Shaw, C. J.

This is an action of trespass, vi et armis, brought by George Brown against George K. Kendall, for an assault and battery; and the original defendant having died pending the action, his executrix has been summoned in. The rule of the common law, by which this action would abate by the death of either party, is reversed in this commonwealth by statute, which provides that actions of trespass for assault and battery shall survive. Rev. Sts. c. 93, § 7.

The facts set forth in the bill of exceptions preclude the supposition, that the blow, inflicted by the hand of the defend • ant upon the person of the plaintiff, was intentional. Thu whole case proceeds on the assumption, that the damage sus - tained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term “unintentional” rather than involuntary, because in some of the cases, it is stated, that the act of holding and using a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act.

It appears to us, that some of the confusion in the cases on this subject has grown out of the long-vexed question, under the rule of the common law, whether a party’s remedy, where he has one, should be sought in an action of the case, or of *295trespass. This is very distinguishable from the question, whether in a given case, any action will lie. The result of these cases is, that if the damage complained of is the immediate effect of the act of the defendant, trespass vi et armis lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East, 593; Hugget v. Montgomery, 2 N. R. 446, Day’s Ed. and notes.

In these discussions, it is frequently stated by judges, that when one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question, whether trespass and not case will lie, assuming that the facts are such, that some action will lie. These dicta are no authority, we think, for holding, that damage received by a direct act of force from another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame v. Bray, the damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark night, which was clearly negligent if not unlawful. In the course of the argument of that case, (p. 595,) Lawrence, J., said: “ There certainly are cases in the books, where, the injury being direct and immediate, trespass has been holden to lie, though the injury was not intentional.” The term “ injury ” implies something more than damage; but, independently of that consideration, the proposition may be true, because though the injury was unintentional, the act may have been unlawful or negligent, and the cases cited by him are perfectly consistent with that supposition. So the same learned judge in the same case says, (p. 597,) “ No doubt trespass lies against one who drives a carriage against another, whether done wilfully or not.” But he immediately adds, “ Suppose one who is driving a carriage is negligently and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter ? and if so, it must be trespass; for every manslaughter includes trespass; ” showing what he understood by a case not wilful.

We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come *296prepared with evidence to show either that the intention, was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev. §§ 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chit. R. 639 ; Com. Dig. Battery, A.(Day’s Ed.) and notes; Vincent v. Stinehour, 7 Verm. 69. In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given; to this effect, that if both plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.

In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or as the law sometimes states it,' inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed.

We are not aware of any circumstances in this case, requiring a distinction between acts which it was lawful and proper to do, and acts of legal duty. There are cas^s, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the *297fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without showing that the damage was caused wholly by the act of the defendant, and that the plaintiff’s own negligence did not contribute as an efficient cause to produce it.

The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant,) then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant.

The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers v. Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Met. 460.

Perhaps the learned judge, by the use of the term extraordinary care, in the above charge, explained as it is by the context, *298may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury, from whatever side it comes, and whether directly proved, or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover. New trial ordered

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.

DENNIS, Justice.

We granted certiorari in this power line accident case to review the Court of Appeal’s judgment setting aside a jury award to the adult children of a man who was electrocuted when he accidentally allowed a citizens band radio antenna to come into contact with an uninsulated 8000 volt electrical wire that spanned the backyard of his residence. Washington v. Louisiana Power & Light, 532 So.2d 798 (La.App. 4th Cir.1988). We affirm. The jury verdict for the plaintiffs was manifestly erroneous. Although the gravity of the injury in a powerline accident is usually severe, under the circumstances of this case the magnitude of the risk was not great because the possibility that the radio antenna would have been brought into contact with the powerline was very slight: five years before his fatal accident the deceased narrowly escaped death or serious injury in a similar mishap; he expressed concern for his life and afterwards exercised great caution and avoided moving the antenna near the powerline; inspections by the power company would have shown only that the antenna was stationed securely at a safe distance from the power line right-of-way; on the occasion of his fatal accident, however, the deceased deliberately and for no apparent good reason raised the antenna from a position lying on the ground a safe distance from the powerline and walked with it in an erect attitude to within a dangerous proximity of the uninsulated wire, where he was electrocuted. Because it was clearly unlikely that the deceased had forgotten about the hot wire, a warning by the power company would not have averted the accident. Consequently, the only safety measures the company might have taken to avoid the accident were to insulate the line, place it underground or raise it to an abnormal height. We conclude that the burden of taking any of these precautions in a case such as this clearly outweighs the magnitude of the risk. This is not a situation in which there was a significant possibility of an accident due to ignorance or inadvertence. If the power company were to be required to redesign or relocate its line here, then it would be forced to do so immediately, and thereafter continually, in the hundreds, perhaps thousands, of locations along its high voltage line rights-of-way at which tall television or radio antennas are safely installed.

The deceased, John Washington, Sr., lived in a subdivision in Marrero, Louisiana with a back yard 118 feet wide. LP & L had a five foot right-of-way across the decedent’s backyard, over which it had strung an uninsulated eight thousand (8000) volt electrical distribution line, approximately 21 andV2 feet above the ground and 23 feet inside the rear property line and fence. LP & L’s right of way and power line ran through many lots adjacent to and beyond *1352Mr. Washington’s property in both directions. The line was clearly visible.

In the 1970’s Mr. Washington began a citizens band radio hobby using a CB antenna on top of his house. Sometime later in the 1970’s the decedent erected a second antenna in a corner of his backyard. He stationed the second antenna as far from the other as possible to reduce interference. The new antenna was designed to fit into a long pipe affixed to a pedestal and to be raised or lowered as if it were a boom. The new antenna itself was only 21' 4" long, but it extended 62 or 63 feet above ground when raised to a vertical posture within the pipe. The pedestal containing the pipe and the antenna was implanted one foot inside the fence which was located on the decedent’s rear property line. The pipe assembly was designed so that the antenna could be raised or lowered only along the rear property line in a direction parallel to and at a safe distance from the powerline. Charles Morton, a close friend who helped the decedent install the antenna, testified that Mr. Washington and he were aware that it could create an electrical hazard if it were not positioned carefully. They chose the back corner of the lot as the safest location.

In 1980 Mr. Washington and his son removed the antenna from the pipe and attempted to move it under the power line toward the house. Although the antenna could be carried by two persons with its pole or mast parallel to the ground, the four rod-like elements that radiated in as many directions from the base of the antenna made it difficult to get under the power line without making contact. Each element was eight feet long so that when two elements rested on the surface the other two extended at 45 degree angles to a height of some eleven feet in the air; and, of course, one of the elements would extend even higher when the antenna was picked up or rotated. Mr. Washington’s son testified that as they were attempting to “tip” the antenna and get it under the power line the uppermost element made contact with the hot wire. The resulting shock knocked the decedent’s son to the ground and burned him' slightly on the hand; it also burned large blisters on Mr. Washington’s hand. The son testified that, after the accident, his father said “That could have killed me.”

The electrical accident resulted in a blackout in the neighborhood. LP & L investigators determined that Mr. Washington and his son had caused the power failure by touching the power line with the antenna. They discussed the matter with Mr. Washington in his backyard before leaving and reenergizing the line.

After his close call Mr. Washington was very cautious with the antenna and did not attempt to move it under the power line or even carry it away from the back property line. His children and Mr. Morton testified that several times after the accident, the decedent requested that LP & L insulate the line or move it underground, indicating his continued awareness of the danger. LP & L responded that it could do so only at Mr. Washington’s expense. At trial LP & L presented evidence that a Public Service Commission order stated that utility companies should charge a customer for the cost of burying his line underground, rather than passing on the cost of that benefit to all customers.

In January, 1985 Mr. Washington, with the help of his friend, Mr. Morton, lowered the antenna and removed it from the pipe. Mr. Morton testified that the decedent had planned to work on the antenna when some parts he had ordered arrived. Mr. Morton said that they set the antenna down near the property line and were careful not to move it in the direction of the power line because they knew it and the other lines around it were dangerous.

On January 27, 1985, one week after Mr. Washington and Mr. Morton lowered the antenna, residents in the neighborhood reported an electricity blackout at 1:30 p.m. Ronnie Bushnell, an LP & L service lineman, drove slowly through the subdivision visually checking the line. Although he and a helper searched in this manner for 30 to 45 minutes, they were unable to find the source of the power failure. They re-energized the power line and left the area at 2:28 p.m.

*1353About 4:30 p.m. on the same day a friend of Mr. Washington discovered him lying in his backyard. An emergency medical technician testified that when he arrived rigor mortis had set in. The decedent’s body was located next to his CB antenna, with the mast of the antenna sticking straight up in the air. The tip of the antenna was within a foot of the uninsulated 8000 volt power line. Decedent’s body was located horizonally six to eight feet from the line lying on top of an element and one or two feet from the base of the antenna. The pathologist who performed the autopsy on the decedent’s body determined that electrocution was the cause of death, and that the decedent did not immediately die, but that he had continued to breathe for anywhere from one or two minutes to one or two hours after having received the shock.

After a trial on the merits, a jury found LP & L at fault in the accident and awarded plaintiffs $500,000 for pain and suffering and the loss of life of the decedent and $75,000 for each plaintiff’s loss of love, affection and support. LP & L appealed suspensively. The Court of Appeal, noting that the decedent had five years earlier received an electrical shock when he touched the antenna to the same line, and had since that time been extremely careful to never move the antenna alone or towards the line until the day of the fatal accident, reversed, concluding that LP & L did not breach any duty owed to the decedent. Washington v. LP & L, 532 So.2d 798 (La.App. 4th Cir.1988). This court granted certiorari. 545 So.2d 1043 (La.1989).

When the evidence is clear, as in the present case, that the power company either knew or should have known of the possibility of an accident that materialized in the decedent’s electrocution, the remaining negligence issue is whether the possibility of such injury or loss constituted an unreasonable risk of harm. See Levi v. SLEMCO, 542 So.2d 1081 (La.1989). Such a case invites “a sharp focus upon the essential balancing process that lies at the heart of negligence.” Malone, Work of Appellate Courts, 29 La.L.Rev. 212, 212 (1969); see also Allien v. LP & L, 202 So.2d 704 (La.App. 3d Cir.1967). In this regard, we recently held that the power company’s duty to provide against resulting injuries, as in similar situations, is a function of three variables: (1) the possibility that the electricity will escape; (2) the gravity of the resulting injury, if it does; (3) the burden of taking adequate precautions that would avert the accident. When the product of the possibility of escape multiplied times the gravity of the harm, if it happens, exceeds the burden of precautions, the risk is unreasonable and the failure to take those precautions is negligence. Levi v. SLEMCO, supra; see L. Hand, J., in Conway v. O’Brien, 111 F.2d 611, 612 (2nd Cir.1940), rev.’d 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941) and United States v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir.1947); see also Allien v. LP & L Co., supra.

Applying the negligence balancing process, we conclude that although there was a cognizable risk that the antenna stationed in the corner of Mr. Washington’s backyard could be lowered and moved to within a dangerous proximity of the power line, that possibility could not be characterized as an unreasonable risk and the power company’s failure to take additional precautions against it was not negligence.

Under the circumstances, there was not a significant possibility before the accident that Mr. Washington or anyone acting for him would detach the antenna and attempt to carry it under or dangerously near the power line. Standing alone, Mr. Washington’s 1980 accident might have caused an objective observer to increase his estimate of the chances that this particular antenna might be handled carelessly. The other surrounding circumstances, however, overwhelmingly erase any pre-accident enlargement of the risk at that site. Except for the single occasion of the 1980 accident, the antenna was stationed safely in the corner of the backyard for many years, one to three years before the 1980 mishap and five years afterwards. Most of that time it was maintained safely in the pipe receptacle which, by Mr. Washington’s design, al*1354lowed it to be lowered only in a safe direction. Between his close call in 1980 and his fatal accident in 1985, Mr. Washington had never been known to handle the antenna carelessly. Indeed, after he and his son narrowly escaped death or serious injury in 1980, his remarks to friends -and relatives indicated that the experience had convinced him to keep the antenna far away from the power line. That he continued to be aware of the danger and take exemplary precautions to avoid it until his fatal accident was further illustrated by the care that he and his friend took when they lowered and laid it next to the fence several days before the accident.

The likelihood that the antenna in this case would be brought into contact with the power line was not as great as the chances of an electrical accident in situations creating significant potential for injuries to victims who may contact or come into dangerous proximity with the power-line due to their unawareness of or inadvertence to the charged wire. See, for example, Levi, supra; Meche v. Gulf States, 436 So.2d 538 (La.1983); Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983); Casanova v. Ballard, 533 So.2d 1005 (La.App. 1st Cir.1988), writ denied, 537 So.2d 1163 (La.1989). See also Harper, James & Gray, The Law of Torts § 16.9, n. 8, comparing Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983) with Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982).

Prior to the accident, the anticipated gravity of the loss if the risk were to take effect was, of course, of a very high degree. The deaths and serious injuries in this and other electrical accidents verify that the weight of the loss threatened by a power line accident is not trivial. While some accidents, such as Mr. Washington’s 1980 mishap, do not lead to dire consequences, a consideration of all losses re-suiting from this type of risk indicates that the gravity of the loss if it occurs is usually extreme.

Yet when this high degree of gravity of loss is multiplied by the very small possibility of the accident occuring in this case, we think it is clear that the product does not outweigh the burdens or costs of the precautions of relocating or insulating the power line. This does not mean, of course, that it would not have been worth what it would have cost to place the line underground or to insulate it in order to save the decedent’s life if it had been known that the accident would happen or even if the chance of it occurring had been greater. Nor does it mean, on the other hand, that we stop with a consideration of only the burden of an effective precaution in this single case. Common knowledge indicates that within any power company’s territory there probably are a great number of situations involving antennas that have been safely installed, but which conceivably could be detached and carelessly moved about dangerously near a power line. In fairness, in this case, in which the coexistence of the powerline and the safely installed antenna was no riskier than countless other similar coexistences not considered to involve negligence, the burden to the company of taking .precautions against all such slight possibilities of harm should be balanced against the total magnitude of all these risks, including the relatively few losses resulting from the total of all those insignificant risks. Just as single case applications of the Hand formula can understate the benefits of accident prevention by overlooking all other accidents that could be avoided by the same safety expenditures, See Rodgers, Negligence Reconsidered: The Role of Rationality in Tort Theory, 54 So.Cal.L.Rev. 1, 8 (1980), the burdens of taking precautions in all similar cases may be depreciated by single case consideration here.1

*1355The foregoing, of course, is merely a shorthand expression of the mental processes involved in such considerations. We cannot mathematically or mechanically quantify, multiply or weigh risks, losses and burdens of precautions. As many scholars have noted, the formula is primarily helpful in keeping in mind the relationship of the factors involved and in centering attention upon which of them may be determinative in any given situation. See D. Robertson, W. Powers, Jr. & D. Anderson, Cases and Materials on Torts, p. 85 (1989); Harper, James, & Gray, The Law of Torts § 16.9 (1986); Fleming, Is There a Future for Tort? 44 La.L.Rev. 1193, 1200 (1984); Epstein, A Theory of Strict Liability 2 The Jour, of Legal Studies 151, 157 (1973).2 Nevertheless, the formula would seem to be of greater assistance in eases of the present type, in which the power company’s ability to perceive risks is superior and its duty is utmost, See Levi, supra, at 1085-86, than other notions, such as “reasonable man”, “duty” or “foreseeability”, for example, which must be little more than labels to be applied after some sort of balancing or weighing that the formula attempts to describe. In the present case, the balancing process focuses our attention on the fact that the possibility of an accident appeared to be slight beforehand and on the reality that precautions against such slight risks would be costly and burdensome because they exist in great number and have not usually been considered unreasonable or intolerable.

