similar specialist^ in like circumstances.” The relevant *104portion of the charge excepted to was as follows: “[The defendant] must measure up to the standard of professional care and skill ordinarily possessed by others in his profession in the community, which is New Bedford, and its environs, of course, where he practices, having regard to the current state of advance of the profession. If, in a given case, it were determined by a jury that the ability and skill of the physician in New Bedford were fifty percent inferior to that which existed in Boston, a defendant in New Bedford would be required to measure up to the standard of skill and competence and ability that is ordinarily found by physicians in New Bedford.”

The basic issue raised by the exceptions to the charge and to the refused request is whether the defendant was to be' judged by the standard of doctors practising in New Bedford.

The instruction given to the jury was based on the rule, often called the “community” or “locality” rule first enunciated in Small v. Howard, 128 Mass. 131, a case decided in 1880. There the defendant, a general practitioner in a country town with a population of 2,500, was consulted by the plaintiff to treat a severe wound which required a considerable degree of surgical skill. In an action against the defendant for malpractice this court defined his duty as follows: “It is a matter of common knowledge that a physician in a .small country village does not usually make a specialty of surgery, and, however well informed he may be in the theory of all parts of his profession, he would, generally speaking, be but seldom called upon as a surgeon to perform difficult operations. He would have but few opportunities of observation and practice in that line such as public hospitals or large cities would afford. The defendant was applied to, being the practitioner in a small village, and we think it was correct to rule that ‘he was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to possess that high degree of art and skill possessed by eminent surgeons practising in large cities, and *105making a specialty of the practice of surgery.’” The rule in Small v. Howard has been followed and applied in a long line of cases, some of which are quite recent. Ernen v. Crofwell, 272 Mass. 172, 175. Bouffard v. Canby, 292 Mass. 305, 309. Vigneault v. Dr. Hewson Dental Co. 300. Mass. 223, 225. Berardi v. Menicks, 340 Mass. 396, 400. Ramsland v. Shaw, 341 Mass. 56, 61. Riggs v. Christie, 342 Mass. 402, 405-406. Delaney v. Rosenthall, 347 Mass. 143, 146. Although in some of the later decisions the cotut has said that the doctor must exercise the care prevailing in “the locality where he practiced” it is doubtful if the court intended to narrow the rule in Small v. Howard where the expression “similar localities” was used.2

The rationale of the rule of Small v. Howard is that a physician in a small or rural community will lack opportunities to keep abreast with the advances in the profession and that he will not have the most modern facilities for treating his patients. Thus, it is unfair to hold the country doctor to the standard of doctors practising in large cities. The plaintiffs earnestly contend that distinctions based on geography are no longer valid in view of modern developments in transportation, communication and medical education, all of which tend to promote a certain degree of standardization within the profession. Hence, the plaintiffs urge that the rule laid down in Small v. Howard almost ninety years ago now be reexamined in the light of contemporary conditions.

The “community” or “locality” rule has been modified in several jurisdictions and has been subject to critical comment in legal periodicals.3

One approach, in jurisdictions where the “same community rule” obtains, has been to extend the geographical area which *106constitutes the community. The question arises not only in situations involving the standard of care and skill to be exercised by the doctor who is being sued for malpractice, but also in the somewhat analogous situations concerning the qualifications of a medical expert to testify. See Sampson v. Veenboer, 252 Mich. 660, 666-667 (expert from another State permitted to testify as to standards in Grand Rapids, in view of evidence that he Was familiar with standards in similar localities). In Connecticut which has the “same locality rule,” it was said by the Supreme Court of Errors, “Our rule does not restrict the territorial limitation to the confines of the town or city in which the treatment was rendered, and under modern conditions there is perhaps less reason than formerly for such restriction. There is now no lack of opportunity for the physician or surgeon in smaller communities tojceep abreast of the advances made in his profession, and to be familiar with the latest methods and practices adopted. It is not unreasonable to require that he have and exercise the skill of physicians and surgeons in similar localities in the same general neighborhood. It may not be sufficient if he exercise only that degree of skill possessed by other practitioners in the community in which he lives.” Geraty v. Kaufman, 115 Conn. 563, 573-574.

Other courts have emphasized such factors as accessibility to medical facilities and experience. See Tvedt v. Haugen, 70 N. D. 338, where the defendant doctor recognized that the plaintiff’s injury required the care of a specialist but failed to call this to the attention of the plaintiff. The court said at p. 349: “The duty of a doctor to his patient is measured by conditions as they exist, and not by what they have been in the past or may be in the future. Today, with the rapid methods of transportation and easy means of communication, the horizons have been widened, and the duty of a doctor is not fulfilled merely by utilizing the means at hand in the particular village where he is practicing. So far ¡as medical ¡treatment is concerned, the borders of the locality and community have, in effect, been extended so as to include those centers readily accessible where appropriate *107treatment may be had which the local physician, because of limited facilities or training, is unable to give.” And in Cavallaro v. Sharp, 84 R. I. 67, a medical expert formerly of Philadelphia was allowed to testify as to required degree of care in Providence, the court saying at page 72, “The two localities cannot be deemed so dissimilar as to preclude an assumption that mastoidectomies are performed by otologists in Providence with the same average degree of careful and skillful technique as in Philadelphia. It is to be remembered in this connection that Providence is not a small city but is the metropolitan center of upwards of a million people, and moreover is in reasonable proximity to Boston, one of the principal medical centers of the country.”

Other decisions have adopted a standard of reasonable care and allow the locality to be taken into account as one of the circumstances, but not as an absolute limit upon the skill required. See McGulpin v. Bessmer, 241 Iowa, 1119; Viita v. Fleming, 132 Minn. 128,135-137. In the case last cited the court said at page 137, “Frequent meetings of medical societies, articles in the medical journals, books by acknowledged authorities, and extensive experience in hospital work, put the country doctor on more equal terms with his city brother. . . . [W]e are unwilling to hold that he is to be judged only by the qualifications that others in the same village or similar villages possess.”

Recently the Supreme Court of Washington (sitting en banc) virtually abandoned the “locality” rule in Pederson v. Dumouchel, 72 Wash. 2d 73. There the trial judge charged that the defendant doctor was required to exercise the care and skill of others in the same or similar localities. This instruction, on appeal, was held to be erroneous. In the course of its well reasoned opinion the court said, “The ‘locality rule’ has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar cir*108cumstances. In other words, local practice within geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a particular locality, a similar locality, or a geographic area.” In another recent case the Supreme Court of Appeals of West Virginia criticised the “locality” rule and appears to have abandoned it in the case of specialists. Hundley v. Martinez, 151 W. Va. 977.

In cases involving specialists the Supreme Court of New Jersey has abandoned the “locality” rule. See Carbone v. Warburton, 11 N. J. 418, where it was said at page 426, “‘[CTjne who holds himself out as a specialist must employ not merely the skill of a general practitioner, but also the special degree of skill normally possessed by the average physician who devotes special study and attention to the particular organ or disease or injury involved, having regard to the present state of scientific knowledge. ’ ”4

Because of the importance of the subject, and the fact that we have been asked to abandon the “locality” rule we have reviewed the relevant decisions at some length. We are of opinion that the “locality” rule of Small v. Howard which measures a physician’s conduct by the standards of other doctors in similar communities is unsuited to present day conditions. The time has come when the medical profession should no longer be Balkanized by the application of varying geographic standards in malpractice cases. Accordingly, Small v. Howard is hereby overruled. The present case affords a good Elustration of the inappropriateness of the “locality” rule to existing conditions. The defendant was a specialist practising in New Bedford, a city of 100,000, which is slightly more than fifty miles from Boston, one of the medical centers of the nation, if not the world. This is a far cry from the country doctor in Small v. Howard, who ninety years ago was called upon to perform difficult surgery. *109Yet the trial judge told the jury that if the skill and ability of New Bedford physicians were “fifty percent inferior” to those obtaining in Boston the defendant should be judged by New Bedford standards, “having regard to the current state of advance of the profession.” This may well be carrying the-rule of Small v. Howard to its logical conclusion, but it is, we submit, a reductio ad absurdum of the rule.

The proper standard is whether the physician, if a general practitioner, has, exercised the degree of care and skill of the "average qualified practitioner, taking into account the advances in the profession. In applying this standard it is permissible to consider the medical resources available to the ^piysicíañ as'one circumstance in determining the skill and carejrequired. Under this standard some allowance is thus made for the type "of community in which the physician carries on his practice. See Prosser, Torts (3d ed.) § 32 (pp. 166-167); compare Restatement 2d: Torts, § 299A, comment g.

One holding himself out. as a specialist Should be held to the standard of care and skill of the average member of the .profession practising the specialty, taking into account the advances in the profession. And, as in the case of the general practitioner, it is permissible to consider the medical resources available to" him.

" Because the instructions permitted the jury to judge the defendant’s conduct against a standard that has now been determined to be incorrect, the plaintiffs’ exceptions to the charge and to the refusal of his request must be sustained.

2. The plaintiffs excepted to the refusal of the judge to give certain other requests for instructions. Of these we shall deal with only the eleventh, as the others are not likely to arise on a retrial of the case.5 The ruling arose in this setting. There was evidence that in a brochure published by the manufacturers of pontocaine the use of two to five milligrams in dextrose was recommended for a vaginal *110(saddle block) delivery, and the defendant testified that he was familiar with the contents of this brochure. There was medical evidence that it was good medical practice to follow the recommendations of the manufacturer with respect to dosages for spinal anesthetics. There was, however, testimony by an anesthesiologist that the recommendations contained in the brochure were “intended as a guide to physicians, not to anesthesiologists.” In support of their request the plaintiffs invoke the decisions holding that a violation of a rule previously adopted by a defendant in relation to the safety of third persons is admissible as tending to show negligence of the defendant’s disobedient servant. Stevens v. Boston Elev. Ry. 184 Mass. 476. We think that this principle has no application here. The statement concerning dosages in the brochure was quite different from the rule adopted for the safety of third persons in the Stevens case. It was no more than a recommendation, and there was a difference of opinion among the anesthesiologists as to whether the failure to follow it was improper practice. The judge rightly refused to give the requested instruction.

Exceptions sustained.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal is from a judgment entered in the District Court on verdicts directed for the two appellees at the conclusion of plaintiff-appellant Canterbury’s case in chief. His action sought damages for personal injuries allegedly sustained as a result of an operation negligently performed by appellee Spence, a negligent failure by Dr. Spence to disclose a risk of serious disability inherent in the operation, and negligent post-operative care by appellee Washington Hospital Center. On close examination of the record, we find evidence which required submission of these issues to the jury. We accordingly reverse the judgment as to each appellee and remand the case to the District Court for a new trial.

I

The record we review tells a depressing tale. A youth troubled only by back pain submitted to an operation without being informed of a risk of paralysis incidental thereto. A day after the operation he fell from his hospital bed after having been left without assistance while voiding. A few hours after the fall, the lower half of his body was paralyzed, and he had to be operated on again. Despite extensive medical care, he has never been what he was before. Instead of the back pain, even years later, he hobbled about on crutches, a vietim of paralysis of the bowels and urinary incontinence. In a very real sense this lawsuit is an understandable search for reasons.

At the time of the events which gave rise to this litigation, appellant was nineteen years of age, a clerk-typist employed by the Federal Bureau of Investigation. In December, 1958, he began to experience severe pain between his shoulder blades.1 He consulted two general practitioners, but the medications they prescribed failed to eliminate the pain. Thereafter, appellant secured an appointment with Dr. Spence, who is a neurosurgeon.

Dr. Spence examined appellant in his office at some length but found nothing amiss. • On Dr. Spence’s advice appellant was x-rayed, but the films did not identify any abormality. Dr. Spence then recommended that appellant undergo a myelogram — a procedure in which dye is injected into the spinal column and traced to find evidence of disease or other disorder — at the Washington Hospital Center.

Appellant entered the hospital on February 4, 1959.2 Thg myelogram revealed a “filling defect” in the region of the fourth thoracic vertebra. Since a myelogram often does no more than pinpoint *777the location of an aberration, surgery may be necessary to discover the cause. Dr. Spence told appellant that he would have to undergo a laminectomy — -the excision of the posterior arch of the vertebra — to correct what he suspected was a ruptured disc. Appellant did not raise"! any objection to the proposed operation nor did he probe into its exact nature.