Plaintiffs also assign as error the Court of Appeal’s rejection of their argument that the LP & L serviceman who answered the power outage complaint was guilty of negligence in not discovering that Mr. Washington had collapsed in his back yard and that this negligence was a cause in fact and legal cause of Mr. Washington’s death. We have carefully reviewed the evidence and the parties’ oral and written arguments regarding this issue. We conclude that the Court of Appeal’s disposition is correct for the reasons stated in its opinion. See 532 So.2d at 802.

For the reasons assigned, the judgment of the court of appeal is affirmed.

AFFIRMED.

LEMMON, J., concurs.

DIXON, C.J., and WATSON, J., dissent.

*36ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Cook County based upon a jury verdict against defendant, Peabody Coal Company, assessing damages to plaintiff in the sum of $200,000. The jury had also answered a special interrogatory finding that Earl Edward Hendricks, plaintiff, was not guilty of negligence which proximately contributed to his injuries. As the case comes before us, the question of contributory negligence is not involved in this appeal. The only issue presented is whether plaintiff made out a case sufficient to raise a jury question, or alternatively stated, whether defendant should have foreseen harm to children such as plaintiff from the nature and use being made of defendant’s premises.

The record discloses that on June 19, 1960, plaintiff, who was then 16 years and 5% months of age, was injured when he dove into a strip mine area that was filled with water, as a result of which he apparently broke his neck when his head hit the sand bottom. As a result of such injury, plaintiff is a quadriplegic and his disability is permanent. No questions of any trial errors are raised in this cause and our sole inquiry is to determine whether, under the facts before us, defendant owed a duty to plaintiff, and whether the determination of this cause was properly made an issue of fact for the jury.

It is noted that for some years prior to 1955, Peabody Coal Company was engaged in strip-mining operations in an area near Essex, Illinois, a small community of about 75 to 100 people. The body of water which was involved was in a pit in one of the abandoned strip mines located approximately 30 miles west of the city of Kankakee. The record discloses that the water-filled quarry was known throughout the city of Kankakee and vicinity, and that many people swam there and had heard about it from other persons who swam in the location. People came from as far away as Chicago, Joliet, Kankakee, *37Braidwood and South Wilmington. Defendant had excavated 70 to 75 feet deep to extract all coal from the area. After the defendant had ceased its mining operations in the area in 1955, and within six months thereafter, the aperture filled with water from natural springs, rain water and snowfall, which resulted in clean, clear water and made it an excellent swimming place. The water was 35 to 50 feet deep in places. By reason of the contour of the mine, as soon as one moved a couple of feet from the shoreline, he was in deep water. It differed from a natural lake in that there was a sharp drop-off. The north and east sides of the water hole were sand. It was about half a mile long and 300 feet in width at its widest point. A sand shelf extended in varying widths from a foot to three feet along the water edges.

There was no indication by signs that the pit, which was being used for recreational purposes, was owned or maintained by anyone, but, rather, that it was just wasteland or “a swimming hole.” It was also used by motor boats, water skiers, fishermen, and picnickers. It had been frequented for long periods of time by teenagers, young adults and families who would bring infants. The water-filled quarry ran generally north and south. A two-lane paved road leading from Essex, Illinois, ran parallel to the quarry. The county gravel road ran in a westerly direction which passed a private club. From this gravel road there was a dirt road running southerly to the north side of the water. It was customary for motorists to drive up and park on the north side of the body of water, almost at the edge of the pit itself.

The particular day in question, June 19, 1960, was a Sunday. Four carloads with 13 teenagers left a home in Kankakee. When the young people arrived at the north end it was too crowded to swim there, so they went to the east end of the water. A few of the boys started to dive from a three-to-four-foot bluff into the water. When *38plaintiff arrived at the scene, three of his companions were diving into the water from a bluff on the east side of the north end. On this day, as on previous occasions when plaintiff had been there (this was his fifth trip there), one swimmer after another made his dive, then came to the plateau shelf and climbed up it. The sand on the shelf was stirred up and visibility made it impossible to see the location of the shelf or the bottom under the water. There was evidence that the use of the water and action of swimmers would stir the sand and make it shift. The evidence indicated that plaintiff went into the water only after seeing the other boys dive at the place several times. Each of them dove from the same spot out over the same area that plaintiff did. The evidence indicated that plaintiff was as capable in diving as the other boys. Plaintiff, however, had not yet dived at the particular place on this day. He followed one of his companions and another was waiting to follow him. From where plaintiff dove he could not see the sand and when he dove he did not know the condition of the sand in the bottom. Plaintiff ran and dived. He did not slip prior to his dive and the next thing plaintiff could remember he was laying on the bank. Other witnesses indicated that he had struck the sand at the bottom. One of his companions found him with his head partially imbedded in the sand and, with the help of others, pulled him out of the water.

From 1955 to 1960, the only policing of the area was done by defendant’s employees on a part-time basis. It was only a part-time activity, and all the employees did, when they found people there, was to take down one or two of the license numbers but nothing further was done about it. It was not until after the injury to plaintiff that defendant allowed police to come onto the premises and, thereafter, signs were also put up in the quarry. There was strong evidence that there were no signs prohibiting *39trespassers or warning of any danger prior to the time of the occurrence resulting in injury to plaintiff. There were also no fences or barricades of any kind anywhere nor were there any lifeguards or life preservers.

Evidence was introduced at the trial of this cause disclosing that the cost of a six-foot high steel chain link fence with steel posts set in concrete surrounding the entire pit would have cost $12,000 to $14,000, and that this would have effectively barred persons from using the premises.

It is asserted by plaintiff in this cause that as the case is now presented to this Court, the admitted facts are that (1) defendant created the condition, having excavated a deep hole out of the earth; (2) defendant abandoned the area in 1955; (3) within six months thereafter, it was filled with water thirty-five to forty-five feet deep, water which was clear and clean which defendant knew made an excellent swimming place; (4) this body of water was different from a natural lake in that there is a sharp drop-off a couple of feet from the shore, with the water following the contour of the mine; (5) when swimmers were in the water, the sand would shift from their activity in contact with it and this changed the location of the sand; (6) for a period of years, defendant knew this place was frequented by swimmers, divers, picnickers, boaters, water skiers, and fishermen; (7) defendant knew of the configuration of the pit with the shelf to the drop-off lurking just below the water surface, and that there would be large numbers of people in the place for recreation of varying ages, from adults and teenagers to infants; (8) with this knowledge, defendant undertook to police the area in an inadequate manner and not until 1961, after the accident, allowed the Essex Police Department to take over; (9) the area was not fenced, although this could have been done for a very reasonable sum; (10) defendant did not *40post the area so that even adults did not know it was another’s property, but described it as wasteland or a swimming hole; (11) plaintiff, as good a diver as his companions, on this particular day did a running dive, as his companions had been doing, and did not fall but went into the water, where he was found; and (12) what plaintiff struck was not known, since he seemed to go out normally on the dive and was found unconscious. These assertions made by the plaintiff are, in fact, supported by evidence in the record, although there was some dispute as to certain facts involved.

Defendant contends that plaintiff failed to show that defendant violated any duty owed to him and specifically failed to show under the precedent of Kahn v. James Burton Co., 5 I112d 614, 625, 126 NE2d 836, that defendant owed plaintiff a duty. It is stated in this connection that the theory of “attractive nuisance” to remove a minor from the status of a trespasser no longer appears to be the law in Illinois (Kahn v. James Burton Co., supra). Both parties to this cause agree that the test is foreseeability of injury as enunciated in Kahn v. James Burton Co., supra, rather than a vaguely announced doctrine of “attractive nuisance.” The fundamental question is whether the evidence establishes a sufficient basis upon which a jury could determine that defendant was guilty of negligence toward plaintiff.

As stated in Bunions v. Liberty Nat. Bank, 15 Ill App 2d 538, 147 NE2d 380 (at 504):

“Plaintiff relies upon Kahn v. James Burton Co., 5 Ill2d 614 (1955). That case marks a departure from the traditional standards developed by the law in cases in which children are attracted to and trespass upon premises and are injured as a result thereof. All cases of this character must now be examined in the light of the Kahn case. Prior authorities must yield to the principles therein set forth. Previously, *41such cases had been set apart in the category known as ‘attractive nuisance’ cases. The Supreme Court in the Kahn case deplored this inclination to find a ‘stare decisis pigeonhole or category’ because such procedure led to irreconcilable conclusions. The court cited instances of confusion in decisions. It laid down certain general principles governing cases such as the one before us, and we have carefully examined that opinion to determine whether the amended complaint here states a case within those principles.”

In the Kahn case, it was noted that some of the conflicting decisions had stated that water itself could not be an attractive nuisance, but that there must be other objects present, although it was the water that caused the drowning. The court concluded that these meaningless differences were best resolved by treating such situations according to the “customary rules of ordinary negligence cases.” After analyzing this situation, the court stated, in the Kahn case (at page 624) :

“In view of the foregoing conflict and the fact that, as many courts have declared, a child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything, the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.”

The true basis of liability which the Kahn case underscored was the foreseeability of harm to the child. As the court stated (at page 625):

“The element of attraction is significant only insofar as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

*42In Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684, a boy 16 years and 2 months of age dove into defendant’s fenced, artificial pond on his farm, struck a submerged stump, and was paralyzed. Defendant contended that plaintiff hit the pond bottom. The plaintiff had heard about the pond from others and the pond had been used by the public for many years, frequently without defendant’s permission for swimming, outings and picnics. The trial court had directed a verdict on a negligence count for the defendant and the jury found for defendant on a willful and wanton count. The Appellate Court reversed and remanded for new trial on both counts and considered that the case presented questions, first, as to defendant’s foreseeability of harm to children, and, secondly, on the question of the minor’s care. The court stated in that case (at page 259):

“Giving the principles of the Kahn case their full import, and applying them to the facts in the instant case, the conclusion seems irresistible that the issues as to whether the pond and premises were sufficiently attractive to entice the plaintiff as to entering them, whether the condition of the pond and premises were such as to create an unreasonable danger to children frequenting them, whether the defendant should reasonably have foreseen harm to children from the condition of his pond and premises, and whether the plaintiff was guilty of contributory negligence, were questions for the jury under the circumstances shown in the record. We find further support for this conclusion in the following decisions handed down since the Kahn case was decided: Haloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98; Wilinski v. Belmont Builders, Inc. (1957), 14 Ill App2d 100, 143 NE2d 69; Kleren v. Bowman (1957), 15 Ill App2d 148, 145 NE2d 810; Runions v. Liberty Nat. Bank (1957), 15 Ill App2d *43538, 147 NE2d 380; Melford v. Gaus & Brown Const. Co., Inc. (1958), 17 Ill App2d 497, 151 NE2d 128.”

The court further stated, at page 260:

.“With regard to the age of the plaintiff, it is our conclusion that the fact that he was 16 years and 2 months old at the time of the occurrence does not prevent the principles of the Kahn case from applying. While the plaintiff was 16 years of age, he had just completed his freshman year of high school. Moreover, the question of contributory negligence, as hereinabove noted, is preeminently a question for the jury to determine in the light of the plaintiff’s capacity, intelligence, and experience.”

Age alone has not been the conclusive factor and, as stated in the Restatement of the Law of Torts, 2d edition, § 339, Comment c:

“The great majority of the courts have rejected any such fixed age limit, and have held that there is no definite age beyond which the rule here stated does not apply.”

Normally, under the Blinois law, the degree of care of a minor under the age of 21 is a question of fact to be determined by the jury in view of the minor’s age, mental capacity and experience (Wolf v. Budzyn, 305 Ill App 603, 27 NE2d 571). This particular rule is codified in IPI 10.05, which instruction was given in this case and as to which defendant has not raised any question on this appeal.

Both parties have cited § 339 of the Restatement of the Law of Torts, 2d edition, as supporting the position of both appellant and appellee in this case. In such section it is stated that a possessor of land is subject to liability for physical harm to children trespassing there*44on caused by an artificial condition upon the land under certain situations. Under subsection (a) it is stated:

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.”

In the case before us, the place was described as an excellent swimming place. Defendant had actual knowledge that it was used for this purpose and for recreation.

In subsection (b) of § 339 of the Restatement, it is stated:

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children.”

In the case before us, the children used the place not only for diving, picnicking and swimming, but for water skiing and fishing. Because of the nature of the swimming place with its quick drop-off approximately two feet from the shoreline, it involved far greater risk of death or serious bodily injury than if it was an ordinary lake with its gradual inclination. The jury could well have determined that the defendant could have foreseen the happening of the occurrence, in this case.

In subsection (c) of § 339 of the Restatement, it is stated:

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.”

In the case before us, the boys with whom plaintiff swam and dived, and whose ability in swimming and diving was equal to the plaintiff’s, had been diving in the *45same place for one-half hour to 45 minutes prior to the injury, without any injury to themselves, which was observed by plaintiff on this and on other occasions. It was also noted in the record that the sand would be disturbed and that there would be a change in position of the sand which would not be visible to someone above the surface of the water. There was nothing unusual in plaintiff’s dive in this case.

In subsection (d) of § 339 of the Restatement, it is stated:

“ (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved.”

The particular location had been abandoned and had not been used since 1955. It had no future use or value according to the record in this cause. The entire body of water could have been closed off with a steel fence for between $12,000 and $14,000. This cost was slight compared to the risk to the children involved (Dallas v. Granite City Steel Co., 64 Ill App2d 409, 419, 211 NE2d 907). What could constitute a slight burden would necessarily depend upon the facts of each case and likewise upon the economic capacity of the defendant. Defendant in the case before us could have barricaded the road to prohibit entry. What could or should be done in particular cases, such as with isolated farm ponds, would obviously depend upon the facts in each case.