Appellant explained to Dr. Spence that his mother was a widow of slender financial means living in Cyclone, West Virginia, and that she could be reached through a neighbor’s telephone. Appellant called-his mother the day after the myelogram was performed and, failing to contact her, left Dr. Spence’s telephone number with the neighbor. When Mrs. Canterbury returned the call, Dr. Spence told her that the surgery was occasioned by a suspected ruptured disc. Mrs. Canterbury then asked if the recommended-operation was serious and Dr. Spence replied “not anymore than any other operation.” He added that he knew Mrs. Canterbury was not well off and that her presence in Washington would not be necessary. The testimony is contradictory as to whether during the course of the conversation Mrs. Canterbury expressed her consent to the operation. Ap pellant himself apparently did not converse again with Dr. Spence prior to the operation.

Dr. Spence performed the laminectomy on February 113 at the Washington Hospital Center. Mrs. Canterbury traveled to Washington, arriving on that date but after the operation was over, and signed a consent-form at .the hospital. The laminectomy revealed several anomalies : a spinal cord that was swollen and unable to pulsate, an accumulation of large tortuous and dilated veins, and a complete absence of epidural fat which normally surrounds the spine. A thin hypodermic needle was inserted into the spinal cord to aspirate any cysts which might have .been present, but no fluid emerged. In suturing the wound, Dr. Spence attempted to relieve the pressure on the spinal cord by enlarging the dura —the outer protective wall of the spinal eord^-at the area of swelling.

For approximately the first day after the operation appellant recuperated normally, but then suffered a fall and an almost immediate setback. Since there is some conflict as to precisely when or why appellant fell,4 we reconstruct the events from the evidence most favorable to him.5 Dr. Spence left orders that appellant was to remain in bed during the process of voiding. These orders were changed to direct that voiding be done out of bed, and the jury could find that the change was made by hospital personnel. Just prior to the fall, appellant summoned a nurse and was given a receptacle for use in voiding, but was then left unattended. Appellant testified that during the course of the endeavor he slipped off the side of the bed, and that there was no one to assist him, or side rail to prevent the fall.

Several hours later, appellant began to complain that he could not move his legs and that he was having trouble breathing; paralysis seems to have been virtually total from the waist down. Dr. Spence was notified on the night of February 12, and he rushed to the hospital. Mrs. Canterbury signed another consent form and appellant was again taken into the operating room. The surgical wound was reopened and Dr. Spense created a gusset to allow the spinal cord greater room in which to pulsate.

Appellant’s control over his muscles improved somewhat after the second operation but he was unable to void properly. As a result of this condition, he came under the care of a urologist while *778still in the hospital. In April, following a cystoscopic examination, appellant was operated on for removal of bladder stones, and in May was released from the hospital. He reentered the hospital the following August for a 10-day period, apparently because of his urologic problems. For several years after his discharge he was under the care of several specialists, and at all times was under the care of a urologist. At the time of the trial in April, 1968, appellant required crutches to walk, still suffered from urinal incontinence and paralysis of the bowels, and wore a penile clamp.

In November, 1959 on Dr. Spence’s recommendation, appellant was transferred by the F.B.I. to Miami where he could get more swimming and exercise. Appellant worked three years for the F.B.I. in Miami, Los Angeles and Houston, resigning finally in June, 1962. From then until the time of the trial, he held a number of jobs, but had constant trouble finding work because he needed to remain seated and close to a bathroom. The damages appellant claims include extensive pain and suffering, medical expenses, and loss of earnings.

II

Appellant filed suit in the District Court on March 7, 1963, four years after the laminectomy and approximately two years after he attained his majority. The complaint stated several causes of action against each defendant. Against Dr. Spence it alleged, among other things, negligence in the performance of the laminectomy and failure to inform him beforehand of the ..risk involved. Against the hospital the complaint charged negligent post-operative care in permitting appellant to remain unattended after the laminectomy, in failing to provide a nurse or orderly to assist him at the time of his fall, and in failing to maintain a side rail on his bed. The answers denied the allegations of negligence and defended on the ground that the suit was barred by the statute of lim-** itations.

Pretrial discovery — including depositions by appellant, his mother and Dr. Spence — continuances and other delays consumed five years. At trial, disposition of the threshold question whether the statute of limitations had run was held in abeyance until the relevant facts developed. Appellant introduced no evidence to show medical and hospital practices, if any, customarily pursued in regard to the critical aspects of the case, and only Dr. Spence, called as an adverse witness, testified on the issue of causality. Dr. Spence described the surgical procedures he utilized in the two operations and expressed his opinion that appellant’s disabilities stemmed from his pre-operative condition as symptomized by the swollen, non-pulsating spinal cord. He stated, however, that neither he nor any of the other physicians with whom he consulted was certain as to what that condition was, and he admitted that trauma can be a cause of paralysis. Dr. Spence further testified that even without trauma paralysis can be anticipated “somewhere in the nature of one percent” of the laminectomies performed, a risk he termed “a very slight possibility.” He .feltthat .communication of that..risk-to the patient is not good medical practice because it might deter 'patients. from undergoing needed surgery and might produce' adverse psychological reactions which eoúld preclude the success of the operation.

At the close of appellant’s case in chief, each defendant moved for a directed verdict and the trial judge granted both motions. The basis of the ruling, he explained, was that appellant had failed to produce any medical evidence indicating negligence on Dr. Spence’s part in diagnosing appellant’s malady or in performing the laminectomy; that there was no proof that Dr. Spence’s treatment was responsible for appellant’s disabilities; and that notwithstanding some evidence to show negligent post-operative care, an absence of medical testimony to show causality precluded submission of the case against the hospital to the jury. *779The judge did not allude specifically to the alleged breach of duty by Dr. Spence to divulge the possible consequences of the laminectomy.

We reverse. The testimony of appellant and his mother that Dr. Spence did not reveal the risk of paralysis from the laminectomy made out a prima facie case of violation of the physician’s duty to disclose which Dr. Spence’s explanation-did not negate as a matter of law. There was also testimony from which the jury could have found that the laminectomy was negligently performed by Dr. Spence, and that appellant’s fall was the consequence of negligence on the part of the hospital. The record, moreover, contains evidence of sufficient quantity and quality to tender jury issues as to whether and to what extent any such negligence was causally related to appellant’s post-laminectomy condition. These considerations entitled appellant to a new trial.

Elucidation of our reasoning necessitates elaboration on a number of points. In Parts III and IV we explore the origins and rationale of the physician’s duty to reasonably inform an ailing patient as to the treatment alternatives available and the risks incidental to them. In Part V we investigate the scope of the disclosure requirement and in Part VI the physician’s privileges not to disclose. In Part VII we examine the role of causality, and in Part VIII the need for expert testimony in non-disclosure litigation. In Part IX we deal with appellees’ statute of limitations defense and in Part X we apply the principles discussed to the case at bar.

Ill

Suits charging failure by a physician 6 adequately to disclose the risks and alternatives of proposed treatment are not innovations In American law. They date back a good half-century,7 and in the last decade they have multiplied rapidly.8 There is, nonetheless, disagreement among the courts and the commentators 9 on many major questions, and there is no precedent of our own directly in point.10 For the tools enabling resolu*780tion of the issues on this appeal, we are forced to begin at first principles.11

The root premise is the concept, fundamental in American jurisprudence, that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body. . . . ” 12 True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.13 The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision.14 From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgenee by physician to patient to make such a decision possible.15

*781A physician is under a duty to treat his patient skillfully16 but proficiency in diagnosis and therapy is not the full measure of his responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it.17 Due care may require a physician perceiving symptoms of bodily abnormality to alert the patient to the condition.18 It may call upon the physician confronting an ailment which does not respond to his ministrations to inform the patient thereof.19 It may command the physician to instruct the patient as to any limitations to be presently observed for his own welfare,20 and as to any precautionary therapy he should seek in the future.21 It may oblige the physician to advise the patient of the need for or desirability of any alternative treatment promising greater benefit than that being pursued.22 Just as plainly, due care normally demands that the physician warn the patient of any risks to his well-being which contemplated therapy may involve.23

The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie.24 To enable the patient to chart his course understandably, some familiarity with the therapeutic alternatives and their hazards becomes essential.25

*782A reasonable revelation in these respects is not only a necessity but, as we see it, is as much a matter of the physician’s duty. Ijt is a duty to warn of the dangers lurking in the proposed treatment, and that is surely a facet of due care.26 It is, too, a duty to impart information which the patient has every right to expect.27 The patient’s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with arms-length transactions.28 His dependence upon the physician for information affecting his well-being,' in terms of contemplated treatment, is well-nigh abject. As earlier noted, long before the instant litigation arose, courts had recognized that the physician had the responsibility of satisfying the vital informational needs of the patient.29 | More recently, we ourselves have found “in the fiducial qualities of [the physician-patient] relationship the physician’s duty to reveal to the patient that which in his best interests it is important that he should know.” 30 We now find, as a part of the physician’s overall obligation to the patient, a similar duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved.31

This disclosure requirement, on analysis, reflects much more of a change in doctrinal emphasis than a substantive addition to malpractice law. It is well established that the physician must seek and secure his patient’s consent before commencing an operation or other course of treatment.32 It is also *783clear that the consent, to be efficacious, must be free from imposition upon the patient.33 It is the settled rule that therapy not authorized by the patient may amount to a tort — a common law battery —by the physician.34 And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient’s edification.35 Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient.36 The evolution of the obligation to communicate for the patient’s benefit as well as the physician’s protection has hardly involved an extraordinary restructuring of the law.

IV

Duty to disclose has gained recognition in a large number of American jurisdietions,37 but more largely on a different rationale. The majority of courts dealing with the problem have made the duty depend on whether it was the custom of physicians practicing in the community to make the particular disclosure to the patient.38 If so, the physician may be held liable for an unreasonable and injurious failure to divulge, but there can be no recovery unless the omission forsakes a practice prevalent in the profession.39 We agree that the physician’s noncompliance with a professional custom to reveal, like any other departure from prevailing medical practice,40 may give rise to liability to the patient. We do not agree that the patient’s cause of action is dependent upon the existence and nonperformance of a relevant professional tradition.

There are, in our view, formidable obstacles to acceptance of the notion that the physician’s obligation to disclose is either germinated or limited by medical practice. To begin with, the reality of any discernible custom reflecting a professional concensus on communication of option and risk information to patients is open to serious doubt.41 We sense the danger that what in fact is no *784custom at all may be taken as an affirmative custom to maintain silence, and that physician-witnesses to the so-called custom may state merely their personal opinions as to what they or others would do under given conditions.42 We cannot gloss over the inconsistency between reliance on a general practice respecting divulgence and, on the other hand, realization that the myriad of variables among patients 43 makes each case so different that its omission can rationally be justified only by the effect of its individual circumstances.44 Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone.45 Respect for the patient’s right of self-determination on particular therapy46 demands a standard set by law for physicians rather than one which physicians may or may not impose .upon themselves.47

More fundamentally, the majority rule overlooks the graduation of reasonable-care demands in Anglo-American jurisprudence and the position of professional custom in the hierarchy. The caliber of the performance exacted by the reasonable-care standard varies between the professional and non-professional worlds, and so also the role of professional custom. “With but few exceptions,” we recently declared, “society demands that everyone under a duty to use care observe minimally a general standard.” 48 “Familiarly expressed judicially,” we added, “the yardstick is that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances." 49 “Beyond this,” however, we emphasized, “the law requires those engaging in activities requiring unique knowledge and ability to give a performance commensurate with the undertaking.”50 Thus physicians treating the sick must perform at higher levels than non-physicians in order to meet the reasonable care standard in its special application to physicians51— “that degree of care and skill ordinarily exercised by the profession in [the physician’s] own or similar localities.” 52 And practices adopted by the profession have indispensable value as evidence tending to establish just what that degree of care and skill is.53

We have admonished, however, that “[t]he special medical standards54 are but. adaptions of the general standard to a group who are required to act as *785reasonable men possessing their medical talents presumably would.”55 There is, by the same token, no basis for operation of the special medical standard where the physician’s activity does not bring his .medical knowledge and skills peculiarly .into play.56 And where the challenge to the physician’s conduct is not to be gauged by the special standard, it follows that medical custom cannot furnish the test of its propriety, whatever its relevance under the proper test may be.57 The decision to unveil the patient’s condition and the chances as to remediation, as we shall see.Js ofttimes a non-medical judgment58 and, if so, is a decision out.side the ambit of the special standard. Where that is the situation, professional custom hardly furnishes the legal criterion for measuring the physician’s responsibility to reasonably inform his patient of the options and the hazards as to treatment.

The majority rule, moreover, is at war with our prior holdings that a showing of medical practice, however probative, does not fix the standard governing recovery for medical malpractice.59 .Prevailing medical practice, we have maintained, has_evidentiary value in determinations as to what the specific criteria measuring challenged professional conduct are and whether they have been met,60 but does not itself define the standard.61 That has been our position in treatment cases, where the physician’s performance is ordinarily to be adjudicated by the special medical standard of due care.62 We see no logic in a different rule for nondisclosure cases, where the governing standard is much more largely divorced from professional considerations.63 And surely in nondisclosure cases the factfinder is not invariably functioning in an area of such technical complexity that it must be bound to medical custom as an inexorable application of the community standard of reasonable care.64

Thus we distinguished, for purposes of duty to disclose, the speeial- and general-standard aspects of the physician-patient relationship. When medical judgment enters the picture and for 'that reason the special standard controls, prevailing medical practice must be given its just due. In all other instances, however, the general standard exacting ordinary care applies, and that standard is set by law. In sum, the physician’s duty to disclose is governed by the same legal principles applicable to others in comparable situations, with modifications only to the extent that medical judgment enters the picture.65 We hold that the standard measuring, performance of that duty by physicians, as by others, is conduct which is reasonable under the circumstances.66

*786V

Once the circumstances give rise to a duty on the physician’s part to inform his patient, the next inquiry is the_scope of the disclosure the physician is legally obliged to make. The courts have frequently confronted this problem but no uniform standard defining the adequacy of the divulgenee emerges from the decisions. Some have said “full” disclosure,67 a norm we are unwilling to adopt literally. It seems obviously prohibitive and unrealistic to expect physicians to discuss with their patients every risk of proposed treatment — no matter how small or remote68 — and generally unnecessary from the patient’s viewpoint as well. Indeed, the cases speaking in terms of “full” disclosure appear to envision something less than total disclosure,69 leaving unanswered the question of just how much.

The larger number of courts, as might be expected, have applied tests framed with reference to prevailing fashion within the medical profession.70 Some have measured the disclosure by “good medical practice,”71 others by what a reasonable practitioner would have bared under the circumstances,72 and still others by what medical custom in the community would demand.73 JVe have explored this rather considerable body of law but are unprepared to follow it. The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice.74 The latter, we think, should no more establish the scope of the duty than its existence. Any definition of scope in terms purely of a professional standard is at odds with the patient’s prerogative to decide on projected therapy himself.75 That prerogative, we have said, is at the very foundation of the duty to disclose,76 and both the patient’s right to know and the physician’s correlative obligation to tell him are diluted to the extent that its compass is dictated by the medical profession.77

In our view, the patient’s right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice.’ The scope of the physician’s communications to the patient, then, must bef measured by the patient’s need,78 and that need is the information material to the decision. Thus tlie test for determining whether a par*787ticular peril must be divulged is its materiality to the patient’s decision: all risks, potentially affecting the decision must be unmasked.79 And to safeguard the patient’s interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure.80

Optimally for the patient, exposure of a risk would be mandatory whenever the patient would deem it significant to his decision, either singly or in combination with other risks. Such a requirement, however, would summon the physician to second-guess the patient, whose ideas on materiality could hardly be known to the physician. That would make an undue demand upon medical practitioners, whose conduct, like that of others, is to be- measured in terms of reasonableness. Consonantly with orthodox negligence doctrine, the physician’s liability for nondisclosure is to be determined on the basis of foresight, not hindsight; no less than any other aspect of negligence, the issue on nondisclosure must be approached from the viewpoint of the reasonableness of the physician’s divulgence jn terms of what he knows or should know to be the patient’s informational needs. If, but only if, the fact-finder can say that the physician’s communication was unreasonably inadequate is an imposition of liability legally or morally justified.81

Of necessity, the content of the disclosure rests in the first instance with the physician. Ordinarily it is only he who is in position to identify particular dangers; always he must make a judgment, in terms of materiality, as to whether and to what extent revelation to the patient is called for. He cannot know with complete exactitude what the patient would consider important to his decision, but on the basis of his medical training and experience he can sense how the average, reasonable patient expectably would react.82 Indeed, with knowledge of, or ability to learn, his patient’s background and current condition, he is in a position superior to that of most others — attorneys, for example — who are called upon to make judgments on pain of liability in damages for unreasonable miscalculation.83

From these considerations we derive the breadth of the disclosure of risks legally to be required. The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patient’s informational needs and with suitable leeway for the physician’s situation. In broad outline, we agree that,“[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or.cluster of risks in deciding whether or not to forego the proposed therapy.” 84

The topics importantly demanding a communication of information are the inherent and potential hazards of the proposed treatment, the alternatives to *788that treatment, if any, and the results likely if the patient remains untreated. The factors contributing significance to the dangerousness of a medical technique are, of course, the incidence of injury and the degree of the harm threatened.85 A very small chance of death or serious disablement may well be significant; a potential disability which dramatically outweighs the potential benefit of the therapy or the detriments of the existing malady may summons discussion with the patient86

There is no bright line separating the significant from the insignificant ; the answer in any case must abide a rule of reason. Some dangers — infection, for example — are inherent in any operation; there is no obligation to communicate those of which persons of average sophistication are aware.87 Even more clearly, the physician bears no responsibility for discussion of hazards the patient has already discovered,88 or those having no apparent materiality to patients’ decision on therapy.89 The disclosure doctrine, like others marking lines between permissible and impermissible behavior in medical practice, is in essence a requirement of conduct prudent under the circumstances. Whenever nondisclosure of particular risk information is open to debate by reasonable-minded men, the issue is for the finder of the facts.90

VI

Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician’s privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient’s right to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege. The first comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of confer*789ring with the patient dispenses with need for it.91 Even in situations of that character the physician should, as current law requires, attempt to secure a relative’s consent if possible 92 But if time is too short to accommodate discussion, obviously the physician should proceed with the treatment.93

The second exception obtains when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view. It is recognized that patients occasionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to the patient.94 Where that is so, the cases have generally held that the physician is armed with a privilege to keep the information from the patient,95 and we think it clear that portents of that type may justify the physician in action he deems medically warranted. The critical inquiry is whether the physician responded to a sound medical judgment that communication of the risk information would present a threat to the patient’s well-being.

The physician’s privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs.96 That attitude presumes instability or perversity for even the normal patient, and runs counter to the foundation principle that the patient should and ordinarily can make the choice for himself.97 Nor does the privilege contemplate operation save where the patient’s reaction to risk information, as reasonable foreseen by the physician, is menacing.98 And even in a situation of that kind, disclosure to a close relative with a view to securing consent to the proposed treatment may be the only alternative open to the physician.99

*790VII

No more than breach of any other legal duty does nonfulfillment of the physician’s obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence. Occurrence of the risk must be harmful to the patient, for negligence unrelated to injury is nonaetionable.100 And, as in malpractice actions generally,101 there must be a causal relationship between the physician’s failure to adequately divulge and damage to the patient.102

A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it.103 The patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils. On the other hand, the very purpose of the disclosure rule is to protect the patient against consequences which, if known, he would have avoided by foregoing the treatment.104 The more difficult question is whether the factual issue on causality calls for an objective or a subjective determination.

It has been assumed that the issue is to be resolved according to whether the factfinder believes the patient’s testimony that he would not have agreed to the treatment if he had known of the danger which later ripened into injury.105 We think a technique which ties the factual conclusion on causation simply to the assessment of the patient’s credibility is unsatisfactory. To be sure, the objective of risk-disclosure is preservation of the patient’s interest in intelligent self-choice on proposed treatment, a matter the patient is free to decide for any reason that appeals to him.106 When, prior to commencement of therapy, the patient is sufficiently informed on risks and he exercises his choice, it may truly be said that he did exactly what he wanted to do. But when causality is explored at a post-injury trial with a professedly uninformed patient, the question whether he actually would have turned the treatment down if he had known the risks is purely hypothetical: “Viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?”107 And the answer which the patient supplies hardly represents more than a guess, perhaps tinged by the circumstance that the uncommunicated hazard has in fact materialized.108

In our view, this method of dealing with the issue on causation comes in second-best. It places the physician in jeop*791ardy of the patient’s hindsight and bitterness. It places the factfinder in the position of deciding whether a speculative answer to a hypothetical question is to be credited. It calls for a subjective determination solely on testimony of a patient-witness shadowed by the occurrence of the undisclosed risk.109

Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance.110 If adequate disclosw. could reasonably be expected to llave caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not.111 The patient’s testimony is relevant on that score of course but it would not threaten to dominate the findings. And since that testimony would probably be appraised congruently with the factfinder’s belief in its reasonableness, the case for a wholly objective standard for passing on causation is strengthened. Such a standard would in any event ease the fact-finding process and better assure the truth as its product.

VIII

In the context of trial of a suit claiming inadequate disclosure of risk information by a physician, the patient has the burden of going forward with evidence tending to establish prima facie the essential elements of the cause of action, and ultimately the burden of proof — the risk of nonpersuasion112— on those elements.113 These are normal impositions upon moving litigants, and no reason why they should not attach in nondisclosure cases is apparent. The burden of going forward with evidence pertaining to a privilege not to disclose,114 however, rests properly upon the physician. This is not only because the patient has made out a prima facie case before an issue on privilege is reached, but also because any evidence bearing on the privilege is usually in the hands of the physician alone. Requiring him to open the proof on privilege is consistent with judicial policy laying such a burden on the party who seeks shelter from an exception to a general rule and who is more likely to have possession of the facts.115

As in much malpractice litigation,116 recovery in nondisclosure lawsuits has hinged upon the patient’s ability to prove through expert testimony that the physician’s performance departed from medical custom. This is not surprising since, as we have pointed out, the majority of American jurisdictions have limited the patient’s right to know to whatever boon can be found in medical practice.117 We have already discussed our disagreement with the majority rationale.118 We now delineate our view on the need for expert testimony in nondisclosure cases.

There are obviously important roles for medical testimony in such cases, and some roles which only medical evidence can fill: Experts are ordinarily indispensible to identify and elucidate for the factfinder the risks of therapy and *792the consequences of leaving existing maladies untreated. They are normally needed on issues as to the cause of any injury or disability suffered by the patient and, where privileges are asserted, as to the existence of any emergency claimed and the nature and seriousness of any impact upon the patient from risk-disclosure. Save for relative infrequent instances where questions of this type are resolvable wholly within the realm of ordinary human knowledge and experience, the need for the expert is clear.119

The guiding consideration our decisions distill, however, is that medical facts are for medical experts120 and other facts are for any witnesses- — expert or not — having sufficient knowledge and capacity to testify to them.121 It is evident that many of the issues typically involved in nondisclosure cases do not reside peculiarly within the medical domain. Lay witness testimony can competently establish a physician’s failure to disclose particular risk information, the patient’s lack of knowledge of the risk, and the adverse consequences following the treatment.122 Experts are unnecessary to a showing of the materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision.123 These conspicuous examples of permissible uses of nonexpert testimony illustiv. the relative freedom of broad areas of the legij problem of risk nondisclosure from the demands for expert testimony that shackle plaintiffs’ other types of medical malpractice litigation.124

*793IX

We now confront the question whether appellant’s suit was barred, wholly or partly, by the statute of limitations. The statutory periods relevant to this inquiry are one year for battery actions125 and three years for those charging negligence.126 For one a minor when his cause of action accrues, they do not begin to run until he has attained his majority.127 Appellant was nineteen years old when the laminectomy and related events occurred, and he filed his complaint roughly two years after he reached twenty-one. Consequently, any claim in suit subject to the one-year limitation came too late.