In subsection (e) of § 339 of the Restatement, it is stated:

“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

*46The record shows there were no safeguards for the protection of the children in that the area was not fenced and was not posted with any signs; that defendant undertook to police the area but did not do so effectively; and, that there were no lifeguards or other means of preventing injury or drownings on the premises.

The test of foreseeability was also the basis for determination in Driscoll v. C. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483, which was cited by defendant in support of its position. In that case (at page 78), the court stated:

“Defendant could hardly have foreseen that cans might be opened, the contents splashed on clothing and the clothing later ignited by fire obtained at other places. Such is not the natural and probable consequence of maintaining a trash pile.” .

In the case before us, defendant knew of the water pit and its nature and knew of the shelf and the drop-off below the surface of the water. Defendant also knew that the place was used by many persons for swimming and diving.

In the case before us, on the basis of the record, we do not believe we would be justified in stating as a matter of law that the record did not authorize submission of this cause to the jury. Had a jury determined that plaintiff was not entitled to recover, this determination would have been equally binding upon plaintiff. Since, on the basis of the record, this became a jury question, its determination by the jury should not be disturbed by this court on review. The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

STOUDER, J., concurs.

*47DISSENTING OPINION

RYAN, J.

I cannot concur in the opinion of the majority of this court.

Within the tests prescribed by section 339 of the Restatement of the Law of Torts 2d and those announced by our Supreme Court in Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, the defendant did not owe the plaintiff the special duty created by section 339 and the Kahn case in favor of trespassing children. The special duty therein announced is to exercise reasonable care to eliminate the danger or otherwise protect children. (Section 339 (e).) Once the special duty has been created, whether or not the defendant has exercised the reasonable care required thereby is a question of fact for the jury to determine. However, the existence of the duty is not a question of fact but is a question of law and it must be determined only by the court. Prosser on Torts, 3rd edition, 207; Restatement of the Law of Torts, 2d edition, § 328B.

The plaintiff has contended and the majority opinion has adopted the contention that the sole test of liability is the foreseeability by the defendant of harm to children. With this I cannot agree. The majority opinion quotes from page 625 of the Kahn case to the effect that the true basis of liability is the foreseeability of harm to the children. This statement has been lifted from the context of the rest of the paragraph and thus has been given an entirely different meaning. The portion of the paragraph preceding this statement in the Kahn case states the general rules that the land owner is under no duty to keep his premises in any particular condition to promote the safety of the trespasser. That infants have no greater rights to go upon the lands of others than adults and that their minority of itself imposes no duty upon the oc*48cupier of land to expect them or prepare for their safety. The paragraph then sets forth an exception to the general rules as follows:

“It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Citation.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.” (Emphasis added.)

Thus, it is not in all cases of injury to trespassing children that foreseeability of harm is the test of liability. Foreseeability is the test only when the exception to the general rule is brought into existence by the presence of the situations enumerated in the paragraph above quoted: (1) owner knows or should know young children frequent the vicinity of the dangerous agency and, (2) the agency is one the owner knows or should know is likely to cause injury to the children, and (3) the children because of their immaturity are incapable of appreciating the risk involved, and (4) the expense or inconvenience of remedying the condition is slight compared to the risk to the children. The paragraph then states:

*49 “In such cases there is a duty upon the owner . . . to use due care . . . .” (Emphasis added.)

Thus only in such cases where the special duty to trespassing children has been created by the existence of the factors enumerated in the paragraph under consideration is the duty to use due care imposed upon the landowner. Once this duty to use due care is created then and only then is foreseeability the test of liability. Foreseeability is the test to be applied in determining negligence and negligent conduct does not impose liability upon a landowner for injury to trespassing children unless the special duty to use due care has been created by the existence of the circumstances enumerated.

Section 339 of the Restatement of the Law of Torts, 2d edition, states the same exception to the general rule as is announced in the Kahn case as follows:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“ (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

*50“ (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

The conditions set out in subsections (a), (b), (c) and (d) correspond with those conditions enumerated in Kahn necessary to create the special duty to trespassing children.

As I have above stated the question of whether a defendant owes a duty to a plaintiff under an established set of facts is not a question of fact but is a question of law to be determined by the court. However, evidence must be presented to establish the facts which, in turn, create a duty. When this evidence is capable of having different inferences drawn therefrom or when the evidence concerning the facts relating to the duty is conflicting, then the question of the existence of the facts which create the duty is a question of fact to be determined by the jury under proper instructions of the court relating to the duty. If however there is no question as to the existence or nonexistence of the facts which create the duty or if the evidence concerning the same is so overwhelming as to compel acceptance of a fact as proved by a reasonable man, then there is no question concerning duty to be submitted to the jury. See Restatement of the Law of Torts, 2d edition, section 328B, comment on clauses (a) and (b).

In light of this, we must examine the evidence as the same relates to the circumstances which are enumerated in subsections (a), (b), (c) and (d) of said section 339 and the counterparts of these subsections as the same are set out in the Kahn case. In doing so we are not trying to ascertain the foreseeability of harm to the child. We are rather trying to determine the existence of circumstances stated in subsections (a), (b), (c) and (d) of said section 339 which if present would create the duty of the defendant set out in subsection (e) of said section *51339, i. e., duty to use reasonable care to eliminate the danger or otherwise protect the children. If the evidence in relation thereto is not susceptible to different inferences or is not conflicting then the jury has no role to play in determining the question of duty.

I am basing my dissent in this case primarily on subsection (c) of section 339 of the Restatement which is fully set out above. We are not dealing here with an infant of tender years who inadvertently fell into a pit filled with water or who inadvertently fell from a bank overlooking the same. We are dealing with a plaintiff who is 16 years, 5^4 months of age, who knowingly dived into the pit. The question presented under subsection (c) of said section 339 is whether this plaintiff because of his youth did not discover the condition or realize the risk involved in so doing.

The testimony of the plaintiff himself under cross-examination which is relevant on this point is as follows:

Q. “And at the time that this accident occurred, did you consider yourself to be somewhat of an expert in swimming and diving?”

A. “I was good.”

Q. “Not only from that day but the other four times that you had been there you were aware that the bottom went out from the shoreline approximately two and a half to three feet and then there was a sheer drop-off, weren’t you?”

A. “Yes.”

Q. “And you didn’t know how deep it was because you had never gotten to the bottom after this drop-off, isn’t that true?”

A. “Yes.”

Q. “And on the date that you dove and just before you dove, you had been wading in this area and you were aware that two and a half, three feet out there was a sheer drop-off, weren’t you?”

*52A. “Yes.”

Q. “When you waded out before you dove, you could only wade out about three feet and then there was a drop-off and you would have to swim, right?”

A. “Yes.”

Q. “The point at which you arrived at the drop-off —strike that — Let me ask you this question. The shoreline as it extended out for this two and a half or three feet was similar to any other shoreline, wasn’t it, by that I mean you would have a very small amount of water and gradually get a little bit deeper as the bank sloped down, is that correct?”

A. “Yes.”

Q. “And about the deepest that it got before the drop-off was how deep ?”

A. “About three feet.”

Q. “And then at the point where the drop-off starts it was abrupt or sheer, isn’t that right?”

A. “Yes.”

Q. “You had either this day or on previous occasions when you were there explored it to see how deep the water was after you came to this drop-off, hadn’t you?”

A. “Yes.”

Q. “And then when you got to the point that has been marked on there you made this running dive into the water, right?”

A. “Yes.”

Q. “The time that you did that you knew there was a shelf that extended some two and a half, three feet out into the water, didn’t you?”

A. “Yes.”

Q. “And you knew that in order to safely dive you would necessarily have to dive over that shelf into the deeper water, isn’t that so ?”

A. “Yes.”

*53Q. “In fact, that was your intention to dive out far enough so that you would miss the bottom or the shelf that was there and dive into the deep water, right?”

A. “Yes.”

Q. “When you dove you hit, you dove short and hit the bottom, isn’t that what happened?”

A. “Yes.”

This testimony of the plaintiff indicates not only that he had discovered the condition which gave rise to his injury, but that he was well aware of the existence of the same and that he realized the risk involved, knowing that he had to dive over the ledge in order to safely complete his dive. By virtue of this knowledge the circumstances described in subsection (c) of said section 339 of the Restatement do not exist. There exists no question of fact concerning these circumstances for the jury to determine. As a matter of law, in the absence of the conditions enumerated in subsection (c), the duty to use reasonable care for the protection of the plaintiff did not exist. It is stated in Prosser on Torts, 3rd edition, page 381:

“Since the one basic reason for a rule distinguishing trespassing children from trespassing adults is the inability of the child to protect himself, the courts have been quite firm in their insistence that if the child is fully aware of the condition, understands and appreciates the risk which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding.”

The comment on subsection (c) of section 339 states:

“The purpose of the duty is to protect children from dangers which they do not appreciate and not *54to protect them against harm resulting from their own immature recklessness in the case of known and appreciated danger.”

In Jennings v. Glen Alden Co., 369 Pa 532, 87 A2d 206 (1952) an action was brought against the coal company for the recovery of damages for the death of a 13%-year-old boy who drowned while swimming in an abandoned strip mine. The court, relying on subsection (c) of section 339, denied recovery, stating that the duty of a possessor of land to trespassing children does not extend to those conditions the existence of which are obvious even to children and the risk of which are fully realized by them. The dissent in that case was based on the fact that there was no evidence to show that the boy knew of the risk involved in swimming in the flooded mine.

In O’Keefe v. South End Rowing Club, 64 Cal2d 729, 51 Cal Rptr 534, 414 P2d 830 (1966) the plaintiff, a high school boy, was injured when he dived from a pier and struck his head on the bottom. The court relying on subsection (c) of section 339 denied recovery because the plaintiff had actual knowledge and appreciated the danger involved. The court quoted that portion of Prosser on Torts quoted above.

The majority opinion refers to Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684. The Skaggs case is clearly distinguishable from this case. In Skaggs there was evidence presented that there were submerged stumps in the pond and that the plaintiff, when he dived, struck his head on one of these stumps. The dangerous condition which brought about the plaintiff’s injury within the meaning of section 339 was not the pond but the pond with submerged stumps in it. There was no evidence to indicate that the plaintiff had any knowledge of the existence of the submerged stumps. Thus, the conditions of subsection (e) of section 339 were clearly present in the *55Skaggs case, whereas in our case they have been eliminated by the testimony of the plaintiff himself.

The fact that the jury in response to a special interrogatory found that the plaintiff was not guilty of negligence which proximately contributed to his injuries is not controlling on the issue of duty owed by the landowner. The question of the child’s contributory negligence is a separate problem from that of the landowner’s duty. While it is proper to hold that the question of contributory negligence is a jury question (see Skaggs case, supra), the question of whether the facts disclose a duty owed to the plaintiff by the defendant is, in the first instance, a question of law for the courts. O’Keefe v. South End Rowing Club, supra, at page 843; Jennings v. Glen Alden Co., supra, at page 209.

I also cannot agree with that part of the majority opinion which indicates that the defendant should have erected a steel chain link fence 6 feet high, supported by steel posts set in concrete at a cost of from $12,000 to $14,000. The duty is not to prevent the trespass but under the conditions enumerated in section 339 to use reasonable care for the protection of known trespassing children. I am of the opinion that it is a nearly impossible task to erect a boy-proof fence against the ingenuity of a group of teenage boys bent upon having a swim. They were willing to drive a distance of 30 miles to get to this swimming hole. It is doubtful if their ambitions to indulge in this sport could have been deterred by a 6-foot fence. Once they had breached the barrier, they would again be trespassers, and if their presence were known or should have been known to the defendant, the same duty would thereby be placed on the defendant under the conditions of section 339 as would apply if the fence were not there. Again, we must remember that we are not dealing with three, four, or five-year old children who have inadvertently wandered upon the premises. We are dealing with *56sixteen-year-old boys who drove 30 miles for the express purpose of swimming on this property.

The expenditure of $12,000 to $14,000 for the erection of such a fence may be considered an insignificant expenditure when we are talking about the total assets of the defendant Peabody Coal Company. However, the law as announced by the majority opinion is not limited in its application to the Peabody Coal Company alone nor to only the large and wealthy corporations. It applies with equal force to individual owners of every farm pond in this state. I regret the implication of the majority opinion that the owners of these farm ponds must erect a 6-foot steel chain link fence supported by steel posts set in concrete to satisfy any duty they may owe to trespassing children.

The plaintiff has cited Dallas v. Granite City Steel Co., 64 Ill App2d 409, 211 NE2d 907, as holding that a required expenditure of $55,000 is not to be considered an excessive burden on the defendant. This case has been cited in the majority opinion. The Dallas case did not hold as the plaintiffs contend. In that case the estimate of the cost to raze all of the old houses was $55,000. The evidence relating to the cost of razing the building and leveling the lot where the plaintiff and other children played ranged from $80 to $200. This is the expenditure which was held insignificant as compared to the risk involved to the children.

I do not think in the case now under consideration that we can say that the expenditure of from $12,000 to $14,-000 is a slight burden within the meaning of subsection (d) of section 339. I likewise do not believe that we can say that such an expenditure is “slight compared to the risk to the children” as stated in the Kahn case.

For the above reasons I respectfully dissent from the opinion of my colleagues.

Snow, J.

The plaintiff concedes that the infancy of a person is of material importance in determining whether he has been guilty of contributory negligence, but conténds that a minor charged with actionable negligence is to be held to the standard of care of an adult without regard to his nonage and want of experience. While the issue thus presented has been mooted in discussion by writers, there is a dearth of judicial authority directly in point.

The two leading cases dealing with the specific question are Neal v. Gillett, 23 Conn. 437, 442 and Briese v. Maechtle, 146 Wis. 89, 91. In the former the defendants, thirteen and sixteen years of age, playing ball by the roadside, were charged with negligently passing a ball so close to the head of the plaintiff’s horse as to produce fright and cause the injury. Exception was taken by the defendants to a refusal to charge that the jury were at liberty to take into consideration their age in connection with the other circumstances of the case, and “that the law would not require the same acts of caution, and prudence in a child, as in a man”; and also to the instruction given, namely, that “the age of the defendants was not to tó.taken into account by the jury,” in determining the- question of negligence “as they were only to allow in any event actual damages, this being all the plaintiff claimed.” It was there contended by the plaintiff’s counsel (1) that a child indapable of exercising intelligent volition was liable for actual damages committed by him, (2) that cases in which extreme youth had been held to excuse a child from exercising ordinary care were exclusively cases where the child had been plaintiff and (3) that children of the age of the defendants were bound to exercise the same care as adults. The opinion reads, “a majority of the court are of opinion that the charge was right; though we do not intend to decide whether the distinction taken by the plaintiff’s counsel in regard to the protection which infancy, or ‘non-age’, affords, when claimed by a plaintiff, and when set up by a defendant, is well taken or not, and only remark, that we have been referred to no authority, which directly sanctions such distinction. We place our determination upon a different ground.” An obiter dictum to iikp. effect is to be found in Roberts v. Ring, 143 Minn. 151, 153 where, after stating the rule that, in considering the contributory negligence *503of a seven year old boy plaintiff, the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity, the court remarked, “It would be different if he had caused injury to another. In such a case he could not take advantage of his age or infirmities.”