Appellant’s causes of action for the allegedly faulty laminectomy by Dr. Spence and allegedly careless post-operative care by the hospital present no problem. Quite obviously, each was grounded in negligence and so was governed by the three-year provision.128 The duty-to-disclose claim appellant asserted against Dr. Spence, however, draws another consideration into the picture. We have previously observed that an unauthorized operation constitutes a battery, and that an uninformed consent to an operation does not confer the necessary authority.129 If, therefore, appellant had at stake no more than a recovery of damages on account of a laminectomy intentionally done without intelligent permission, the statute would have interposed a bar.

It is evident, however, that appellant had much more at stake.130 His interest in bodily integrity commanded protection, not only against an intentional invasion by an unauthorized operation 131 but also against a negligent invasion by his physician’s dereliction of duty to adequately disclose.132 Appellant has asserted and litigated a violation of that duty throughout the case.133 That claim, like the others, was governed by the three-year period of limitation applicable to negligence actions 134 and was *794unaffected by the fact that its alternative was barred by the one-year period pertaining to batteries.135

X

This brings us to the remaining question, common to all three causes of action: whether appellant’s evidence was of such caliber as to require a submission to the jury. On the first, the evidence was clearly sufficient to raise an issue as to whether Dr. Spence’s obligation to disclose information on risks was reassonably met or was excused by the surrounding circumstances. Appellant testified that Dr. Spence revealed to him nothing suggesting a hazard associated with the laminectomy. His mother testified that, in response to her specific inquiry, Dr. Spence informed her that the laminectomy was no more serious than any other operation. When, at trial, it developed from Dr. Spence’s testimony that paralysis can be expected in one percent of laminectomies, it became the jury’s responsibility to decide whether that peril was of sufficient magnitude to bring the disclosure duty into play.136 There was no emergency to frustrate an opportunity to disclose,137 and Dr. Spence’s expressed opinion that disclosure would have been unwise did not foreclose a contrary conclusion by the jury. There was no evidence that appellant’s emotional makeup was such that concealment of the risk of paralysis was medically sound.138 Even if disclosure to appellant himself might have bred ill consequences, no reason appears for the omission to communicate the information to his mother, particularly in view of his minority.139 The jury, not Dr. Spence, was the final arbiter of whether nondisclosure was reasonable under the circumstances.140

Proceeding to the next cause of action, we find evidence generating issues as to whether Dr. Spence performed the laminectomy negligently and, if so, whether that negligence contributed causally to appellant’s subsequent disabilities. A report Dr. Spence prepared after the second operation indicated that at the time he felt that too-tight sutures at the laminectomy site might have caused the paralysis. While at trial Dr. Spence voiced the opinion that the sutures were not responsible, there were circumstances lending support to his original view. Prior to the laminectory, appellant had *795none of the disabilities of which he now complains. The disabilities appeared almost immediately after the laminectomy. The gusset Dr. Spence made on the second operation left greater room for the spinal cord to pulsate, and this alleviated appellant’s condition somewhat. That Dr. Spence’s in-trial opinion was hardly the last word is manifest from the fact that the team of specialists consulting on appellant was unable to settle on the origin of the paralysis.

We are advertent to Dr. Spence’s attribution of appellant’s disabilities to his condition preexisting the laminectomy, but that was a matter for the jury. And even if the jury had found that theory acceptable, there would have remained the question whether Dr. Spence aggravated the preexisting condition. A tortfeasor takes his victim as he finds him, and negligence intensifying an old condition creates liability just as surely as negligence precipitating a new one.141 It was for the jury to say, on the whole evidence, just what contributions appellant’s preexisting condition and Dr. Spence’s medical treatment respectively made to the disabilities.

In sum, judged by legal standards, the proof militated against a directed verdict in Dr. Spence’s favor. True it is that the evidence did not furnish ready answers on the dispositive factual issues, but the important consideration is that appellant showed enough to call for resolution of those issues by the jury. As in Sentilles v. Inter-Carribbean Shipping Corporation,142 a case resembling this one, the Supreme Court stated,

The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony into consideration.143

We conclude, lastly, that the case against the hospital should also have gone to the jury. The circumstances surrounding appellant’s fall — the change in Dr. Spence’s order that appellant be kept in bed,144 the failure to maintain a side rail on appellant’s bed, and the absence of any attendant while appellant was attempting to relieve himself — could certainly suggest to jurors a dereliction of the hospital’s duty to exercise reasonable care for the safety and well-being of the patient.145 On the issue of causality, the *796evidence was uneontradicted that appellant progressed after the operation until the fall but, a few hours thereafter, his condition had deteriorated, and there were complaints of paralysis and respiratory difficulty. That falls tend to cause or aggravate injuries is, of course, common knowledge, which in our view the jury was at liberty to utilize.146 To this may be added Dr. Spence’s testimony that paralysis can be brought on by trauma or shock. All told, the jury had available a store of information enabling an intelligent resolution of the issues respecting the hospital.147

We realize that, when appellant rested his case in chief, the evidence scarcely served to put the blame for appellant’s disabilities squarely on one appellee or the other. But this does not mean that either could escape liability at the hand of the jury simply because appellant was unable to do more. As ever so recently we ruled, “a showing of negligence by each of two (or more) defendants with uncertainty as to which caused the harm does not defeat recovery but passes the burden to the tortfeasors for each to prove, if he can, that he did not cause the harm.” 148 In the case before us, appellant’s evidentiary presentation on negligence survived the claims of legal insufficiency, and appellees should have been put to their proof.149

Reversed and remanded for a new trial.

Mitchell, J.1

Upon the 1-ecord in this case it must be taken as the facts that defendant’s clerk in his drug-store, in the course of his employment as such, sold to plaintiff’s intestate a deadly poison without labelling it “Poison,” as required by statute; that she, in ignorance of its deadly qualities, partook of the poison, -which caused her death. Except for the ability of counsel and the earnestness with which they have argued the case, we would not have supposed that there could be any serious doubt of defendant’s liability on this state of facts. It is immaterial for present purposes whether section 329 of the Penal Code or section 14, c. 147, Laws 1885, or both, are still in force, and constitute the law' governing this case. The requirements of both statutes are substantially the same, and the sole object of both is to protect the public against tbe dangerous qualities of poison. It is now well settled, certainly in this state, that where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it"was imposed for any injuries of the character which the statute or'ordinance was designed to prevent, and which were proximately produced/ by such neglect. In support of this we need only cite our own decision in Bott v. Pratt, 33 Minn. 323, (23 N. W. Rep. 237.)

Defendant contends that this is only true where a right of action for the alleged negligent act existed at common law; that no liability existed at common law for selling poison without labelling it, and therefore none exists under this statute, no right of civil action being given by it. Without stopping to consider the correctness of the assumption that selling poison without labelling it might not be actionable negligence at common law, it is sufficient to say that, in our opinion, defendant’s contention proceeds upon an entire misapprehension of the nature and gist of a cause of action of this kind. The common law gives a right of action to every one sustaining injuries caused proximately by the negligence of another. The pres*105ent is a common-law action, the gist of which is defendant’s negligence, resulting in the death of plaintiff’s intestate. Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense except that it makes an act negligent which otherwise might not be such, or at least only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. The gist of the action is still negligence, or the non-performance of a legal duty to the person injured.

What has been already said suggests the answer to the further contention that if any civiliiability exis.ts.lt is only againslthe clerk who sold the poison, and who alone is criminally liable. Whether the“act constituting the actionable negligence was such on common-law principles, or is made such by statute, the doctrine of agency applies, to wit, that the master is civilly liable for the negligence of his servant committed in the course of his employment, and resulting in injuries to third persons.

Judgment affirmed.

Cardozo, J.

The action is one to recover damages for injuries resulting in death.

Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant’s automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway (Highway Law, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25). Negligence is charged against the plaintiff’s interstate, the driver of the wagon, in that he was traveling without lights (Highway Law, sec. 329a, as amended by L. 1915, ch. 367). There is no evidence *167that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and looking in the direction of the plaintiff’s approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.

We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury (Todd v. Nelson, 109 N. Y. 316, 325). A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light “in determining whether the plaintiff’s intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.” The defendant requested a ruling that the absence of a light on the plaintiff’s vehicle was “prima facie evidence of contributory negligence.” This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that “the fact that the plaintiff’s intestate was driving without a light is not negligence in itself,” and to this the court acceded. The defendant saved his rights by appropriate exceptions.

*168We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 538; Marino v. Lehmaier, 173 N. Y. 530, 536; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40; Prest-O-Lite Co. v. Skeel, 182 Ind. 583, 600, 601; Newcomb v. Boston Protective Dept., 146 Mass. 596; Bourne v. Whitman, 209 Mass. 155, 163). Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought (Pollock Torts [10th ed.], p. 458; Clark & Linseil Torts [6th ed.], p. 493; Salmond Jurisprudence [5th ed.], pp. 351, 363; Texas & Pac. Ry. Co. v. Rigsby, supra, p. 43; Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559). In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed (Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283; Kelley v. N. Y. State Rys. 207 N. Y. 342; Ward v. Hobbs, 4 App. Cas. 13). Some relaxation there has also been where the *169safeguard is prescribed by local ordinance, and not by statute (Massoth v. D. & H. C. Co., 64 N. Y. 524, 532; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488). Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism (Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra). Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself (Massoth v. D. & H. Canal Co., supra; and cf. Cordell v. N. Y. C. & H. R. R. R. Co., supra). In the ease at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to “consider the default as lightly or gravely” as they would (Thomas, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman (Scott v. International Paper Co., 204 N. Y. 49; Fitzwater v. Warren, 206 N. Y. 355; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes *170under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and being wholly unexcused was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. “Proof of negligence in the air, so to speak, will not do” (Pollock Torts [10th ed.], p. 472). We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals (Lambert v. Staten Island R. R. Co., 70 N. Y. 104, 109, 110; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58; The Pennsylvania, 19 Wall. 125, 136, 137; Fisher v. Village of Cambridge, 133 N. Y. 527, 532). If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen *171it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference, but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told not only that the omission of the lights was negligence, but that it was “prima facie evidence of contributory negligence,” i. e., that it was sufficient in itself unless its probative force was overcome (Thomas, J., in court below) to sustain a verdict that the decedent was at fault (Kelly v. Jackson, 6 Pet. 622, 632). Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for, and refused.

We are persuaded that the tendency of the charge and of all the rulings following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent’s fault. Errors may not be ignored as unsubstantial when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced *172to the level of cautions, and the duty to obey attenuated into an option to conform.

The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.

Hogan, J. (dissenting).

Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon and an order made denying an application to set aside the verdict and for a new trial to the Appellate Division. The latter court reversed the judgment on the law and granted a new trial on questions of law only, the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. (Judson v. Central Vt. R. R. Co., 158 N. Y. 597, 602.) A jury and the Appellate Division having determined that upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff and approved by the Appellate Division.

The following facts are undisputed. Leading from Broadway in the village of Tarrytown, Westchester county, is a certain public highway known as Neperham road, which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from twenty-one and one-half feet at the narrowest point a short distance easterly of the place of the collision hereinafter mentioned, to a width of *173twenty-seven and one-half feet at the point where the collision occurred.

On the evening of August 21st, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz., from Tarrytown easterly towards East View in an automobile which weighed about three thousand pounds, having a capacity of seventy horse power, capable of developing a speed of seventy-five miles an hour. Defendant was driving the car.

A collision occurred between the two vehicles on the highway at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident.

The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband caused as she alleged solely by the negligence of defendant in operating, driving and running the automobile at a high, unlawful, excessive and unsafe rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile and in operating, driving and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband.

Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint and affirmatively alleged that any injury to plaintiff’s intestate was caused by his contributory negligence.

As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated: “The case against him (defend*174ant) must stand, therefore, if at all, upon the divergence of his course from the center of the highway.” The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on their right side of the highway near the grass which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about one hundred twenty feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was eighteen to twenty miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was: “Just before I passed the Tarrytown Heights Station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road, probably I proceeded along the road thre’e hundred or four hundred feet further, I do not know exactly how far, when suddenly there was a crash and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call 'whoa’ and that is all I knew until I stopped my car. My best judgment is I was travelling about twelve miles an hour. At the time of the collision I was driving on the right of the road.”

*175The manner in which and the point in the highway where the accident occurred presented a question of lact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate having observed the approaching automobile deliberately, thoughtlessly or with an intention to avoid the same left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision. The trial justice charged the jury fully as to the claims of the parties and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case) and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint. “It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road and the whole road ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find from the evidence here, he was driving on the wrong side of the road and that for this reason he collided with the buggy which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy and yet collided with it then you may say, if you so find, that the defendant was careless and negligent.” No exception was taken by the defendant to that charge, but at the *176close of the charge counsel for defendant made certain requests to charge upon the subject as follows:

“(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.

“(2) In considering the photographs and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.

“(3) The plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.

“(4) It was the duty of Mr. Martin to keep to the right.”

Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant.

The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant.

The prevailing opinion in referring to the accident and the highway at the point where the accident occurred describes the same in the following language: “At the point of the collision, the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy emerging the defendant tells us from the gloom.” Such in substance was the testimony of the defendant but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding “a curve,” *177two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs made for the purposes of the trial were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements rather than to the photographs and failed to discover therefrom a curve of any importance or which would interfere with an unobstructed view of the road. As to the “buggy emerging the defendant tells us from the gloom,” evidence was adduced by plaintiff tending to show that the searchlights on defendant’s car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible, that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown who arrived within twenty minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was twenty-seven and one-half feet. About twenty-five feet westerly on the southerly side was located an electric fight which was burning. A fine drawn across the highway from that fight to the point of the accident would be about forty-two feet. One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room it was sufficiently fight for her to see plaintiff’s intestate when he was driving along the road at a point near a telegraph pole which is shown on the map some ninety or one hundred feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the *178defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about forty feet distant from said point and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass forty feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner where he testified that the road was “fairly light.”

The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (A) Defendant was driving his car upon the wrong side of the road. (B) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (C) The highway was well lighted. The evening was not dark. (D) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.

I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion. Therein it is stated: “There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous.” I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that if defendant did not see the buggy thus illumined it might reasonably infer that he would not have seen it anyway. Further the opinion states: “Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he *179did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of the kind is shown.” As to the rate of speed of the automobile, the evidence adduced by plaintiff’s witnesses was from eighteen to twenty miles an hour, as “very fast,” further that after the collision the car proceeded one hundred feet before it was stopped. The defendant testified that he was driving about twelve miles an hour, that at such rate of speed he thought the car should be stopped in five or six feet and though he put on the foot brake he ran twenty feet before he stopped. The jury had the right to find that a car traveling at the rate of twelve miles an hour which could be stopped within five or six feet, and with the foot brake on was not halted within one hundred feet must at the time of the collision have been running “very fast” or at a reckless rate of speed, and, therefore, warning would of necessity be futile. No claim was made that defendant was intoxicated or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff’s right to recover. This case does not differ from many others wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was: “The case against him (defendant) must stand or fall, if at all, upon the divergence of his course from the center of the highway.” It would appear that “lack of vision whether excusable or not was the cause of the disaster” had been adopted in lieu of divergence from the center of the highway. I have, therefore, discussed divergence from the center of the road. My examination of the record leads me to the conclusion that lack of vision was not on the undisputed facts the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff’s theory he might have been driving reck*180lessly and the plaintiff and her intestate being near to the grass on the northerly side of a roadway twenty-seven feet and upwards in width the accident would not have happened and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff’s side of the road and caused the accident, the question of whether or not under the facts in the exercise of reasonable care he might have discovered his error and the presence of plaintiff and thereupon avoid the collision was for the jury. The question was presented whether or not as defendant approached the wagon the roadway was so well lighted up that defendant saw or in the exercise of reasonable care could have seen the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which if placed upon the wagon of plaintiff would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.

At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge “that the failure to have a light on plaintiff’s vehicle is prima facie evidence of contributory negligence on the part of plaintiff.” The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff unless such contributory negligence was the proximate and not a remote contributory cause of the injury. (Laidlaw v. Sage, 158 N. Y. 73; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, and cases cited.) The *181request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff’s intestate’s death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by “proximate cause” is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the Highway Law and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident: At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause but the proximate cause of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided had the defendant been upon his side of the road or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight and observed plaintiff and her intestate as he approached them, they being visible at the time. The defendant’s request to charge which was granted, “that plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses that the verdict of the jury must be for the defendant,” presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff- and her witnesses and we cannot surmise or *182infer that, the accident would not have happened had a light been located on the wagon.

In my opinion the charge of the trial justice upon the subject of proximate cause of the accident was a full and complete statement of the law of the case, especially when considered in connection with the charge that the slightest negligence on the part of the intestate contributing to the accident would require a verdict for defendant.

It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg case. That case was decided upon the principle that where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. That proposition was clearly discussed in the Amberg case (Amberg v. Kinley, 214 N. Y. 531) as will appear by the result therein. The doctrine of causal connection therein declared was but a reiteration of the rule laid down in Willy v. Mulledy (78 N. Y, 310); Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26), and numerous other cases.

The charge requested and denied in this case was in effect that a failure to have a light upon the intestate’s wagon was as matter of law such negligence on his part as to defeat the cause of action irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance and diverging from the rule of causal connection.

Hiscock, Ch. J., Pound, McLaughlin, Andrews and Elkus, JJ., concur with Cardozo, J.; Hogan, J., reads dissenting opinion.

Order affirmed.

Lehman, J.

While walking along a highway, Anna Tedla and her brother, John Bachek, were struck by a passing automobile, operated by the defendant Heilman. She was injured and Bachek was killed. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs. Tedla, was engaged in the same occupation. They often picked up junk at the incinerator of the village of Islip. At the time of the accident they were walking along “Sunrise Highway” and wheeling baby carriages containing junk and wood which they had picked up at the incinerator. It was about six o’clock, or a little earlier, *126on a Sunday evening in December. Darkness bad already set in. Bachek was carrying a lighted lantern, or, at least, there is testimony to that effect. The jury found that the accident was due solely to the negligence of the operator of the automobile. The defendants do not, upon this appeal, challenge the finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla and her brother were guilty of contributory negligence as matter of law.

Sunrise Highway, at the place of the accident, consists of two roadways, separated by a grass plot. There are no footpaths along the highway and the center grass plot was soft. It is not unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances, but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably prudent person would use. The Vehicle and Traffic Law (Cons. Laws, ch. 71) provides that “Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out, except that such pedestrians shall keep to the left of the center fine thereof, and turn to their left instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving signals.” (§ 85, subd. 6.) Mrs. Tedla and her brother did not observe the statutory rule and, at the time of the accident, were proceeding in easterly direction on the east-bound or right-hand roadway. The defendants moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. They did not, in the courts below, urge that any negligence in other respect of Mrs. Tedla or her brother bars a recovery. The trial judge left to the jury the question whether failure to observe the statutory rule was a proximate cause of the accident; he left to the jury no question of other fault or negligence on the part of Mrs. Tedla or her brother, and the *127defendants did not request that any other question be submitted. Upon this appeal, the only question presented is whether, as matter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center line of a highway constitutes contributory negligence which bars any recovery by the plaintiff.

Vehicular traffic can proceed safely and without recurrent traffic tangles only if vehicles observe accepted rules of the road. Such rules, and especially the rule that all vehicles proceeding in one direction must keep to a designated part or side of the road — in this country the right-hand side — have been dictated by necessity and formulated by custom. The general use of automobiles has increased in unprecedented degree the number and speed of vehicles. Control of traffic becomes an increasingly difficult problem. Rules of the road, regulating the rights and duties of those who use highways, have, in consequence, become increasingly important. The Legislature no longer leaves to custom the formulation of such rules. Statutes now codify, define, supplement and, where changing conditions suggest change in rule, even change rules of the road which formerly rested on custom. Custom and common sense have always dictated that vehicles should have the right of way over pedestrians and that pedestrians should walk along the edge of a highway so that they might step aside for passing vehicles with least danger to themselves and least obstruction to vehicular traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians with the same uniformity as by vehicles; though, in general, they probably followed, until recently, the same rules as vehicles.

Pedestrians are seldom a source of danger or serious obstruction to vehicles and when horse-drawn vehicles were common they seldom injured pedestrians, using a highway with reasonable care, unless the horse became unmanageable or the driver was grossly negligent or guilty of willful wrong. Swift-moving motor vehicles, it was soon recognized, do endanger the safety of pedestrians crossing highways, and it is imperative that there the relative rights and duties of *128pedestrian s and of vehicles should be understood and observed. The Legislature in the first five subdivisions of section 85 of the Vehicle and Traffic Law has provided regulations to govern the conduct of pedestrians and of drivers of vehicles when a pedestrian is crossing a road. Until, by chapter 114 of the Laws of 1933, it adopted subdivision 6 of section 85, quoted above, there was no special statutory rule for pedestrians walking along a highway. Then for the first time it reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided that pedestrians shall keep to the left of the center line of a highway.

The plaintiffs showed by the testimony of a State policeman that “there were very few cars going east” at the time of the accident, but that going west there was “very heavy Sunday night traffic.” Until the recent adoption of the new statutory rule for pedestrians, ordinary prudence would have dictated that pedestrians should not expose themselves to the danger of walking along the roadway upon which the “very heavy Sunday night traffic” was proceeding when they could walk in comparative safety along a roadway used by very few cars. It is said that now, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of law when they use the safer roadway, unless that roadway is left of the center of the road. Disregard of the statutory rule of the road and observance of a rule based on immemorial custom, it is said, is negligence which as matter of law is a proximate cause of the accident, though observance of the statutory rule might, under the circumstances of the particular case, expose a pedestrian to serious danger from which he would be free if he followed the rule that had been established by custom. If that be true, then the Legislature has decreed that pedestrians must observe the general rule of conduct which it has prescribed for their safety even under circumstances where observance would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of law for acting as prudence dictates. It is unreasonable to ascribe to the Legislature an intention that *129the statute should have so extraordinary a result, and the courts may not give to a statute an effect not intended by the Legislature.

The Legislature, when it enacted the statute, presumably knew that this court and the courts of other jurisdictions had established the general principle that omission by a plaintiff of a safeguard, prescribed by statute, against a recognized danger, constitutes negligence as matter of law which bars recovery for damages caused by incidence of the danger for which the safeguard was prescribed. The principle has been formulated in the Restatement of the Law of Torts: “A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type.” (§ 469.) So where a plaintiff failed to place lights upon a vehicle, as required by statute, this court has said: “we think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. (Highway Law, § 329-a.) By the very terms of the hypothesis, to omit, wilfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this State.” (Martin v. Herzog, 228 N. Y. 164, 168, per Cardozo, J.) The appellants lean heavily upon that and kindred cases and the principle established by them.

The analogy is, however, incomplete. The “established rule” should not be weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where “by the very terms of the hypothesis” it can have no proper application. At times the indefinite and flexible standard of care of the traditional reasonably prudent man may be, in the opinion of the Legislature, an insufficient *130measure of the care which should be exercised to guard against a recognized danger; at times, the duty, imposed by custom, that no man shall use what is his to the harm of others provides insufficient safeguard for the preservation of the life or limb or property of others. Then the Legislature may by statute prescribe additional safeguards and may define duty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the care required is no longer what the reasonably prudent man would do under the circumstances but what the Legislature has commanded that is the rule established by the courts and “by the very terms of the hypothesis” the rule applies where the Legislature has prescribed safeguards “for the benefit of another that he may be preserved in life or limb.” In that field debate as to whether the safeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to that fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably necessary and where the legislative anticipation of dangers is realized and harm results through heedless or willful omission of the prescribed safeguard, injury flows from wrong and the wrongdoer is properly held responsible for the consequent damages.

The statute upon which the defendants rely is of different character. It does not prescribe additional safeguards which pedestrians must provide for the preservation of the life or limb or property of others, or even of themselves, nor does it impose upon pedestrians a higher standard of care. What the statute does provide is rules of the road to be observed by pedestrians and by vehicles, so that all those who use the road may know how they and others should proceed, at least under usual circumstances. A general rule of conduct — and, specifically, a rule of the road — may accomplish its intended purpose under usual conditions, but, when the unusual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results.