Briese v. Maechtle, supra, was an action in behalf of a boy of nine years of age charging a defendant of ten years with negligent injury inflicted in a collision while playing games with their schoolmates— the plaintiff at marbles and the defendant at tag. The court there said “Infants may be guilty of actionable negligence, and even though the defendant was engaged in a perfectly lawful occupation he may have conducted himself so negligently as to make himself liable for damages resulting from such negligence. Here, however, comes in the marked difference between the tests of negligence as applied to the act of an adult and the same act when committed by a child. The rule is that a child is only required to exercise that degree of care which the great mass of children of the same age ordinarily exercise under the same circumstances, taking into account the experience, capacity, and understanding of the child . . . This was the measure of the defendant’s duty — no greater and no less.” The court, reviewing the facts, considered that no one could say that the defendant was doing anything more or less than healthy boys of his age have done from time immemorial, holding in effect that, inasmuch as the defendant’s conduct complied with the prescribed standard, there could be no recovery. The case appears to be directly in point for the defendant here.

Dicta supporting the latter view are to be found in several cases. In Bradley v. Andrews, 51 Vt. 530, 533 (1879), a request for a charge that the jury could not hold the defendant, a lad of thirteen, to the same degree of care that they would a man of full age and strength of mind was said to point to a well-settled legal principle, and that a disregard of the request would have been error had the case required its application. In Gulf &c. Ry. Co. v. McWhirter, 77 Texas 356, it is said, “The general rule is that infants are liable for torts committed by them when intent with which the act is done is not an element on which liability depends; but in determining whether contributory negligence exists the intelligence of the child must be considered, for a child’s care must be measured by its intelligence, whether it be the actor or sufferer.” In Bullock v. Babcock, 3 Wend. 391, 393 (1829), the court held “where infants are the actors, that might probably be considered an unavoidable accident which would not be so consid*504ered where the actors are adults.” In Harvey v. Dunlop, Hill & Denio, (Supp.), 193, 195, it is said that “In order to arrive at a decision upon this question the jury had a right to take into consideration” inter alia “the childhood of the parties.”

A like conflict of views appears among legal scholars and textbook writers. Henry T. Terry, in his article on negligence, 29 Harv. L. Rev. at p. 47, says, “The test of reasonableness is what would be the conduct or judgment of what may be called a standard man in the situation of the person whose conduct is in question . . . Every man, whether he is a standard man or not, is required to act as a standard man would. If by chance he is not such a man, he may . . . make a mistake and act so as to be guilty of legal negligence, though he has used all such care and forethought as he was capable of. In the case of contributory negligence there is an exception to this rule in the case of abnormal persons, such as children and persons of unsound mind. They are not required to act like a standard man, but only to use such judgment as they are capable of. But as to negligence which is not merely contributory, as to negligent wrongs against others, the standard man test applies to their conduct also.”

On the other hand, Professor Bohlen, in his Studies in the Law of Torts, p. 543 (1926) (59 Am. L. Rev. 864), says (p. 568) “there is a dearth of authority as to the liability of infants or insane persons for harm done to others by acts which would have been negligent in adult or normal persons, but there is a plethora of authority in a field closely allied thereto. . . . the reports are full of cases in which infants have been held incapable of contributory negligence . . ; (p. 570). If our law recognizes infants and insane persons as incapable of exercising that care for their own protection which is required of normal persons as a condition to their right to redress for injuries caused by the wrongful acts of others and relieves them from the penalty which such lack of care would, but for their incapacity, impose, it would be inconsistent and arbitrary to penalize them by requiring them to compensate others whom they injure by conduct, which, though guilty in others, is, by reason of their incapacity, innocent in them ... It would, therefore, seem . . . that where a liability, like that for the impairment of the physical condition of another’s body or property, is imposed upon persons capable of fault only if they have been guilty of fault, immaturity of age or mental deficiency, which destroys the capacity for fault, should preclude the possibility of liability, . . . [p. 571] so long as it is accepted as a general principle that liability for injuries to certain interests are to *505be imposed only upon those guilty of fault in causing them, it should be applied consistently and no liability should be imposed upon those for any reason incapable of fault.” In a note, at p. 576, it is further said “While . . . there are but few cases in which the liability of infants to third parties injured by their intentional or negligent acts has arisen, there is an immense mass of authority holding that infants are not to be penalized for conduct which in adults would be contributory negligence. It cannot be said that the tests which have been judicially adopted to determine an infant’s capacity for contributory fault are altogether satisfactory and uniform and the many Anglo-American common law jurisdictions have worked out for themselves tests which in practice have been reasonably satisfactory and which are [as] applicable to determine the capacity of an infant for fault in conduct which has injured another as they are for determining his capacity for fault, which will bar him from recovering for an injury caused by another.”

After discussing the relevancy of evidence of youth in disproof of malice or special intent, Salmond, in his Law of Torts (7th ed. 1928) p. 83, says “it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory negligence of children,” citing inter alia, Lynch v. Nurdin, 1 Q. B. 29 (1841) where the contributory negligence of a child of seven years was the issue, and in which it is said “ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation.”

In 2 Cooley on Torts (3d ed.) 1470, the author says, “But the general rule is that a child is required to exercise the degree of care which children of the same age ordinarily exercise under the same circumstances, taking into account the age, experience, capacity and understanding of the child.”

In 1 Thompson, Neg. s. 36, it is said, “The better and the only consistent doctrine is, that whether a person is plaintiff or defendant in an action, negligence can not be imputed to him if he has not sufficient mental capacity or discretion to understand danger and use the proper means of guarding against it. As we shall see hereafter, when considering the subject of the contributory negligence of children, the rule is that children are required by the law to exercise only such a *506degree of care as Blight, under the particular circumstances, be reasonably expected from a child of the same age, sex, intelligence and judgment as the one receiving the injury.”

The American Law Institute (Am. L. Inst. Restatement Torts, Tent. s. 167) in commenting upon the adopted standard of conduct which it defines as “that of a reasonable man under like circumstances” says (e) “A child of tender years is not required to conform to the standard of behaviour which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behaviour to be expected from a child of like age, intelligence and experience. A child may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a child who has not yet attained his majority may be as capable as an adult of exercising the qualities necessary to the perception of a risk and the realization of its unreasonable character. Between these two extremes there are children whose capacities are infinitely various. The standard of conduct required of such a child is that which it is reasonable to expect of children of like age, intelligence and experience. In so far as concerns the child's capacity to realize existence of a risk, the individual qualities of the child aré taken into account. If the child is of sufficient age, intelligence and experience to realize the harmful potentialities of a given situation, he is required to exercise such prudence in caring for himself and such consideration for the safety of others as is common to children of like age, intelligence and experience.” By way of “Special Note” it is further said “There are so few cases which involve the liability of a child defendant that it has been necessary to state the standard of behaviour required of a child as it is indicated by the analogy of contributory negligence on the part of young children. There may be some doubt as to whether it is correct to regard contributory negligence and negligence as sufficiently analogous to make one a safe basis for statements in regard to the other. It may be that children should not be required to conform to a particular standard in order to relieve an ad-, mittedly negligent defendant from liability to them. It does not necessarily follow that a child should not be required to conform to a higher standard of behaviour where it is necessary for the protection of innocent members of the public. On the whole, however, the contributory negligence cases do not seem to show an undue regard for the inevitable inferiorities of children and therefore it is probably *507safe to accept the standard to which a child must conform to avoid liability for harm caused to innocent outsiders as substantially the same as that to which he must conform to be free from contributory negligence.”

Such are the opposing authorities and divergent views where the question has been directly considered, so far as they have come to our attention. However, as indicated in the foregoing excerpts, a “plethora of authority” is to be found in the analogous field of contributory negligence. The reasons there expressed, or impliedly assigned, for limiting the measure of care required of infants in their own protection would, for the most part, support a like limitation in the case of their actionable fault. It is, however, unnecessary to look to other jurisdictions for such analogous authority.

While the specific question of the application of the rule of reasonable conduct to minors charged with primary negligence has not before arisen in this jurisdiction, in the cases where a child’s contributory fault has been in issue the conclusion of the court that his infancy is a factor to be considered has been expressed in terms which would apply to his primary as well as to his contributory fault. “An infant [aged 8] is bound to use the reason he possesses and exercise the degree of care and caution of which he is capable.” Buch v. Company, 69 N. H. 257, 259. “The fact that the plaintiff was only eleven years of age does not relieve him . . . from the obligation to use such care and prudence as persons of his age and intelligence would naturally be expected to use under the same circumstances.” Bresnehan v. Gove, 71 N. H. 236, 239. “The plaintiff’s intestate, [aged 17] if of less than average intelligence, was bound to use the reason he did possess; and if by the due exercise of his physical and mental powers he could have avoided the injury, this action cannot be maintained.” Boyce v. Johnson, 72 N. H. 41, 43. “The test ... to determine whether the plaintiff [aged 14] was acting within his legal rights . . . was to inquire whether the ordinary boy of his age and experience, and with his knowledge of the situation, and its dangers, would have done what he did; in other words, to inquire whether he was free from fault.” Kambour v. Railroad, 77 N. H. 33, 51. “Neither can it be said that he [the plaintiff aged 16] was guilty of contributory negligence, for negligence as used in this connection is the doing or omitting to do that which the ordinary boy of his age and experience, and with his opportunity to know, and capacity to understand the situation and its dangers, would not have done or omitted.” Dostie v. Cotton Mills, 80 N. H. 87, 88. “The test to de*508cide that issue [plaintiff’s right to recovery] is to inquire whether in a similar situation the ordinary girl of the plaintiff’s age and experience and with her knowledge of the situation and its dangers might have jumped when and as she did.” Silver v. Jones, 81 N. H. 297, 298.

There is nothing in the language of these cases which suggests any distinction between the care required of an infant in his own protection and that exacted of him in his conduct toward others. On the contrary it tends to refute such a distinction. If the law requires a minor for his own protection to “exercise the degree of care and caution of which he is capable” (Buch v. Company, supra), or which he “would naturally be expected to use” (Bresnehan v. Gove, supra), to use “the reason he did possess” (Boyce v. Johnson, supra), to conduct himself “free from fault” (Kambour v. Railroad, supra), to do what one of his age, experience, opportunity and capacity would have done (Dostie v. Cotton Mills, supra; Silver v. Jones, supra), — it is plain that to exact of him a higher standard of care for the protection of others would be to require him to exceed his^bapabilities, to transcend the natural expectation, to possess a reason which he did not have and to do what one of his age, experience, opportunity and capacity would not have done. The law makes no such unreasonable demand. Such a holding would be in the teeth of the expressed attitude of this court in dealing with the infirmities of youth. / McCaffrey v. Company, 80 N. H. 45, 53; Lane v. Manchester Mills, 75 N. H. 102, 105. “A child should no more be held to have had capacity to apprehend a duty which he had not than to have had stature or strength which he did not possess.” 25 Ill. Law Rev. 214 note.

Unless infants are to be denied the environment and association of their elders until they have acquired maturity, there must be a living relationship between them on terms which permit the child to act as a child in his stage of development. As well expect a boy to learn to swim without experience in the water as to expect him to learn to function as an adult without contact with his superiors. For the law to hold children to the exercise of the care of adults “would be to shut its eyes, ostrich-like to the facts of life and to burden unduly thé child’s growth to majority.” 37 Yale L. J. 618. During the period of his development he must participate in human activities on some basis of reason. Reason requires that indulgence be shown him commensurate with his want of development as indicated by his age and experience. Id. 621. Though strictly speaking it is the resultant qualities reasonably attributable to these factors that measure his capacity (1 Shearman & Redfield, Neg. (6th ed.) 72a) it is sufficient, as *509a practical matter, to speak of age and experience as inclusive of these qualities.

It is error, however, to assume that the law requires reasonable care of adults and not of minors, or applies different measures to the primary and contributory faults of the latter. The law of negligence has for its foundation the rule of reasonable conduct. The general rule is more fully stated as reasonable care under all the circumstances of the particular ease. Garland v. Railroad, 76 N. H. 556, 563. This is the true test or measure in all cases. In applying this rule to the conduct of adults recourse is had to a mythical person called the “standard man” with whose conduct that of the actor is to be compared, namely, the average prudent person placed in his position. Byron v. Railroad, 82 N. H. 434, 438, and cases cited. While this standard is external (Garland v. Railroad, supra, 564; Sevigny v. Company, 81 N. H. 311, 312), it must necessarily be applied to the actor in the particular situation disclosed by the evidence. It is for the jury to say whether such standard person put in his place, possessed of the same knowledge and means of knowledge that he had of the surrounding circumstances would or might have done as he did. The knowledge which the actor had, or which he would have had if he had used his faculties, are facts in the light of which he is bound to act as the average prudent person would have acted in his situation. Sevigny v. Company, supra. The jury bring to bear their experience in the affairs of life and their knowledge of the motives that govern human action and of the conduct of reasonable prudent men. Folsom v. Railroad, 68 N. H. 454; Carney v. Railway, 72 N. H. 364, 372. In other words, possessed of a yardstick with which the law presumes them to be familiar, wholly external to the subject to be surveyed, the jury apply it to the conduct of the party in evidence and determine whether it measures up to the standard. Smith v. Railroad, 70 N. H. 53, 85. Such is the rule of reasonable conduct and the method of its application to the normal person whether he is charged with primary fault (Warren v. Railway, 70 N. H. 352, 363) or with contributory negligence. Folsom v. Railroad, 68 N. H. 454, 460. How and why does the rule, or its application, differ if the actor is a minor? And is there anything in the basis for such difference that calls for any distinction between the minor’s primary and his contributory fault?