Negligence is failure to exercise the care required by law. Where a statute defines the standard of care and the safe*131guards required to meet a recognized danger, then, as we have said, no other measure may be applied in determining whether a person has carried out the duty of care imposed by law. Failure to observe the standard imposed by statute is negligence, as matter of law. On the other hand, where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb or property but merely codifies or supplements a common-law rule, which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. We may assume reasonably that the Legislature directed pedestrians to keep to the left of the center of the road because that would cause them to face traffic approaching in that lane and would enable them to care for their own safety better than if the traffic approached them from the rear. We cannot assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger.

The distinction in the effect of statutes defining a standard of care or requiring specified safeguards against recognized dangers and the effect of statutes which merely codify, supplement or even change common-law rules or which prescribe a general rule of conduct calculated to prevent accidents but which under unusual conditions may cause accidents, has been pointed out often. Seldom have the courts held that failure to observe a rule of the road, even though embodied in a statute, constitutes negligence as matter of law where observance would subject a person to *132danger which might be avoided by disregard of the general rule. “In the United States and in England certain rules regarding the rights of vehicles and persons meeting or passing in the public highway have been established by long continued custom or usage, or, in many jurisdictions, by statutory regulation. These rules and regulations are usually spoken of as ‘the law of the road’ or the ‘rules of the road.’ These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules when the injury might have been averted by variance therefrom, may be charged with fault; * * * the exceptions to the rule of the road depend upon the special circumstances of the case, and in respect to which no general rule can be applied.” (13 Ruling Case Law, tit. “Highways,” § 222. Cf. Clarke v. Woop, 159 App. Div. 437; 2 Thomas on Negligence [2d ed.], p. 2346; 3 Shearman & Redfield on The Law of Negligence, § 649; Herdman v. Zwart, 167 Iowa, 500, 503; McElhinney v. Knittle, 199 Iowa, 278; Piper v. Adams Express Co., 270 Penn. St. 54; Dohm v. Cardozo, 165 Minn. 193; Snow v. Biggs, 172 Ark. 835, 840. See, also, 24 A. L. R. 1304, note; 63 A. L. R. 277, note.)

The generally accepted rule and the reasons for it are set forth in the comment to section 286 of the Restatement of the Law of Torts: “Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. The provisions of statutes, intended to codify and supplement the rules of conduct which are established by a course of judicial decision or by custom, are often construed as subject to the same limitations and exceptions as the rules which they supersede. Thus, a *133statute or ordinance requiring all persons to drive on the right side of the road may be construed as subject to an exception permitting travellers to drive upon the other side, if so doing is likely to prevent rather than cause the accidents which it is the purpose of the statute or ordinance to prevent.”

Even under that construction of the statute, a pedestrian is, of course, at fault if he fails without good reason to observe the statutory rule of conduct. The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong. (Cf. Dohm v. Cardozo, supra; Heidman v. Zward, supra; Clarke v. Woop, supra.)

I have so far discussed the problem of the plaintiffs’ right to compensation for the damages caused by defendants’ negligence as if it depended solely upon the question of whether the pedestrians were at fault, and I have ignored the question whether their alleged fault was a proximate cause of the accident. In truth, the two questions cannot be separated completely. If the pedestrians had observed the statutory rule of the road they would have proceeded easterly along the roadway on the left of the center grass plot, and then, it must be conceded, they would not have been struck by the automobile in which the defendants were riding, proceeding in the same direction along the roadway on the right. Their presence on the roadway where they were struck was an essential condition of their injury. Was it also as matter of law a proximate cause of the accident? “The position of a vehicle, which has been struck by another, may or may not have been one of the causes of the striking. Of course it would not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly or proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. *134* * * What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case.” (Newcomb v. Boston Protective Department, 146 Mass. 596, 604.) Here the jury might find that the pedestrians avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway; that the operator of the automobile was entirely heedless of the possibility of the presence of pedestrians on the highway; and that a pedestrian could not have avoided the accident even if he had faced oncoming traffic. Under those circumstances the question of proximate cause, as well as the question of negligence, was one of fact.

In each action, the judgment should be affirmed, with costs.

Crane, Ch. J., Hubbs, Loughran and Rippey, JJ., concur; O’Brien and Finch, JJ., dissent on the authority of Martin v. Herzog (228 N. Y. 164).

Judgments affirmed.

POSNER, Chief Judge.

We have before us a charming miniature of a case. In 1993 Dolores Howard, age 65, slipped and fell in a puddle of liquid soap that someone — no one knows who — had *359spilled on the floor of the aisle in a Wal-Mart store in Cahokia, Illinois. She was injured, and brought suit against Wal-Mart in an Illinois state court; the defendant removed the case to federal district court. At the time the suit was brought and removed, there was enough possibility that Howard’s injury was severe (the injured leg had become infected) to lift the case just over the then $50,000 threshold for a diversity suit. But later she recovered and at trial asked for only $25,000 in damages. The jury awarded her $18,750. Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential effect in future slip-and-fall cases of the judge’s refusal to grant judgment for Wal-Mart as a matter of law. We don’t tell people whether to exercise their rights of appeal, but we feel impelled to remind Wal-Mart and its lawyer that a district court’s decision does not have precedential authority, e.g., Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003-04 (7th Cir.1996); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995)—let alone a jury verdict or an unreported order by a magistrate judge (by any judicial officer, for that matter) refusing on unstated grounds to throw out a jury’s verdict.

The issue on appeal is whether there was enough evidence of liability to allow the case to go to a jury, and, specifically, whether there was enough evidence that an employee rather than a customer spilled the soap. See Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 148 N.E.2d 434 (1958); Wind v. Hy-Vee Food Stores, Inc., 272 Ill.App.3d 149, 208 Ill.Dec. 801, 650 N.E.2d 258, 262 (1995). Even if a customer spilled it, Wal-Mart could be liable if it failed to notice the spill and clean it up within a reasonable time. Donoho v. O’Connell’s, Inc., supra, 148 N.E.2d at 437-38; Swartz v. Sears, Roebuck & Co., 264 Ill.App.3d 254, 201 Ill.Dec. 210, 636 N.E.2d 642, 654 (1993). It has a legal duty to make its premises reasonably safe for its customers. But there is no evidence with regard to how much time elapsed between the spill and the fall; it may have been minutes. Wal-Mart is not required to patrol the aisles continuously, but only at reasonable intervals. See Culli v. Marathon Petroleum Co., 862 F.2d 119 (7th Cir.1988) (collecting Illinois cases). So Howard could prevail only if there was enough evidence that an employee spilled the soap to satisfy the requirement of proving causation by a preponderance of the evidence.

The accident occurred in the morning, and morning is also when the employees stock the shelves. The defendant presented evidence that the puddle of liquid soap on which Howard slipped was about the diameter of a softball and was in the middle of the aisle. Howard testified that it was a large puddle on the right side of the aisle and “when I got up, I had it all over me, my coat, my pants, my shoes, my socks.” An employee could have dropped one of the plastic containers of liquid soap on the floor while trying to shelve it and the container could have broken and leaked. Or the cap on one of the containers might have come loose. Or the containers might have been packed improperly in the box from which they were loaded onto the shelves and one of them might have sprung a leak. Alternatively, as Wal-Mart points out, a customer, or a customer’s child, might have knocked a container off the shelf. A curious feature of the case, however, is that the container that leaked and caused the spill was never found. Howard argues, not implausibly, that a customer who had come across a damaged container or had damaged it would be unlikely to purchase it, having lost part of its contents — a large part, if Howard’s testimony was believed; and the jury was entitled to believe it — or indeed to put it in her shopping cart and risk smearing her other purchases with liquid soap. In light of this consideration, we cannot say that the jury was irrational in finding that the balance of probabilities tipped in favor of the plaintiff, though surely only by a hair’s breadth.

Is a hair’s breadth enough, though? Judges, and commentators on the law of evidence, have been troubled by cases in which the plaintiff has established a probability that only minutely exceeds 50 percent that his version of what happened is correct. The concern is illuminated by the much-discussed bus hypothetical. Suppose that the plaintiff is hit by a bus, and it is known that 51 percent of the buses on the road *360where the plaintiff was hit are owned by Bus Company A and 49 percent by Company B. The plaintiff sues A and asks for judgment on the basis of this statistic alone (we can ignore the other elements of liability besides causation by assuming they have all been satisfied, as in this case); he tenders no other evidence. If the defendant also puts in no evidence, should a jury be allowed to award judgment to the plaintiff? The law’s answer is “no.” See Richard W. Wright, “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts,” 73 la. L. Rev. 1001, 1050-1051 (1988), and cases cited there. Our hypothetical ease is a variant of Smith v. Rapid Transit, 317 Mass. 469, 58 N.E.2d 754 (1945), where the court held that it “was not enough” “that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident.” Id. at 755. Kaminsky v. Hertz Corp., 94 Mich.App. 356, 288 N.W.2d 426 (1979), is sometimes cited as being contrary to Smith, but this is not an accurate reading. Besides the fact that the corresponding percentages were 90 percent and 10 percent, there was nonstatistical evidence pointing to the defendant’s ownership of the truck that had caused the accident.

Smith and Kaminsky involve explicitly probabilistic evidence. But as all evidence is probabilistic in the sense of lacking absolute certainty, all evidence can be expressed in probabilistic terms, and so the problem or dilemma presented by those cases is general. The eyewitness might say that he was “99 percent sure” that he had seen the defendant, and jurors appraising his testimony might reckon some different probability that he was correct. What powers the intuition that the plaintiff should lose the bus case is not the explicitly probabilistic nature of the evidence, but the evidentiary significance of missing evidence. If the 51/49 statistic is the plaintiff’s only evidence, and he does not show that it was infeasible for him to obtain any additional evidence, the inference to be drawn is not that there is a 51 percent probability that it was a bus owned by A that hit the plaintiff. It is that the plaintiff either investigated and discovered that the bus was actually owned by B (and B might not have been negligent and so not liable even if a cause of the accident, or might be judgment-proof and so not worth suing), or that he simply has not bothered to conduct an investigation. If the first alternative is true, he should of course lose; and since it may be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent and the plaintiff has failed to carry his burden of proof. If the second alternative is true — the plaintiff just hasn’t conducted an investigation — he still should lose. A court shouldn’t be required to expend its scarce resources of time and effort on a case until the plaintiff has conducted a sufficient investigation to make reasonably clear that an expenditure of public resources is likely to yield a significant social benefit. This principle is implicit in the law’s decision to place the burden of producing evidence on the plaintiff rather than on the defendant. Suppose it would cost the court system $10,000 to try even a barebones case. This expenditure would be worthless from the standpoint of deterring accidents should it turn out that the bus was owned by B. It makes sense for the court to require some advance investigation by the plaintiff in order to increase the probability that a commitment of judicial resources would be worthwhile.

These objections to basing a decision on thin evidence do not apply to the present case. Not only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it would have been unreasonable, given the stakes, to expect her to conduct a more thorough investigation. This is a tiny case; not so tiny that it can be expelled from the federal court system without a decision, but so tiny that it would make no sense to try to coerce the parties to produce more evidence, when, as we have said, no inference can be drawn from the paucity of evidence that the plaintiff was afraid to look harder for fear that she would discover that a customer and not an employee of Wal-Mart had spilled the soap.

We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a reported appellate decision, unlike the *361decision of the district court, will have precedential authority!

Affirmed.

LIPEZ, Circuit Judge.

American Airlines, Inc. appeals from a judgment of $150,000 in favor of Ananias Grajales-Romero, who was injured by a collapsing check-in counter sign at an airport in St. Kitts. American claims that the court erred in allowing the case to go to the jury on the plaintiffs theory that American was liable for the negligence of Executive Airlines, d/b/a American Eagle, which American argues actually owned, operated, and maintained the check-in counter. American further claims that there was insufficient evidence of negligence to sustain the jury verdict in this case, and that the court erred by not vacating or remitting the damages award, striking certain defense witnesses, admitting some evidence offered by plaintiff, and refusing to give several jury instructions proposed by American. Grajales cross-appeals, claiming that the court erred in not awarding attorney’s fees on the basis of the “obstinacy” of the defendants. We affirm.

I.

Factual background

We present the facts as a jury might have found them, consistent with the record but in the light most favorable to the verdict. See Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 151 (1st Cir.1990). On July 29, 1994, Plaintiff Ananias Grajales-Romero (“Grajales”) was waiting in line at an American Eagle1 check-in counter in the St. Kitts airport for a return flight to San Juan, Puerto Rico. His acquaintance Terry Connor had accompanied him to the check-in counter. Connor attempted to load Grajales’s luggage onto the weigh-in scale adjacent to the check-in counter. In doing so, he grabbed onto an ashtray built into the countertop to gain some leverage in lifting the luggage. The countertop was attached by a hinge to the vertical front facing of the counter. When Connor pulled on the ashtray, the countertop came loose, and pivoted forward on its hinge. A metal signpost and sign were attached to the countertop, and this signpost and sign also pivoted forward with the countertop. As this was happening, plaintiff Grajales was looking down at his ticket. The signpost and/or sign struck Grajales on the top of his head, opening up a two-inch long wound. Although he did not lose consciousness or fall to the floor, he was taken to the St. Kitts hospital, where he received four stitches. After the accident, Grajales *293experienced neck pains, headaches, and forgetfulness. He was diagnosed by a neurologist as suffering from post-concussion syndrome and a cervical sprain secondary to the accident.

Grajales filed a complaint against American, AMR Corp., and AMR Eagle, Inc. in the federal district court for the District of Puerto Rico on July 28, 1995. On February 11, 1997, the district court dismissed the claims against co-defendants AMR Corp. and AMR Eagle, Inc. for lack of personal jurisdiction. During the course of trial, held from May 20 to May 27, 1998, American claimed that its witnesses Tomas del Valle and Fred Voltaggio were unavailable because they had been transferred to other positions with American. In their place, American offered the testimony of employees who now held the posts vacated by del Valle and Voltaggio; however, the court struck the replacement witnesses because they had not been disclosed in the course of pre-trial discovery. While Vol-taggio eventually testified, del Valle did not, and the court granted a missing witness instruction telling the jurors that they could infer that the testimony of del Valle would have been unfavorable to American. The court refused to give an instruction on the doctrine of res ipsa loquitur requested by Grajales, and refused several instructions offered by American. The jury found American liable in the amount of $150,000. The court issued its judgment accordingly, and refused Grajales’ claim for attorney’s fees under Puerto Rican law. Both parties appealed.

II.

Agency by Apparent Authority

American argues that there was insufficient evidence to support a finding that it was hable under agency principles for any negligence by Executive Airlines. It claims that the theories advanced by Gra-jales to establish American’s liability for the accident—namely, agency by estoppel and agency by apparent authority—were a subterfuge allowing Grajales to forum-shop into federal court, where he was entitled to a jury trial. See Marshall v. Perez Arzuaga, 828 F.2d 845, 849 (1st Cir.1987) (“Puerto Rico, a civil law jurisdiction, never uses juries in civil cases.”). We will address only Graj ales’s “apparent authority” claim, which provides an adequate basis for American’s liability.

Under Puerto Rico law, an apparent principal may be held liable for the acts of its apparent agent where the apparent principal’s actions “led the plaintiffs to reasonably believe [in its] representation” of authority and control over the apparent agent, through the apparent principal’s conduct, including its “silence, evasive language and appearances.” Berrios v. U.P.R., 116 D.P.R. 88, 16 P.R. Offic. Trans. 112, 122 (1985).2 The Supreme Court of Puerto Rico has applied the doctrine where “persons who used the services of the [apparent agent] could not possibly know or had no way of knowing that the entity they were dealing with was not” the apparent principal or an agent thereof. Id. at 122-28. The Court has also applied the doctrine where the plaintiff “trusted in good faith” in defendant’s conduct, and where that “trust could lead a reasonable person to believe that in fact there was a principal-agent relationship.” Vega v. Medical Serv. Admin., 117 D.P.R. 138, 17 P.R. Offic. Trans. 168, 173 (1986).3

The evidence produced at trial was more than sufficient to allow a reasonable *294jury to conclude that Grajales trusted in good faith in conduct that “could lead a reasonable person to believe that in. fact there was a principal-agent relationship.” Specifically, the jury could have found that Grajales’s ticket, issued by American Airlines, identified the carrier as “AA,” an abbreviation for American Airlines. The telephone information line for American Eagle flights is the American Airlines telephone information line. The passenger check-in counters in both San Juan and St. Kitts bore American Airlines logos as well as American Eagle logos. The in-flight magazines on Graj ales’s flight were the American Airlines magazines “American Ways” and “Latitudes.” The personnel staffing the flights wore uniforms and nametags closely resembling American Airlines uniforms and nametags. American Airlines’ destination guide (a schedule of flight availability) lists St. Kitts as a destination. Grajales testified that he relied on such information in choosing to fly with American Eagle, and that he assumed it was part of American Airlines. A reasonable jury could conclude from these facts that American’s conduct led Grajales reasonably to believe that there was in fact a principal-agent relationship between American and Executive Airlines d/b/a American Eagle, and thus American would be liable for any negligence on the part of Executive.

m.

Sufficiency of the Evidence of Negligence

(a) Res Ipsa Loquitur

American states that

[pjlaintiff produced no evidence — either through customary airline practices, past practices, or expert testimony' — to establish a standard of care by which American should have operated. Further, plaintiff presented no evidence regarding the inspection, maintenance, and operation of the ticket counter, and made no attempt to explain in what manner any such conduct might have constituted negligence.

From these assertions, and the fact that the court refused to give the jurors Gra-jales’s proposed res ipsa loquitur instruction, American argues that “[n]o jury could reasonably conclude that American exercised less than reasonable care from the unexplained fact that an accident occurred.”

We agree with American that Grajales did not produce either direct or circumstantial evidence explaining how American violated its duty of care.4 Grajales offered no evidence, for example, suggesting that the ticket counter had been improperly designed, installed, maintained, or operated.5 Instead, Grajales relied on *295the fact of an unexpected occurrence, arguing that the counter top would not have fallen over and struck him unless American had violated its duty of care. The Supreme Court of Puerto Rico has ruled that the fact of an unexplained occurrence cannot establish an inference of negligence unless the conditions of res ipsa loquitur are satisfied: “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of defendant; [and] (3) it must not be due to any voluntary action on the part of plaintiff.” See Community Partnership v. Presbyterian Hosp., 88 P.R.R. 379, 386 (1963). Given the lack of direct or other circumstantial evidence on American’s violation of its duty of care, we must consider whether the conditions of res ipsa loquitur were satisfied here.

We conclude that they were. Indeed, the first two elements of res ipsa loquitur were easily established. A reasonable jury could have concluded that the accident was of a kind which “ordinarily does not occur in the absence of someone’s negligence,” and that the accident was “caused by an ... instrumentality within the exclusive control of [the] defendant.” See Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102, 1106 (1st Cir.1986) (“[R]es ipsa loquitur applies [if] ... the defendant is responsible for the instrumentality”) (applying Puerto Rico law).

The res ipsa loquitur requirement that the accident not be caused by any “voluntary action” on the part of the plaintiff posed a more difficult challenge for Grajales. American argues that a res ipsa loquitur inference was unreasonable because the evidence indicates that plaintiffs acquaintance Connor took the “voluntary action” of pulling on the counter-top. Even if Connor’s actions could be attributed to Grajales, American’s argument misses its mark. The test is not whether the plaintiff took any voluntary action, but whether that voluntary action can be blamed for the accident. See De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 126 (1st Cir.1991) (plaintiff must be “free of voluntary responsibility for the occurrence”) (applying Puerto Rico law). The evidence here was sufficient to support a finding that Grajales and his colorable agent Connor were blameless, having done nothing more than “attempt to [use the instrumentality] in the ordinary manner,” Colmenares Vivas, 807 F.2d at 1107. So long as the jurors could have concluded from the evidence that Connor’s use of the counter for leverage constituted a normal usage of the counter by a customer, the jury could have inferred American’s negligence.

While there was sufficient evidence on each of the conditions of res ipsa loquitur, the district court did not provide the jury with a res ipsa loquitur instruction, as Grajales had requested. We must therefore consider an argument implicit in American’s challenge to the sufficiency of the evidence of negligence — that a jury verdict cannot be justified on the basis of res ipsa loquitur when the jurors were never instructed on the doctrine.

Puerto Rico’s statement of the three elements of res ipsa loquitur is derived from the first edition of a well-known treatise on evidence, 4 Wigmore, Evidence § 2509 (1st ed.1905). See W. Page Keeton et al., Prosser and Keeton on Torts 244 (Lawyer’s 5th ed.1984). That origin confirms that a res ipsa loquitur instruction explains to the jury a specific form of permissible inference from circumstantial evidence of negligence. Given this purpose, jurors who can draw the inference of negligence even without a res ipsa loquitur instruction should be permitted to do so. Justice Traynor came to the same conclusion:

The doctrine of res ipsa loquitur concerns a type of circumstantial evidence upon which plaintiff may rely to discharge his burden of proving defendant’s negligence.... There is no rea*296son why the jury may not draw that inference without, as well as with, a specific instruction authorizing them to do so.

Rose v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335, 339 (Cal.1952).6 In this case, the jurors were adequately instructed on inference and circumstantial evidence, and Gra-jales made the specific inference contemplated by a res ipsa loquitur instruction the linchpin of his theory of the case.7 Given that there was sufficient evidence on each of the res ipsa loquitur requirements, the jurors were entitled to make the res ipsa loquitur inference even in the absence of a specific instruction.8

(b) Proximate Cause

American protests that there was insufficient evidence to allow the jury to find that its negligence was the proximate cause of Grajales’s injuries. The res ipsa loquitur doctrine only permits an inference that the defendant engaged in negligent conduct. See Colmenares Vivas, 807 F.2d at 1104. The plaintiff still must prove that the negligent conduct was the proximate cause of the accident. Cf. Donnelly v. National R.R. Passenger Corp. (Amtrak), 16 F.3d 941, 946 (8th Cir.1994) (“res ipsa loquitur has no application to proximate cause”) (North Dakota law); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1328 (11th Cir.1982) (same) (Alabama law).

In Puerto Rico, to establish proximate cause, the plaintiff must prove that an accident was foreseeable and could have been avoided if the defendant had not breached its duty of care. See Coyne v. Taber Partners I, 53 F.3d 454, 459 (1st Cir.1995); Marshall v. Perez Arzuaga, 828 F.2d 845, 847 (1st Cir.1987). The defendant can defeat proximate causation by proving the occurrence of an “intervening cause” that was not foreseeable. See Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 972 (1st Cir.1991).

A reasonable jury could easily have found that Grajales satisfied his proximate causation burden. See Coyne, 53 F.3d at 460 (“[S]uch questions ordinarily are grist for the factfinder’s mill.”). There was ample evidence produced at trial that *297American’s negligence—its failure to secure the countertop properly—created a foreseeable risk of an accident of the general type involved in this case. See Malave-Felix, 946 F.2d at 972 (“precise risk” or “exact result” need not be foreseeable). Moreover, American did not offer sufficient evidence of an unforeseeable intervening cause to compel us to reverse. As we noted in our discussion of res ipsa loquitur, a reasonable jury could have concluded that Connor’s actions were blameless. For the same reasons, a jury could have concluded that a customer’s use of the counter for leverage was not the type of unforeseeable event that creates an “intervening cause” and clears American of causal responsibility.

IV.

American’s miscellaneous objections

(a) Exclusion of substitute witnesses

In response to Graj ales’s interrogatories (and also in an initial scheduling memorandum), American indicated that its trial witnesses would include Tomas del Valle, who was president of Executive Airlines at the time of the accident, and Fred Voltaggio, who was Manager for Support Services for American Airlines at that time. American then attempted, in its proposed pretrial order, to substitute José Machado, current Vice President of Flight Operations for Executive Airlines, for del Valle, who had left Executive Airlines to become the Managing Director for American’s operations at Los Angeles International Airport. American also attempted to substitute Ernesto Quidgley, Manager for Support Services for American Airlines, for Voltaggio, who had become regional manager for American Airlines’ Carribean cargo sales by the time of trial.9

Grajales filed a motion before a magistrate judge opposing the witness substitutions on the grounds that the new witnesses had not been properly disclosed during the course of discovery. The magistrate judge granted that motion on May 14, 1998. Four days later, American filed a motion before the trial court seeking reconsideration of the magistrate judge’s ruling. The trial court agreed to reconsider the matter but, in an oral order on May 20, 1998, it reaffirmed the magistrate judge’s ruling and excluded the substitute witnesses as a discovery sanction for American’s failure to disclose them in the appropriate pretrial disclosures as required by Fed.R.Civ.P. 37(c)(1).