We are told that “the personification of a standard person helps us realize that the actor’s conduct is to be compared with that of a human being with all of the human failings.” 41 Harv. L. Rev. 9. *510But such standard person is the average prudent adult. In striking this average the law takes into account the failings only of those who have come to maturity. A minor, in the absence of evidence to the contrary, is universally considered to be lacking in judgment. His normal condition is one of recognized incompetency. Moore v. Hoyt, 80 N. H. 168, 170. He is a “human being” subject not only to the ordinary “human failings” but also to those normally incident to immaturity. It is a matter of common knowledge that the normal minor not only lacks the adult’s knowledge of the probable consequences of his acts or omissions but is wanting in capacity to make effective use of such knowledge as he has. His age is a factor in so far as it is a mark of capacity. 37 Yale L. J. 618. But other qualities which are ordinarily the product of experience, using the term in its broader sense as inclusive of education and of the understanding that comes from practice and opportunity for observation, are important considerations in determining his ability both to appreciate the dangerous character of his conduct and to avoid its consequences. A danger may be concealed by the obscurity of intelligence due to immaturity as well as by its own inherent obscurity. Dziedzie v. Company, 81 N. H. 516, 517.

. It is for these reasons that the law recognizes that indulgence must be shown the minor in appraising the character of his conduct. This is accomplished however through no arbitrary exception to the general rule of reasonable care under all the circumstances. As we have said this is always the test. But what is reasonable when the actor is a minor? Manifestly the adult test of the standard man cannot be applied in disregard of the actor’s youth and inexperience. Either a new standard denoting the average person of the minor’s age and development must be taken as the yardstick, or else allowance must be made for the minor’s stage of development as one of the circumstances incident to the application of the general rule of reasonable care. As a practical matter it is not important which course is pursued. This court, however, is inclined to approve the latter both as being in harmony with the universal rule that reasonable conduct under all the circumstances is the true test of due care, and in the interest of simplicity in applying the law to the facts. The latter course merely requires the jury to apply the accepted rule of reasonable conduct under the circumstances, of which the stage of development of the minor is one, while the former imposes upon the jury the duty first to set up a standard youth for each particular case from the composite factors of age and experience as disclosed in the evidence, *511and then to apply that standard to the remaining circumstances in proof. For expressions of doubt as to the existence of a special standard of care in the case of minors see 37 Yale L. J. 618-625.

It is a matter of common knowledge that physical and mental maturity is attained by a gradual but generally progressive process of growth from birth, and that the stage at which it is reached varies with the individual. As the factors making for this variation are not alone congenital but result from teaching and experience, it follows that the age at which maturity is in fact reached cannot be determined with mathematical accuracy. The necessities of society, however, require that some age should be considered as prima facie evidence of maturity. The age of twenty-one, which has been accepted by common consent as the basis for the enfranchisement of infants, as fixing their capacity to make contracts and for other purposes, is allowed to mark the supposed border line between immaturity and maturity. This limit is, however, but an approximation of the truth when applied to the individual. This fact must necessarily be recognized in applying the rule of reasonable conduct to infants. If an infant of seventeen years of age, by reason of natural or artificial causes, has acquired the capacity for observation, reasoning and action of the average prudent adult, this circumstance places him on a parity with the latter. Likewise if his development has progressed only to the stage of the average fourteen year old boy, that circumstance bears on what should be deemed to be reasonable conduct on his part. In other words the fundamental rule of reasonable conduct remains constant, but the circumstances of the age and stage of development of the individual in the process of his growth during his minority are important considerations in applying the rule.

The understanding of this court that the general standard of care governing the conduct of adults, namely, reasonable care under all the circumstances, applies as well to minors as to adults, and that infancy and want of experience of the latter are merely evidential factors to be weighed with the other circumstances, is made plain in Goodale v. York, 74 N. H. 454, 456 and Kambour v. Railroad, supra, 51. In the former we are told that “. . . it cannot be said that the ordinary man would not have attempted such an act, if he had no more knowledge of the situation and no more capacity to comprehend its dangers than the plaintiff [aged 16] is shown to have had.” In the latter case it was said “It does not necessarily follow from the fact that the ordinary man would not have jumped from the train in the way and at the time the plaintiff [aged 14] did, if he had no more *512cause for doing it than the plaintiff is shown to have had . . . that it can be said the plaintiff was guilty of contributory negligence as a matter of law, for he was a mere child with but little experience in riding on the railroad.” Kambour v. Railroad, 77 N. H. 33, 51. Likewise in the cases hereinbefore reviewed, it is plain that the court was not setting up a special standard of care required of infants, but was addressing its attention in each case to the consideration by which the triers of fact were to be governed in applying the general standard to the facts of age and experience there in evidence. In other words the reasoning and the conclusion reached in each of the cases proceed on the theory that in applying the universal rule of reasonable conduct the circumstance of subnormality, by reason of nonage, or want of development if it exists, are but facts to be weighed with the other circumstances.

This is consonant with our treatment of the physical infirmities of adults. Ordinarily we do not take into consideration their mental incapacity short of insanity. But their physical defects are circumstances to be considered in the 'application of the rule. Sleeper v. Sandown, 52 N. H. 244, 252, 253; Daniels v. Lebanon, 58 N. H. 284; 14 L. N. S. note 643; 41 Harv. L. Rev. 13-15. This is because their physical impairments, unlike their mental defects, are susceptible of ascertainment and not because the latter are logically irrelevant. An exception is made in favor of infants because their normal condition is one of incapacity and the state of their progress toward maturity is reasonably capable of determination. So far as defects, whether of adult or minor, can be reasonably ascertained and judged the law recognizes them. As in the case of the physical defect of the blind or one-legged adult, so the mental incapacity imputable to the minor, being deemed capable of proof, is recognized as a factor to be weighed in appraising the character of his conduct. 37 Yale L. Rev. 621. Reasonable conduct is alike demanded of both. The rule of reasonable conduct is constant but the reasonably ascertainable defects of the actor, whether adult or minor, are circumstances to be considered in its application. In neither case does the law make any distinction between the conduct of an actor when charged with actionable fault and when charged with contributory negligence.

The supplementary instruction here, following a statement of the general rule of care, by which the jury were told that “in judging of the conduct of the defendant ... his conduct should be judged according to the average conduct of persons of his age and experience” was a plain statement that they were to consider these factors in ap*513plying the rule already stated. The fact that in repeating the thought the application of these factors was spoken of as “the standard” could not have misled or confused the jury.

John W. Perkins, for the motion.

Hughes & Burns, opposed.

If, however, the jury could have understood the direction as to the application of the rule as setting up a special standard as to infants, it could not have affected their conclusion. The last sentence of the instruction at most purports to read into the rule of reasonable conduct the material circumstances of nonage and want of experience, leaving the rule, as thus modified, to be applied to the further material circumstances in evidence. It merely transferred from one side of the equation to the other an evidential fact; that is, it adds to the rule one of the items in evidence and subtracts it from the items properly to be considered in its application. The fact that such an instruction disregards the process of reasoning by which we arrive at the distinction between the rule and the factors to be considered in its application is of no controlling importance to the jury. It makes no difference to them whether the reason why they are to consider the factors of age and experience in judging the conduct of a minor is because such requirement is of the substance of a rule of law or is one incident to its application. As important as such distinction is to the court here in fixing the singleness and universality of the legal standard of care, any statement to the jury of the course of reasoning by which it is reached would have been of doubtful helpfulness to them. Dervin v. Company, 81 N. H. 108, 114.

Judgment for the defendant, Elwood F. MacRury.

All concurred.

On Rehearing.

Snow, J.

Attention is called to our omission to deal with the plaintiff’s claim in argument that all operators licensed under P. L., c. 101, ss. 1, 2, 3 are held to the same degree of care. This statute prohibits the operation of a motor vehicle without a license (s. 1), provides for the issuance of a license upon application and proof to the satisfaction of the commissioner that the applicant is a proper *514person to receive it (s. 2) and forbids the issuance of a license to any person under sixteen years of age, s. 3. The plaintiff’s contention is based upon a misconception of the design and purport of these provisions. The purpose of the legislature was the protection of the traveling public. This is accomplished by imposing certain positive limitations of the right to operate cars upon the public highways. Johnson v. Railroad, 83 N. H. 350, 359-361. Sec. 3 is a legislative declaration that minors under sixteen years of age are incompetent to operate such vehicles, and arbitrarily denies them the right. Sec. 2 provides a means of assuring a minimum capacity in drivers of motor vehicles by denying the right to all eligible applicants who do not pass the test, whether adults or minors above the prohibited age. The legislature has not declared that all successful applicants shall be deemed to be of equal capacity and discretion in operating a vehicle. It has not undertaken to deal with the rule of care at all. . It neither expressly or impliedly authorizes the trier of facts to disregard the legally ascertainable defects of the actor when material to the issue of his reasonable conduct, whether he be an adult or a minor. The authorized license is not a certificate of the physical perfection of the adult or of the mental maturity of the eligible minor. That the legislature did not intend the latter is demonstrated by a later provision in the same chapter (s. 14) which limits the issuing of licenses to chauffeurs (i.e. operators of cars of others for hire, P. L., c. 99, s. 1, hi) to persons exceeding eighteen years of age. Had the intention been to modify the rule of reasonable conduct in the vital respect claimed by the plaintiff more appropriate words would have been used.

Former result affirmed.

All concurred.

Lampron, J.

As to the standard of care to be applied to the conduct of the decedent Robert E. Daniels, 19 years of age, the *408Trial Court charged the jury in part as follows:

“ Now, he is considered a minor, being under the age of twenty-one, and a minor child must exercise the care of the average child of his or her age, experience and stage of mental develop - ment. In other words, he is not held to the same degree of care as an adult. ”

Concededly these instructions substantially reflect the rule by which the care of a minor has been judged heretofore in the courts of our state. Charbonneau v. MacRury, 84 N. H. 501, 510; Codding v. Makris, 104 N. H. 381, 382. However an examination of the cases will reveal that in most the minors therein were engaged in activities appropriate to their age, experience and wisdom. These included being a pedestrian (George v. Company, 86 N. H. 121; Howe v. Company, 87 N. H. 122), riding a bicycle (Shimkus v. Caesar, 95 N. H. 286), riding a horse (Katsikas v. Railway, 90 N. H. 21), coasting (Codding v. Makris, 104 N. H. 381).

We agree that minors are entitled to be judged by standards commensurate with their age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom. Hence when children are walking, running, playing with toys, throwing balls, operating bicycles, sliding or engaging in other childhood activities their conduct should be judged by the rule of what is reasonable conduct under the circumstances among which are the age, experience, and stage of mental development of the minor involved. Charbonneau v. MacRury, 84 N. H. 501.

However, the question is raised by the defendant in this case whether the standard of care applied to minors in such cases should prevail when the minor is engaged in activities normally undertaken by adults. In other words, when a minor undertakes an adult activity which can result in grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use, the defendant maintains that the minor’s conduct in that instance, should meet the same standards as that of an adult.

Many recent cases have held that “when a minor assumes responsibility for the operation of so potentially dangerous an instrument as an automobile, he should . . . assume responsibility for its careful and safe operation in the light of adult standards. ” 2 Idaho L. Rev. 103, 111 (1965); Dellwo v. Pearson, 259 Minn. 452; Nielsen v. Brown, 232 Ore. 426; Carano v. Cardina, 115 *409Ohio App. 30; Wagner v. Shanks, 194 A. 2d 701 (Del. 1963); Harrelson v. Whitehead, 365 S. W. 2d 868 (Ark. 1963); Dawson v. Hoffmann, 43 Ill. App. 2d 17; Neudeck v. Bransten, 233 Cal. App. 2d 17; Prichard v. Veterans Cab Company, 63 Cal. 2d 727. The rule has been recognized in Restatement (Second), Torts, s. 283 A, comment c, in 2 Harper and James, The Law of Torts, s. 16.8, p. 926, and in Prosser, Torts (3d ed.) p. 159. In an annotation in 97 A.L.R. 2d 872 at page 875 it is said that recent decisions “hold that when a minor engages in such activities as the operation of an automobile or similar powerdriven device, he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and is thenceforth held to the same standard as all other persons. ”

One of the reasons for such a rule has been stated thusly in Dellwo v. Pearson, supra, 458: “ To give legal sanction to the operation of automobiles by teenagers 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. . . . [I]t 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 . . . may anticipate conduct that does not reach an adult standard of care or prudence. However, one cannot know whether the operator of an approaching automobile ... is a minor or an adult, and usually cannot protect himself against youthful imprudence even if warned. ”

The Supreme Court of Delaware in Wagner v. Shanks, 194 A. 2d 701, 708, stated that their “statute, which permits the licensing of minors, does not provide two standards of care for the licensing of minors and adults. The . . . act was passed for the protection of the general public and users of the streets and highways and not for the protection of immature . . . and negligent drivers . . . We consider it to be a matter of paramount public policy, in fact a rule of necessity, that society in general be assured that all drivers of motor vehicles upon our highways be charged with equal responsibility in the operation of motor vehicles regardless of age. ”

RSA 262-A:2 which establishes rules of the road for the *410operation of motor vehicles on our highways reads as follows: “Required obedience to traffic laws. It is unlawful and ... a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter. ” (Emphasis supplied). This is some indication of an intent on the part of our Legislature that all drivers must, and have the right to expect that others using the highways, regardless of their age and experience, will, obey the traffic laws and thus exercise the adult standard of ordinary care.

RSA ch. 169 designed to permit the exercise of the powers of the State as “parens patriae” over minors (Petition of Morin, 95 N. H. 518, 520) specifically excluded in 1961, its application “in the case of persons sixteen years of age or over who are charged with the violation of a motor vehicle law, an aeronautic law, a law relating to navigation of boats or a game law that pertains to hunting any wild birds or wild animal of any kind. ” Laws 1961, 74:1. The Legislature has again indicated its intent to have the conduct of minors who are engaged in adult activities treated in the same manner and judged by the same standards as are adults. See In re Perham, 104 N. H. 276.

The rule charged by the Trial Court pertaining to the standard of care to be applied by the jury to the conduct of the minor plaintiff Robert E. Daniels in the operation of the motorcycle was proper in “ the bygone days ” when children were using relatively innocent contrivances. See Annot. 97 A.L.R. 2d 872, 875. However in the circumstances of today’s modern life, where vehicles moved by powerful motors are readily available and used by many minors, we question the propriety of a rule which would allow such vehicles to be operated to the hazard of the public, and to the driver himself, with less than the degree of care required of an adult.

We. are of the opinion that to apply to minors a more lenient standard in the operation of motor vehicles, whether an automobile or a motorcycle, than that applied to adults is unrealistic, contrary to the expressed legislative policy, and inimical to public safety. Furthermore when a minor is operating a motor vehicle there is no reason for making a distinction based on whether he is charged with primary negligence, contributory negligence, or a causal violation of a statute and we so hold. Charbonneau v. MacRury, 84 N. H. 501, 509; Codding v. Makris, 104 N. H. 381; Rothacher v. Jones, 38 Ill. App. 2d 19; Harrelson v. *411 Whitehead, 365 S. W. 2d 868 (Ark. 1963). See Annot. 97 A.L.R. 2d 872, 875.

We hold therefore that a minor operating a motor vehicle, whether an automobile or a motorcycle, must be judged by the same standard of care as an adult and the defendant’s objection to the Trial Court’s charge applying a different standard to the conduct of plaintiff’s intestate was valid. Neudeck v. Bransten, 233 Cal. App. 2d 17; Prichard v. Veterans Cab Company, 63 Cal. 2d 727; Dellwo v. Pearson, 259 Minn. 452; Carano v. Cardina, 115 Ohio App. 30; Wagner v. Shanks, 194 A. 2d 701 (Del. 1963); Nielsen v. Brown, 232 Ore. 426; Dawson v. Hoffmann, 43 Ill. App. 2d 17.

Exception sustained.

All concurred.

SHIRLEY S. ABRAHAMSON, J.

¶ 1. This is a review of a published decision of the court of appeals affirming a judgment and order of the Circuit Court for Juneau County, John R Roemer, Judge.1

f 2. This case arises from the collision of a passenger automobile driven by Ronald J. Dakter, the plaintiff,2 and a 65-foot semi-trailer truck operated by Dale Cavallino, the defendant.3 After a 10-day trial, *745the jury found the defendant 65 percent causally negligent and the plaintiff 35 percent causally negligent and assessed damages at $1,097,955.86 for the plaintiff and $63,366 for the plaintiffs wife.

¶ 3. The defendant raises only one question of law for our consideration: Was the truck driver negligence instruction given to the jury on the standard of care applicable to the defendant as the operator of a semi-trailer truck erroneous, such that the defendant is entitled to a new trial?

¶ 4. The truck driver negligence instruction that is the subject of the defendant's challenge provided in relevant part as follows:

At the time of the accident, the defendant, Dale Cavallino was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding commercial driver's licenses. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

*746¶ 5. The defendant asserts that the truck driver negligence instruction was erroneous because it directed the jury to consider the defendant's special knowledge and skill as a semi-trailer truck driver when determining whether the defendant was negligent. According to the defendant, an instruction regarding an actor's special knowledge and skill should not be given in "mine-run" motor vehicle negligence cases like the instant case; it should be given only in professional negligence cases. The defendant contends that by giving an instruction regarding the defendant's special knowledge and skill, the circuit court imposed a heightened standard of care on him. This, says the defendant, was prejudicial error entitling him to a new trial.

¶ 6. In contrast, the plaintiff contends that the truck driver negligence instruction directed the jury to take the special knowledge and skill possessed by professional semi-trailer truck drivers into account only in order to determine whether the defendant met the standard of ordinary care. In the plaintiffs view, the truck driver negligence instruction did not impose a heightened standard of care on the defendant and was not erroneous.

¶ 7. The circuit court sided with the plaintiff, entering a judgment on the verdict in favor of the plaintiff and denying the defendant's post-verdict motions.

¶ 8. The court of appeals affirmed the judgment and order of the circuit court. The court of appeals explained that it did not consider the challenged jury instruction a misstatement of the law:

[I]n evaluating whether an actor has acted as a reasonable person would, jurors may consider the actor's superior knowledge or skills when the knowledge or *747skills give the actor an ability to avoid injury or damage to others. If someone "has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonable careful person."4

¶ 9. The court of appeals further explained that although the truck driver negligence instruction was not incorrect, a jury could possibly have misinterpreted the instruction as imposing a higher standard of care on semi-trailer truck drivers than that applied to other drivers:

[W]e see at least some danger that the truck driver instruction could have been interpreted by the jury to suggest that [the defendant] should be held to a different, higher standard of care than other drivers because he is a professional truck driver.... If understood this way, it would state the legal doctrine incorrectly.5

¶ 10. The court of appeals ultimately concluded that it was "at least as likely as not that jurors aiming to apply the [truck driver negligence] instruction would have hit the mark by focusing on evidence of [the defendant's] superior knowledge and skills, and not missed the mark by holding him to a separate, higher truck driver standard of care."6

¶ 11. Nevertheless, the court of appeals opted to assume, without deciding, that the truck driver negligence instruction was erroneous. It then denied the defendant relief, concluding that any error in the challenged jury instruction was not prejudicial.

*748¶ 12. We conclude that the circuit court did not err in giving the truck driver negligence instruction. The truck driver negligence instruction did not misstate the law and was not misleading. The defendant's arguments to the contrary are not persuasive, and the defendant is not entitled to a new trial. Accordingly, although our reasoning differs, we affirm the decision of the court of appeals.

I

¶ 13. Many details about the collision that spawned the instant litigation remain in dispute. The following description of the collision focuses on the uncontested facts.

¶ 14. The collision took place on May 29, 2008, at the intersection of State Trunk Highway 80 (running north/south) and State Trunk Highway 82 (running east/west). This intersection is located in Elroy, Juneau County, Wisconsin.

¶ 15. The plaintiff was driving a passenger automobile northbound on Highway 80. He intended to turn left onto Tilmar Street, which is the portion of Highway 82 running west of Highway 80. He approached the intersection with his turn signal on and stopped.

¶ 16. Wyman Hoiland, who is not a party to this lawsuit, was driving a van southbound on Highway 80 and intended to turn left onto Highway 82. Hoiland approached the intersection with his turn signal on and stopped. His vehicle was opposite the plaintiffs vehicle in the intersection and was in front of the defendant's semi-trailer truck.

¶ 17. The defendant, who had a commercial driver's license issued by the State of Wisconsin and had driven a semi-trailer truck for 31 years, was driving a *74965-foot semi-trailer truck southbound on Highway 80. The defendant intended to continue straight on Highway 80.

f 18. As the defendant approached the intersection, Hoiland may have turned left, permitting the defendant to remain in his lane and continue straight. Alternatively, Hoiland may have remained in the intersection waiting to turn left, leading the defendant to switch into the right-hand lane in order to drive around Hoiland and continue straight.

¶ 19. In any event, it is undisputed that the plaintiff attempted to execute a left turn onto Til mar Street and collided with the defendant's semi-trailer truck. The plaintiff sustained serious injuries.

¶ 20. The plaintiff filed suit against the defendant, asserting that the defendant's negligence caused the collision.

¶ 21. Before trial, the parties agreed that the usual standard of ordinary care applies to semi-trailer truck drivers. They disagreed, however, about whether the jury should hear expert testimony regarding the special knowledge and skill possessed by semi-trailer truck drivers.

¶ 22. The circuit court agreed with the position of both parties that the standard of ordinary care applies to semi-trailer truck drivers, stating as follows: "I don't believe there is a heightened standard of care. I believe all of us are required to maintain our speed, maintain our management, control of our vehicles, and also to maintain a proper look-out."

¶ 23. The circuit court went on to explain that with regard to semi-trailer truck drivers, ordinary care means the care "a reasonable and prudent truck driver would use under the same or similar circumstances." *750Accordingly, the circuit court ruled that expert testimony regarding the knowledge and skill possessed by semi-trailer truck drivers was admissible.

¶ 24. Three expert witnesses testified regarding the safety standards and practices that govern semitrailer truck drivers.

¶ 25. The plaintiff called Charles Collins, a retired truck driving safety instructor for a driver training program at a technical college, as an expert witness. Collins explained, among other things, that the defendant was driving his semi-trailer truck with an empty trailer and that "[i]t takes longer to stop with an empty trailer." Collins also explained that the pavement was wet and that "[w]hen the pavement is wet, it is accepted in all literature, textbooks, [and] videos that you must reduce your speed by a third," which the defendant did not do.

¶ 26. The plaintiff also called Andrew Sievers, a safety consultant, as an expert witness. Sievers testified about defensive driving techniques for semi-trailer truck drivers, including the "cushion of safety" (that is, the distance) that semi-trailer truck drivers should maintain between the front of their trucks and the back of the vehicles in front of them. Sievers opined that the defendant had not been maintaining a proper cushion of safety when the collision occurred. Sievers also explained that an intersection is "the location where a truck driver has the most likelihood to be involved in an accident, and because of that. . . the truck driver should be extra cautious and should reduce their speed. . . ." Sievers testified that in his opinion, the defendant was driving at an unsafe speed considering that he was entering an intersection in rainy weather.

*751¶ 27. The defendant called William Emerick, a safety consultant, as an expert witness. Emerick discussed the importance of maintaining hazard awareness and using common sense when operating a semitrailer truck. Emerick also asserted that driving as slowly as official safety standards require can be dangerous, even when approaching an intersection in rainy weather, because it can cause "traffic backup" and is "something people wouldn't expect." Emerick testified that in his view, when the accident occurred, the defendant was driving his truck in conformity with normal safe driving practices and industry standards for drivers of commercial motor vehicles.

¶ 28. When the circuit court took up the issue of jury instructions near the close of trial, the parties revisited the subject of the special knowledge and skill possessed by semi-trailer truck drivers. After lengthy argument, the circuit court gave the truck driver negligence instruction, an instruction specific to the defendant as the operator of a semi-trailer truck.

¶ 29. The jury returned a verdict in favor of the plaintiff. The defendant filed post-verdict motions seeking a new trial. The circuit court denied the defendant's post-verdict motions and entered a judgment on the verdict in favor of the plaintiff. The court of appeals affirmed.

II

¶ 30. Because the defendant challenges a jury instruction, we first recite the standard of review applicable to a challenge to jury instructions.

¶ 31. A circuit court has broad discretion in crafting jury instructions based on the facts and circum*752stances of the case.7 A circuit court is required, however, to exercise its discretion "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence."8

¶ 32. We review jury instructions as a whole to determine whether "the overall meaning communicated by the instructions was a correct statement of the law . . . ."9 Whether the circuit court erred by stating the law incorrectly or in a misleading manner constitutes a question of law this court decides independently of, but benefiting from, the analyses of the circuit court and court of appeals.10

¶ 33. Even if the truck driver negligence instruction was in error, the defendant is not necessarily entitled to a new trial. Erroneous jury instructions warrant reversal and a new trial only when the error is prejudicial.11 Whether an error is prejudicial is a question of law this court decides independently of, but benefiting from, the analyses of the circuit court and court of appeals.12

*753III

¶ 34. Our analysis of the truck driver negligence instruction has three parts.

¶ 35. First, we set forth the negligence principles that govern the instant dispute, namely the superior knowledge rule, which requires an actor with special knowledge or skill to act commensurate with that knowledge or skill, and the profession or trade principle, which requires an actor engaged in a profession or trade to act as a reasonable member of such profession or trade would act under the same or similar circumstances.

¶ 36. Second, we determine that these two negligence principles apply to the defendant and thus that the truck driver negligence instruction did not misstate the law.

¶ 37. Third, we determine that in the context of the jury instructions as a whole, the truck driver negligence instruction was not misleading.

¶ 38. Because the truck driver negligence instruction was neither incorrect nor misleading, we conclude that the circuit court did not err. We therefore need not and do not address the issue of prejudice.

A

¶ 39. We begin with well-settled principles of negligence.

¶ 40. Negligence is the failure to exercise ordinary care under the circumstances, that is, the failure to exercise "that degree of care which under the same *754or similar circumstances the great mass of mankind would ordinarily exercise."13

¶ 41. The standard of ordinary care is an objective standard; it is the care that would be exercised by a reasonable actor under the circumstances.

¶ 42. The circumstances that demarcate the bounds of ordinary care in a particular case include any relevant special knowledge or skill the actor brings to bear.14 This principle is sometimes called the "superior knowledge rule."15

¶ 43. Restatement (Second) of Torts § 289, at 41 (1965) sets forth the superior knowledge rule as follows: "The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising . . . (b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has."16

*755¶ 44. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 12, at 141 (2010) describes the superior knowledge rule as follows: "If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person."17

¶ 45. In the seminal Wisconsin case of Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), this court made clear that the superior knowledge rule applies in Wisconsin.

1 46. The Osborne court first defined negligence as conduct that foreseeably creates an unreasonable risk of harm to the interests of another, stating:

Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm.18

¶ 47. The Osborne court then declared: "If the actor in a particular case in fact has superior perception or possesses superior knowledge, he is required to exercise his superior powers in determining whether or not his conduct involves an unreasonable risk of injury to the interests of another . . . ,"19 Thus, pursuant to the superior knowledge rule adopted in Osborne, *756an actor with special knowledge or skill meets the standard of ordinary care by employing that special knowledge or skill.

¶ 48. Various tort texts provide similar explanations of the superior knowledge rule. See, for example, the following:

• "The superior knowledge rule can be explained by saying that the actor's superior knowledge is one of the 'circumstances' that a reasonable person would take into account or by saying that a reasonable person will use all the knowledge he actually has in dealing with a recognizable risk.....So it is right to tell a jury that a reasonable person will use the relevant special knowledge he has, but not right to tell the jury that he is held to a higher standard of care." 1 Dan B. Dobbs et al., The Law of Torts § 132, at 417 (2nd ed. 2011) (footnotes omitted).

• "[I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it. Experienced milk haulers, hockey coaches, expert skiers, construction inspectors, and doctors must all use care which is reasonable in light of their superior learning and experience, and any special skills, knowledge or training they may personally have over what is normally possessed by persons in the field." W. Page Keeton et al., Prosser and Keaton on Torts § 32, at 185 (5th ed. 2000) (footnotes omitted).

• "In addition to the knowledge that may be imputed to a reasonable person, a person's actual knowledge and skills may be taken into account when the level of the person's knowledge or skills exceeds the average." 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21 (2d ed. 1990).

*757¶ 49. These texts neither bind this court nor declare the law of Wisconsin. They do, however, support the superior knowledge rule adopted in Osborne.

¶ 50. The parties' briefs and the court of appeals opinion spend much time discussing the superior knowledge rule and debating whether it applies to the defendant. A close examination of the briefs and the court of appeals opinion, however, reveals that the parties and the court of appeals have at times conflated the superior knowledge rule with a related negligence principle that applies to individuals engaged in a profession or trade. We turn to that principle now.

¶ 51. Ordinarily, actors engaged in a profession or trade must exercise the knowledge and skill that a reasonable member of that profession or trade would exercise under the same or similar circumstances.20 In Kerkman v. Hintz, 142 Wis. 2d 404, 419-20, 418 N.W.2d 795 (1988), for example, this court stated that "a chiropractor must exercise the degree of care, diligence, judgment, and skill which is exercised by a reasonable chiropractor under like or similar circumstances."21

*758¶ 52. Various Wisconsin pattern jury instructions regarding the standard of ordinary care applicable to those in particular professions and trades illustrate the principle that a person engaged in a profession or trade must act commensurate with the knowledge and skill a reasonable member of that profession or trade possesses.

¶ 53. For example, the Wisconsin pattern jury instruction titled "Negligence: Building Contractor" defines the ordinary care standard applied to building contractors as the degree of care exercised by a reasonably prudent and skilled contractor engaged in a similar construction project. Thus, a jury must consider the knowledge and skill possessed by building contractors to determine whether a particular contractor's conduct met the standard of ordinary care.