Rule 37(c)(1) provides an exclusionary sanction for failures to disclose witnesses as required by Fed.R.Civ.P. 26: “A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is hamless, be permitted to use as evidence at trial ... any witness ... not so disclosed.” A district court’s Rule 37 sanctions decision is reviewed for abuse of discretion. See Barreto v. Citibank, 907 F.2d 15, 16 (1st Cir.1990) (per curiam). Here, it is undisputed that Machado and Quidgley were not disclosed in response to plaintiffs interrogatories, as required by Rule 26. American offered no excuse for failing to disclose Machado and Quidgley while discovery was open, stating only that it was now “forced” to call upon unannounced witnesses since del Valle and Voltaggio, its originally designated witnesses, no longer occupied the same positions they held at the time of the accident. The court noted, however, that del Valle and Voltaggio, regardless of any change in position, were currently employees of American, subject to its control and available to testify. On these facts, we find no abuse of discretion in the court’s refusal to allow unannounced witnesses to testify.

(b) “Missing Witness” Instruction

Voltaggio testified at trial; however, del Valle, while present during some of *298the trial, failed to appear on the day the court expected him to testify. Upon Gra-jales’ request, the court gave a missing witness instruction.10

A “missing witness” instruction is permissible when a party fails to call a witness who is either (1) “favorably disposed” to testify for that party, by virtue of status or relationship with the party or (2) “peculiarly available” to that party, such as being within the party’s “exclusive control.” United States v. DeLuca, 137 F.3d 24, 38 (1st Cir.1998). We review the grant and denial of missing witness instructions for abuse of discretion. See id.

Del Valle had appeared in court during part of the trial but then failed to reappear when his testimony was postponed until the next business day. The court found that del Valle, an employee of American, was under its control, and that American had offered no acceptable justification for del Valle’s absence. Thus there was ample evidence that del Valle’s status left him “favorably disposed” to American and that he was “peculiarly available” to the airline. Id. Either one of these grounds is sufficient to justify a missing witness instruction. Moreover, the court suggested that American had tactical reasons for not producing del Valle. Specifically, del Valle’s move from American Eagle to American Airlines undercut American’s efforts to emphasize the minimal nature of the connection between the airlines.11 We find no abuse of discretion in the court’s issuance of a missing witness instruction.

(c) Admission of testimony about a non-testifying defense expert’s report

Grajales submitted to a medical examination performed by Dr. Juan J. Fumero-Pérez (“Fumero”), an expert witness hired by American. American provided Dr. Fumero’s report to Grajales, as required under Fed.R.Civ.P. 35(b).12 In this report, Dr. Fumero concluded that Grajales was suffering from a post-concussion syndrome. Apparently unhappy with this news, American notified Grajales that it was designating Fumero a non-testifying expert witness under Fed.R.Civ.P. 26(b)(4)(B). At trial, the court allowed Grajales to extract a brief mention of Fumero’s conclusions from both American’s medical expert and two medical experts hired by Grajales, Dr. Boris Rojas-Rodriguez and Dr. Maria T. Margarida Julia. The court also allowed Grajales to introduce evidence that American had initially hired Fumero. American argues that the references to the Fumero report were inadmissible hearsay and violated Fed.R.Civ.P. 26(b)(4)(B).13 American also argues that evidence of the fact that it *299hired Fumero was unduly prejudicial under Fed.R.Evid. 403.14

We decline to consider American’s hearsay challenge to this evidence because it was not presented below. Assuming arguendo that American’s other objections were valid, we find that any error in the admission of this evidence was harmless. See Fed.R.Civ.P. 61.15 Grajales invoked only brief references to the Fumero report from the three experts, and Fumero’s conclusions were cumulative of evidence presented convincingly and at great length by Grajales’s experts. American’s “substantial rights” were thus unaffected. Id.

(d) American’s proposed instructions

American objects to the court’s refusal to give three proposed jury instructions. “The function of the appellate court with respect to jury instructions is to satisfy itself that the instructions show no tendency to confuse or mislead the jury with respect to the applicable principles of law.” Harrington v. United States, 504 F.2d 1306, 1317 (1st Cir.1974). “Beyond that, the district court’s choice of jury instructions is a matter of discretion.” Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 564 (1st Cir.1986); see also Kelley v. Airborne Freight Corp., 140 F.3d 335, 355 (1st Cir.1998) (reviewing refusal of instruction for abuse of discretion).

(1). Use of trademark as evidence of apparent authority

The court refused to give American’s proposed final instruction # 25, which stated in relevant part that “[t]he mere use of the trademark name, logo and color scheme by a third party is not a legal indication that the owner of the name or logo has actual or apparent control” over the apparent agent. The court did give a broader instruction on apparent authority, not challenged on appeal, which closely tracked the Puerto Rico Supreme Court’s articulation of the doctrine in Berrios. The failure to include a more detailed, supplemental instruction, even if accurate, is not error. See Marbucco Corp. v. Suffolk Constr. Co., 165 F.3d 103, 106 (1st Cir.1999).

(2). Failure to maintain proper medical records

Dr. Rojas, a neurologist, examined Grajales and testified on his behalf as an expert witness. He was not, however, Grajales’ treating physician and the medical examination was performed solely to assist Dr. Rojas in the preparation of his testimony. Dr. Rojas testified that he prepared his report on Grajales from handwritten rough notes and then discarded the notes. American requested an instruction stating that a doctor’s failure to “properly maintain his medical records ... diminishes the effectiveness of the records as a reference tool for evaluation of the treatment, attention and care the doctor gave the patient” and “should be considered when evaluating the credibility of the doctor regarding the treatment he gave the patient.” The court refused to give this instruction, ruling that the stated authority therefor, Sharon Riley v. Rodri *300 guez de Pacheco, 119 D.P.R. 762, 780 (1987), was distinguishable as a case where a physician was evaluating a patient for the purposes of treatment and not solely for litigation purposes. That distinction is obvious from the wording of the instruction. In any event, the jury could have drawn the inference described without instruction if they found that the facts merited it. We find no abuse of discretion in the court’s refusal to give this instruction.

(3). Definition of inference

American submitted two supplemental instructions on the definition of inference a few hours before the jury was to be instructed. The court refused to consider these new supplemental instructions because they had been offered after the court’s announced deadline for such instructions. The refusal to consider these instructions as untimely was not an abuse of discretion. See Senra v. Cunningham, 9 F.3d 168, 171 (1st Cir.1993).

y.

Reasonableness of the Damages Award

American argues that there was insufficient evidence to support the award of $150,000. Pursuant to the federal rule, “[a] verdict should stand unless it is ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the conscience of the court,’ or ‘so high that it would be a denial of justice to permit it to stand.’ ” Segal v. Gilbert Color Sys., Inc., 746 F.2d 78, 80-81 (1st Cir.1984). Although the defendant faces a heavy burden in meeting this standard, excessive damage awards are not immune from review. See, e.g., Koster v. Trans World Airlines, Inc., 181 F.3d 24, 35-36 (1st Cir.1999) (finding $716,000 award for emotional distress caused by age discrimination to be excessive, and limiting recovery to $250,000). A reasonable jury, crediting the testimony of Grajales’ medical experts, could have found that Grajales continued to suffer from both chronic neck pain and a loss of cognitive functions, including concentration and memory. An award of $150,000 for such damages was not excessive.

American also argues that the Supreme Court of Puerto Rico reviews awards for consistency with other awards in similar cases; that the district court should have similarly reviewed the jury’s award here, in accordance with the United States Supreme Court’s pronouncement in Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), that a substantive state law standard for review of jury awards must be applied by federal district courts hearing cases under diversity jurisdiction; and that the award in this case is excessive because it is inconsistent with awards approved by the Supreme Court of Puerto Rico in similar cases. In a recent case we expressly rejected this Gasperini argument, based on our reading of Puerto Rico case law: “If local law placed a substantive cap on ... damages, it would control, [citing Gasperini], but Puerto Rico case law suggests no such departure from [the] ordinary practice” of reviewing awards under the federal standards for judging ex-cessiveness, outlined above. Mejias-Quiros v. Maxxam Property Corp., 108 F.3d 425, 427 n. 1 (1st Cir.1997). We therefore find no reason to vacate or modify the jury’s award of damages.

VI.

Grajales’ Cross-Appeal: Attorney’s Fees

Plaintiff-cross appellant Grajales claims that under Puerto Rico law, Fernández v. San Juan Cement Co., Inc., 118 D.P.R. 713, 18 P.R. Offic. Trans. 823, 830 (1987), a party engages in obstinacy when it merely answers a complaint and denies responsibility for a plaintiffs damages, even if it accepts that responsibility later. Puerto Rico’s Rules of Civil Procedure 44.1(d) and 44.3(b) permit respectively the award of attorney’s fees and prejudgment interest when a party has been, in the court’s judgment, obstinate. See 32 *301L.P.R.A.App. III, R. 44.1(d), 44.3(b). When Puerto Rico law supplies the basis for decision in a diversity case, federal courts must apply Rule 44.1(d), Quiñones-Pacheco v. American Airlines, Inc., 979 F.2d 1, 7 n. 8 (1st Cir.1992), and application of Rule 44.3(b) would seem to follow. However, as Grajales concedes, a previous panel of this court, in Mejias-Quiros v. Maxxam Property Corp., 108 F.3d 425, 429 (1st Cir.1997), rejected (years after the Fernandez decision16) the very same claim of obstinacy that Grajales raises here. We agree with the Mejias-Quiros panel that this argument “cannot [be] seriously intended.”17 Id.

Affirmed.

GIBSON, C. J.

This is an action for damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation. The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.

On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for *488the operation, pulling his body to the head of the operating table and, according to plaintiff’s testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Eeser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.

Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him diathermy treatments while he remained in the hospital. The pain did not cease, but spread down to the lower part of his arm, and after his release from the hospital the condition grew worse. He was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work, wearing his arm in a splint on the advice of Dr. Spangard.

Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, plaintiff’s condition was due to trauma or injury by pressure or strain, applied between his right shoulder and neck.

Plaintiff was also examined by Dr. Fernando Garduño, who expressed the opinion that plaintiff’s injury was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.

Plaintiff’s theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants take the position that, assuming that plaintiff’s condition was in fact the result of an injury, there is no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. They attack plaintiff’s *489action as an attempt to fix liability “en masse” on various defendants, some of whom were not responsible for the acts of others; and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved. Their main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.

The doctrine of res ipsa loquitur has three conditions: “ (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal. 2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134]; Moore v. Steen, 102 Cal.App. 723 [283 P. 833] ; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740] ; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228]; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425]; see Shain, Res Ipsa Loquitur, 17 So.Cal.L. Rev. 187, 196.)

There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which *490arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that “the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” (9 Wigmore, Evidence [3d ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Boss v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.B.A.N.S. 298]; Maid v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, “by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them.”

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. (See Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228].) If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering in*491juries during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

The condition that the injury must not have been due to the plaintiff’s voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent. We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134].)

The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant’s control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.

We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeons commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for *492failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would he liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.

In this connection, it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the doctor from responsibility for their negligence. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740]; Ault v. Hall, 119 Ohio St. 422 [164 N.B. 518, 60 A.L.R 128]; and see, also, Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 233].)

It may appear at the trial that, consistent with the principles outlined above, one or more defendants will be found liable and others absolved, but this should not preclude the application of the rule of res ipsa loquitur.. The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.

The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting *493from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.

An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. (See Metz v. Southern Pac. Co., 51 Cal.App.2d 260, 268 [124 P.2d 670].) In the bursting bottle eases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler’s possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [150 P.2d 436].) Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. (See Smith v. O’Donnell, 215 Cal. 714 [12 P. 2d 933]; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur “should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries.” (Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231]; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 435], where the court refers to the “instrumentalities” as including “the unconscious body of the plaintiff.”)

In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e. g., preparation for surgery by nurses *494and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or. an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

The judgment is reversed.

Shenk, J., Curtis, J., Edmonds, J., Carter, J., and Schauer, J., concurred.

Respondents’ petition for a rehearing was denied January 25, 1945. Traynor, J., voted for a rehearing.