¶ 54. The pattern jury instruction applicable to building contractors provides in full as follows:

A building contractor has a duty to exercise ordinary care in the construction or remodeling of a building. This duty requires such contractor to perform work with the same degree of care and skill and to provide such suitable materials as are used and provided by contractors of reasonable prudence, skill, and judgment in similar construction.22

¶ 55. Likewise, the pattern jury instruction titled "Negligence of Insurance Agent" defines the ordinary care standard applied to insurance agents by *759reference to the care, skill, and judgment usually-employed by agents licensed to sell insurance in Wisconsin. Accordingly, a jury must consider the knowledge and skill possessed by licensed insurance agents to determine whether a particular agent's conduct met the standard of ordinary care.

¶ 56. This pattern jury instruction reads in relevant part as follows: "An insurance agent, such as (defendant), must use the degree of care, skill, and judgment which is usually exercised under the same or similar circumstances by insurance agents licensed to sell insurance in Wisconsin."23

¶ 57. These are just two of several examples of Wisconsin's adoption of the profession or trade principle. The profession or trade principle is similarly reflected in pattern jury instructions regarding the standard of ordinary care applicable to teachers,24 chiropractors,25 doctors,26 nurses and licensed tech*760nicians,27 dentists,28 and lawyers.29

¶ 58. The profession or trade principle and the superior knowledge rule are closely related. Both recognize that a reasonable actor will use any relevant special knowledge or skill the actor possesses, including the knowledge and skill the person possesses on account of his or her occupation.30

*761¶ 59. The two doctrines also work in combination in certain cases: An actor engaged in a profession or trade who has knowledge or skill superior to that of a reasonable person within that profession or trade must employ such knowledge or skill in order to meet the standard of ordinary care.

¶ 60. Dobbs' text on torts explains the overlapping relationship between these two negligence doctrines as follows:

Superior or specialized knowledge or skill. A reasonable person will act in the light of (a) knowledge shared by the community generally and also (b) information, knowledge and skill that he himself has that is not generally known and that reasonable people would not ordinarily have. . . .

The superior knowledge rule has obvious application to professionals like physicians and surgeons, who are held to possess the skills and knowledge of others in good standing in their profession. A physician who knows more than a layman must use that additional knowledge in the practice of medicine. But the point reaches even further. A physician who knows more than other physicians is also expected to use that special knowledge. .. . The principle applies equally to any kind of skill or experience.

Reasonable person standard and superior knowledge. The superior knowledge rule can be explained by saying that the actor's superior knowledge is one of the "circumstances" that a reasonable person would take into account or by saying that a reasonable person will use all the knowledge he actually has in dealing with a recognizable risk. Either way, the standard of care, that of the reasonable person under the same or similar circumstances, remains the same. So it is right to tell a jury that a reasonable person will use the relevant *762special knowledge he has, but not right to tell the jury that he is held to a higher standard of care.31

¶ 61. Importantly, although both the superior knowledge rule and the profession or trade principle describe the circumstances the jury is to consider in determining negligence, neither doctrine sets forth a heightened standard of care.32

¶ 62. In sum:

• Under the superior knowledge rule, a person with special knowledge or skill is required to exercise the care a reasonable person with such special knowledge or skill would exercise under the same or similar circumstances.

• Under the profession or trade principle, a person engaged in a profession or trade is required to exercise the care a reasonable member of the profession or trade would exercise under the same or similar circumstances.

• Regardless of whether the jury applies the superior knowledge rule, the profession or trade principle, both doctrines, or neither doctrine, the standard of care remains that of ordinary care.

*7631 63. With these negligence principles in mind, we turn to the truck driver negligence instruction, which is the subject of the defendant's challenge in the present case.

B

1 64. We now explore whether the superior knowledge rule and the profession or trade principle apply to the defendant in the instant case. We conclude that they do and thus that the truck driver negligence instruction did not misstate the law.

¶ 65. The truck driver negligence instruction required the jury to consider the defendant's special knowledge or skill as a "professional" semi-trailer truck driver, thereby incorporating both the superior knowledge rule and the profession or trade principle. The instruction provided as follows:

At the time of the accident, the defendant, Dale Cavallino, was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding a commercial driver's license. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

¶ 66. The defendant asserts, however, that neither the superior knowledge rule nor the profession or trade principle applies to him.

*764¶ 67. The defendant concedes that an individual must undergo specific training and testing to obtain a commercial driver's license and operate a semi-trailer truck. Nevertheless, the defendant contends that the jury cannot take into account the special knowledge or skill required to operate a semi-trailer truck. According to the defendant, "all users of the roadway have the same duty of ordinary care regardless of their driving experience or skills." In the defendant's view, permitting a jury to "consider a driver's individual skill, experience, and training would result in an unworkable subjective standard of care with 'ceaseless variations.' "33

¶ 68. The defendant further contends that the profession or trade principle applies only in professional malpractice cases, that is, in situations in which the actor is providing a highly specialized professional service to the plaintiff that involves a unique standard of care. The defendant points out that he was not providing a service to the plaintiff and that semi*765trailer truck driving is not the kind of highly specialized occupation normally classified as a profession.

¶ 69. We disagree with the defendant and conclude that both the superior knowledge rule and the profession or trade principle apply to the defendant. We review them in turn.

¶ 70. Insofar as the defendant argues that the superior knowledge rule does not apply to semi-trailer truck drivers, he is plainly incorrect. The skill and knowledge required to drive a semi-trailer truck are not part of the "ordinary equipment" of a reasonable person.34 Rather, they are the result of acquired learning and experience.

¶ 71. The defendant was required to, and did, undergo specialized testing and obtain a specialized license to demonstrate that he possesses the special knowledge and skill necessary to safely operate a semi-trailer truck. The defendant's assertion that this special knowledge and skill could not be considered by the jury is not cogent.

| 72. The statutes and regulations applicable to semi-trailer trucks and semi-trailer truck drivers bolster our conclusion that the superior knowledge rule applies to the defendant.

¶ 73. Semi-trailer trucks are commercial motor vehicles. Under Wis. Stat. § 343.05(2) (2007-08),35 a person can operate a commercial motor vehicle only if certain conditions are met. Among other requirements, *766the person must carry a commercial driver's license that is not revoked, suspended, canceled, or expired.36

¶ 74. Federal regulations likewise dictate that those operating commercial motor vehicles must generally carry a commercial driver's license.37 Federal regulations also specify the knowledge and skills drivers must possess in order to obtain such licensure. Three provisions are particularly relevant in the instant case.

¶ 75. First, 49 C.F.R. § 383.110 provides that to ensure safety, commercial motor vehicle drivers are required to have the baseline level of knowledge and skills set forth in subsequent provisions. It states in full as follows:

All drivers of [commercial motor vehicles] must have the knowledge and skills necessary to operate a [commercial motor vehicle] safely as contained in this subpart. The specific types of items that a State must include in the knowledge and skills tests that it administers to [commercial driver's license] applicants are included in this subpart.

¶ 76. Second, 49 C.F.R. § 383.111 sets forth and explains 20 areas in which commercial motor vehicle operators are required to have specified knowledge to obtain a commercial driver's license. These areas include safe operations regulations, speed management, extreme driving conditions, hazard perceptions, and emergency maneuvers.38

*767¶ 77. Third, 49 C.F.R. § 383.113 enumerates the skills a commercial motor vehicle operator must possess to obtain a commercial driver's license. These skills include identifying safety-related vehicle parts, like the engine compartment and brakes;39 inspecting and operating air brakes;40 and safely driving the vehicle by, for example, maintaining "a safe following distance depending on the condition of the road."41

¶ 78. These state statutes and federal regulations demonstrate that the conduct of a semi-trailer truck driver should be assessed by reference to the conduct of a reasonable person with the special competence required of semi-trailer truck drivers — not by reference to the conduct of a reasonable, ordinary driver.

¶ 79. We turn to the profession or trade principle, which was incorporated into the truck driver negligence instruction.

¶ 80. The Wisconsin pattern jury instructions discussed previously demonstrate that the profession or trade principle applies not merely to highly specialized professionals, as the defendant asserts, but more broadly to those engaged in occupations that require the exercise of "acquired learning, and aptitude developed by special training and experience."42

¶ 81. Restatement (Second) of Torts § 299A is also helpful in determining what constitutes a profession or trade. A comment to § 299A references a wide range of occupations (including plumbers, carpenters, *768and blacksmiths) to which the profession or trade principle generally applies. This comment reinforces our conclusion that the profession or trade principle has broader applicability than the defendant lets on. It governs an actor in the performance of his or her occupation so long as reasonably performing that occupation requires acquired learning and aptitude developed by special training and experience.43

¶ 82. Clearly, driving a semi-trailer truck constitutes a profession or trade within the context of the profession or trade principle. It was therefore appropriate for the jury to evaluate the defendant's conduct by reference to the conduct of a reasonable semi-trailer truck driver.

¶ 83. For the reasons set forth, we conclude that the truck driver negligence instruction did not misstate the law.

¶ 84. A circuit court can err in instructing the jury not only by misstating the law but also by stating the law in a manner likely to mislead the jury. Accordingly, we now turn to the possibility (discussed by the court of appeals) that the jury misinterpreted the truck driver negligence instruction.

*769c

¶ 85. The defendant's basic contention is that even if the truck driver negligence instruction did not technically misstate the law, it likely misled the jury and was therefore prejudicial error.

¶ 86. The defendant argues that the truck driver negligence instruction "had the practical effect of telling the jury that [the defendant] had a higher standard of care because he held a [commercial driver's license]."44 The defendant points out that within the same negligence instruction, the circuit court set forth the standard of ordinary care applicable to the plaintiff. The implication, says the defendant, was that the jury should apply a heightened standard of care to the defendant.

¶ 87. We disagree with the defendant. The truck driver negligence instruction was not a stand-alone instruction. It was part of lengthy set of negligence instructions given by the circuit court. We do not evaluate the truck driver negligence instruction in isolation. We review the jury instructions as a whole to determine whether they fully and fairly convey the applicable rules of law to the jury.45

*770¶ 88. Relevant here are several paragraphs of the negligence instructions in which the circuit court (1) introduced the special verdict questions pertaining to negligence; (2) introduced the concepts of negligence and of ordinary care; (3) provided specific instruction regarding the standard of care applicable to the defendant as a semi-trailer truck driver; and (4) elaborated upon the standard of ordinary care, with particular attention to highway driving.46

¶ 89. These paragraphs of the negligence instructions provided as follows:

Question number 1 and question number 3 of the verdict asked whether or not [the defendant] and [the plaintiff] were or were not negligent. These questions read as follows, question number 1, was [the defendant] negligent in the operation of his vehicle immediately before or during the accident, yes or no. Question number 3, was [the plaintiff] negligent in the operation of his automobile immediately before or during the accident, yes or no. I will now instruct you of the definition of negligence and the various rules and safety statutes you must apply to determine whether or not either [the defendant] or [the plaintiff] or both were negligent in this case.

A person is negligent when they fail to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person not using ordinary care is negligent, if the person without intending to do harm does something or fails to do something that a reasonable person *771would recognize as creating an unreasonable risk of injury or damage to a person or property. At the time of the accident, [the defendant] was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding commercial driver's licenses. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury. A person must, however, exercise ordinary care to take precautions to avoid injury to himself or herself. A person must exercise ordinary care to employ his sense of sight and hearing so as to become aware of the existence of danger to him or her. A failure to do so is negligence. It is the duty of every person to exercise ordinary care, and to recognize and appreciate all dangers that are open and obvious to him, or which [would] have been recognized and appreciated by a reasonable, prudent person under the same or similar circumstances. That the warning of the existence of danger was not seen or was not heard does not free one from negligence. In addition, one who looks and fails to see or listens and fails to hear a warning of danger, which under like or similar circumstances would have been seen or would have been heard by a reasonable, prudent person is as guilty of negligence as one who did not look or listen at all. However, a person is not bound to see every hazard or danger in his or her pathway even though they should be plainly observable or to remember the existence of every condition of *772which a person has had knowledge. A person is only-required to act as a reasonable, prudent person would act under the same or similar circumstances.

To be free of negligence, a person must exercise ordinary care in choosing his or her course of conduct in the pursuit of that choice. A person is not guilty of negligence in making the choice of conduct if the person has no knowledge that one course of conduct carries a greater hazard than another provided that such lack of knowledge is not the result of a person's failure to exercise ordinary care. Every user of the highway has the right to assume that every other user of the highway will obey the rules of the road. However, a person cannot continue to make that assumption if the person becomes aware or in the exercise of ordinary care, ought to be aware that another user of the highway by his or her conduct is creating a dangerous situation. Under such circumstances, a person using the highway must use ordinary care to avoid the danger. A driver must use ordinary care to keep a careful look out ahead and about him or her for the presence of vehicles, movement, objects or pedestrians, or may be within approaching the driver's course of travel. In addition, the driver has to use ordinary care to look out to the condition of the highway ahead, for traffic signs, markers, obstructions to vision, and other things that might warn of possible danger. The failure to use ordinary care to keep a careful look out is negligence.

¶ 90. The defendant's contention that the truck driver negligence instruction likely misled the jury is untenable in light of the numerous statements, made throughout the portion of the negligence instructions set forth above, that the standard of ordinary care applies to all drivers.

*773¶ 91. Particularly relevant here are the portions of the jury instructions immediately preceding and immediately following the truck driver negligence instruction.

¶ 92. Right before giving the truck driver negligence instruction, the circuit court instructed the jury that negligence is the failure to exercise ordinary care. The circuit court did not limit this statement to the plaintiff in any way; it stated the standard of ordinary care in general terms, as applied to everyone.

¶ 93. The circuit court's exact words, taken from the pattern jury instruction on negligence, were as follows:

A person is negligent when they fail to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person not using ordinary care is negligent, if the person without intending to do harm does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

¶ 94. Right after giving the truck driver negligence instruction, the circuit court reiterated the standard of ordinary care and then elaborated upon the concept of negligence in the context of highway driving.

¶ 95. The circuit court stated as follows:

It is the duty of every person to exercise ordinary care, and to recognize and appreciate all dangers that are open and obvious to him, or which [would] have been recognized and appreciated by a reasonable, prudent person under the same or similar circumstances. . ..

*774 Every user of the highway has the right to assume that every other user of the highway will obey the rules of the road. However, a person cannot continue to make that assumption if the person becomes aware or in the exercise of ordinary care, ought to be aware that another user of the highway by his or her conduct is creating a dangerous situation. Under such circumstances, a person using the highway must use ordinary care to avoid the danger.

(Emphasis added.)

¶ 96. Read as a whole, the message conveyed by the jury instructions was clear: The standard of ordinary care applies to both the plaintiff and the defendant. Ordinary care is the care a reasonable person would exercise under the circumstances. In the instant case, the circumstances relevant to a determination of whether the defendant acted reasonably include the fact that at the time of the collision, the defendant was engaged in a profession or trade (semi-trailer truck driving) and possessed the special knowledge and skill required of semi-trailer truck drivers.

¶ 97. Could the truck driver negligence instruction have been more clearly worded? Perhaps. But perfection is not what the law requires. An appellate court need decide only whether "the overall meaning communicated by the instruction. . . was a correct statement of the law[ ] . . . ."47 In the instant case, the overall meaning communicated by the totality of the negligence instructions was a correct statement of the law and was not misleading.

*775¶ 98. In sum, we conclude that the circuit court did not err in giving the truck driver negligence instruction. The truck driver negligence instruction did not misstate the law and was not misleading. The defendant's arguments to the contrary are not persuasive, and the defendant is not entitled to a new trial.

By the Court. — The decision of the court of appeals is affirmed.

PATIENCE DRAKE ROGGENSACK, C.J.

¶ 99. (concurring). The central issue presented is whether the circuit court erred by giving the jury a special skills instruction because Dale L. Cavallino held a commercial license to operate the semi-truck at the time of the accident.1 I conclude that the circuit court's special skills instruction was erroneous because it incorrectly stated the law. However, I also conclude that the error was harmless. Accordingly, I would affirm the court of appeals, and although I do not join the majority opinion, I respectfully concur.

I. BACKGROUND

¶ 100. The majority opinion fully sets out the facts that underlie the dispute before us. Therefore, I will not repeat them.

II. DISCUSSION

A. Standard of Review

¶ 101. Challenges to jury instructions present questions of law for our independent review. State v. Beamon, 2013 WI 47, ¶ 18, 347 Wis. 2d 559, 830 *776N.W.2d 681. Whether an erroneously given instruction is harmless error also presents a question of law that we review independently. State v. Nelson, 2014 WI 70, ¶ 18, 355 Wis. 2d 722, 849 N.W.2d 317.

B. Jury Instructions

¶ 102. The defendant, Cavallino,2 argues that the special skills instruction was erroneous because it directed the jury to consider Cavallino's superior knowledge and skill as a licensed semi-truck driver. According to Cavallino, the circuit court erred because the court gave an instruction regarding superior knowledge and skill similar to that employed in professional negligence cases, rather than the standard negligence instruction that is customarily given in vehicular negligence cases. Cavallino argues that the circuit court's instruction imposed a heightened standard of care on him, and that doing so was prejudicial error entitling him to a new trial.

¶ 103. The plaintiff, Ronald J. Dakter,3 contends that the instruction directed the jury to take superior knowledge and skill of professional semi-truck drivers into account so that the jury could determine whether Cavallino met the standard of ordinary care under the circumstances.

1. General principles for instructions

¶ 104. "The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case." Nommensen v. *777 Am. Cont'l Ins. Co., 2001 WI 112, ¶ 36, 246 Wis. 2d 132, 629 N.W.2d 301. Jury instructions "explain what the law means to persons who usually do not possess law degrees." Id. (internal quotation marks and citation omitted).

¶ 105. "A circuit court has broad discretion when instructing a jury." Id., ¶ 50 (citing White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557 (1989)). A circuit court appropriately exercises its discretion when the instruction correctly states the law and comports with the facts of the case. Weborg v. Jenny, 2012 WI 67, ¶ 42, 341 Wis. 2d 668, 816 N.W.2d 191; White, 149 Wis. 2d at 954—55. However, even if the circuit court erroneously exercises its discretion, an "erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial." Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶ 11, 356 Wis. 2d 1, 850 N.W.2d 160 (quoting Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992)). "An error is prejudicial when it probably misled the jury." Id. In other words, a jury instruction error "is not prejudicial if it appears that the result would not be different had the error not occurred." Id. (quoting Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).

2. Special skills instruction

¶ 106. There are professions and trades for which special skills are necessary to performance of the profession or trade. See Racine Cnty. v. Oracular Milwaukee, Inc., 2009 WI App 58, ¶ 28, 317 Wis. 2d 790, 767 N.W.2d 280 (parsing whether computer software installers were subject to a higher professional standard of care based on special skills). When those special skills are required but not competently performed, the "[professionals may be sued for malprac*778tice because [oí] the higher standards for care imposed on them by their profession." Id. (internal quotation marks and citation omitted). Further, when a higher standard of care is imposed on members of a profession or trade, expert witness testimony generally is required to prove that those standards were not met. Id., ¶ 34.

3. Instructions given

¶ 107. The circuit court gave a special skills instruction based on Cavallino being licensed as a semi-truck driver. That instruction stated in pertinent part:4

At the time of the accident, the defendant, Dale Cavallino, was a professional truck driver, operating a semi tractor trailer pursuant to a Commercial Driver's License issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was Dale Cavallino's duty to use the degree of care, skill and judgment which reasonable semi truck drivers would exercise in the same or similar circumstances, having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding Commercial Driver's Licenses. A semi truck driver who fails to conform to this standard is negligent.

¶ 108. Immediately prior to the semi-truck driver instruction, the jury received instruction on the standard of ordinary care:5

A person is negligent when he fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. *779A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

¶ 109. In regard to these two instructions, the court of appeals melded them together and explained how it concluded that Cavallino's superior knowledge and skill fit into the standard of ordinary care:

Putting together the general standard of care with its application to the circumstances in which an actor possesses pertinent superior knowledge or skills: (1) all have a duty to use ordinary care to avoid acts that a reasonable person would recognize create unreasonable risks of injury or damage to others or property, and (2) a "reasonable person will act in the light of (a) knowledge shared by the community generally and also (b) information, knowledge and skill that he himself has that is not generally known and that reasonable people would not ordinarily have." Dan B. Dobbs et al., The Law of Torts § 132 (2d ed. 2014).

Dakter v. Cavallino, 2014 WI App 112, ¶ 40, 358 Wis. 2d 434, 856 N.W.2d 523.

¶ 110. The parties agree that it would have been improper for the circuit court to have instructed the jury that Cavallino is held to a higher standard of care than other drivers on the highway because he was a professional semi-truck driver.6 Dakter acknowledges that the standard of care for all drivers is ordinary care.

*780¶ 111. However, the wording of the special skills instruction for semi-truck drivers implies that there is a semi-truck driver standard of care and that Cavallino was obligated to conform his conduct to that standard of care, which differs from ordinary-care. That implication permitted the jury to hold Cavallino to a different standard of care than the standard of care that the jury applied to Dakter.

¶ 112. Specifically, the instruction directed that it was Cavallino's "duty to use the degree of care, skill and judgment which reasonable semi truck drivers would exercise in the same or similar circumstances." This is an incorrect statement of the law. It establishes a semi-truck driver standard of care that required Cavallino to use skills in addition to those required of Dakter while both were using a public highway. Accordingly, the circuit court erred by giving the jury the special skills instruction that was focused on the skills required of a commercial driver of a semi-truck.

¶ 113. I also conclude that the circuit court erroneously exercised its discretion in giving the special skills instruction because the application of the superior knowledge and skills doctrine is limited to persons taking actions in a venue where special skills are required by that venue. For example, when one takes action in a venue where special skills are required, e.g., physicians, lawyers, pharmacists and dentists, the circumstances that underlie the standard of ordinary care take into account the similarity of experience among those who work in the exclusive venue where the particularized superior knowledge and skills are required. Stated otherwise, in cases where special skills are relevant, the duty is defined by standards applicable to the particular profession of the alleged *781tortfeasor. Zastrow v. Journal Commc'ns, Inc., 2005 WI App 178, ¶ 25, 286 Wis. 2d 416, 703 N.W.2d 673.

¶ 114. In contrast to those who work in exclusive venues that require special skills in order to work in that venue, professional and lay vehicle operators employ the same venue, i.e., they share the same roadways. In addition, a driver with a license permitting him or her to drive a semi-truck54 could also drive a large truck, a pickup truck or a car. A driver with a commercial license could be a professional semi-truck driver, or he or she may drive a semi-truck only rarely. Alternatively, a driver holding a class D (regular) driver's license55 may operate any number of large and cumbersome vehicles, including large moving trucks or trucks with large trailers. Because all of these vehicle operators act in the same venue, i.e., the shared roadway, they are subject to the same ordinary care. Ordinary care is that care exercised by a reasonable person under the circumstances. See Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶¶ 30-32, 291 Wis. 2d 283, 717 N.W.2d 17. The circumstances of ordinary care are not modified according to the type of vehicle operator, but rather, uniformly reflect the nature of the shared venue, a public roadway. See State Dep't of Transp. v. Robbins, 246 P.3d 864, 867 (Wyo. 2011) (citing Cervelli v. Graves, 661 P.2d 1032, 1038-39 (Wyo. 1983) (affirming the trial court's refusal to give a jury instruction that set an individualized standard of care for a semi-truck driver and reasoning that to do so would be to convert an ordinary negligence case into a semi-truck driver's malpractice action)).

*782¶ 115. Even though I conclude that the circuit court erred in giving the semi-truck driver negligence instruction, the instruction was not prejudicial and therefore was harmless. As the court of appeals noted, the erroneous instructions may have subjected Cavallino to a higher standard of care than that to which he would have been held if he lacked superior knowledge or skills. Dakter, 358 Wis. 2d 434, ¶ 47. However, I also agree that jurors likely focused on the evidence presented at trial. Id. Therefore, if jurors were presented with accurate statements of the standard of ordinary care, they would have been as likely to reach the same conclusion.

¶ 116. Furthermore, "lj]ury instructions are evaluated in their entirety, not in isolation." Weborg, 341 Wis. 2d 668, ¶ 74. The erroneous semi-truck driver instruction was surrounded by correct instructions that repeatedly reminded the jury of the standard of ordinary care.

¶ 117. In addition, the jury's apportionment of negligence is substantially supported by the facts and does not indicate prejudice. Trial testimony supports the jury's verdict. For example, under hypothetical facts matching Dakter's testimony regarding the accident that gives rise to this case, Cavallino's own expert stated that if the hypothetical facts were true, the driving was "reckless" and Cavallino's own employer stated that such driving would be "unsafe." These facts in combination with the multiple instructions on ordinary care cause me to conclude that there is no reasonable probability that the circuit court's error in giving the semi-truck driver instruction contributed to the outcome of the trial. Accordingly, the jury instruction error was not prejudicial because the jury's verdict *783likely would have been the same had the error in instructions not occurred. See Kochanski, 356 Wis. 2d 1, ¶ 11.

III. CONCLUSION

¶ 118. I conclude that the circuit court's special skills instruction was erroneous because it incorrectly stated the law. However, I also conclude that the error was harmless. Accordingly, I would affirm the court of appeals, and although I do not join the majority opinion, I respectfully concur.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 119. (concurring). I join the majority opinion's conclusion that the semi-truck driver jury instruction at issue was not erroneous under the facts of this case. I also join Chief Justice Roggensack's conclusion that, if this jury instruction were erroneous, the error was harmless. I write separately to clarify two points.

f 120. First, I write to clarify that the semi-truck driver jury instruction at issue was proper because the defendant was driving a semi-truck at the time of the accident. See majority op., ¶ 96 ("In the instant case, the circumstances relevant to a determination of whether the defendant acted reasonably include the fact that at the time of the collision, the defendant was engaged in a profession or trade (semi-trailer truck driving) and possessed the special knowledge and skill required of semi- trailer truck drivers." (emphasis added)). Had the defendant been driving a passenger automobile rather than a semi-truck at the time of the accident, the semi-truck driver jury instruction would have been erroneous, notwithstanding the fact that the defendant is a professional semi-truck driver.

*784¶ 121. Second, I write to clarify that certain treatises that the majority opinion cites are overly broad and do not dictate the law in Wisconsin. See, e.g., majority op., ¶ 48 (" [I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it." (quoting W. Page Keeton et al., Prosser and Keaton on Torts § 32, at 185 (5th ed. 2000))); id. ("In addition to the knowledge that may be imputed to a reasonable person, a person's actual knowledge and skills may be taken into account when the level of the person's knowledge or skills exceeds the average." (quoting 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21 (2d ed. 1990))); id., ¶ 43 n.16 ("The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances." (quoting Restatement (Second) of Torts § 289 cmt. m. (1965))). These passages should not be improperly construed as an expansion of Wisconsin law. See majority op., ¶ 49 ("These texts neither bind this court nor declare the law of Wisconsin."). Instead, I write to clarify that the majority opinion cites these treatises for the sole and limited purpose that, under the facts of this case, the semi-truck driver jury instruction was proper because the defendant was driving a semi-truck at the time of the accident. The majority opinion expressly recognizes that these broad treatise passages do not "declare the law of Wisconsin." Majority op., ¶ 49.

*785¶ 122. For the foregoing reasons, I respectfully concur.

¶ 123. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this concurrence.

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.

Lehman, J.

The plaintiff employed the defendant to give chiropractic treatment to her for a disease or physical condition. The defendant had no license to practice medicine, yet he held himself out as being able to diagnose and treat disease, and under the provisions of the Public Health Law (Cons. Laws, ch. 45) he was guilty of a misdemeanor. The plaintiff became paralyzed after she had received nine treatments by the defendant. She claims, and upon this appeal we must assume, that the paralysis was caused by the treatment she received. She has recovered judgment in the sum of $10,000 for the damages caused by said injury.

The plaintiff in her complaint alleges that the injuries were caused by the defendant’s negligence. If negligence on the part of the defendant caused the injury, the plaintiff may recover the consequent damages. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, he claimed to possess the skill requisite for diagnosis and treatment of disease, and in the performance of what he undertook to do he may be held to the degree of skill and care which he claimed to possess. At the trial the plaintiff gave testimony in regard to the manner in which she was treated. She supplemented this testimony by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result. Though her testimony was contradicted, the jury might well have resolved the conflict in her favor, and if the only question submitted to the jury had been whether or not this evidence showed that *179plaintiff’s injury was caused by the defendant’s negligence, the defendant could not complain of any substantial error at the trial. Indeed, it would seem that in some respects the rulings of the trial judge may have been too favorable to the defendant.

At the close of the plaintiff’s case the plaintiff was permitted to amend the complaint to allege “that in so treating the plaintiff the defendant was engaged in the practice of medicine contrary to and in violation of the provisions of the Public Health Law of the State of New York in such case made and provided, he at the time of so treating plaintiff not being a duly licensed physician or surgeon of the State of New York.” Thereafter the trial judge charged the jury that they might bring in a verdict in favor of the plaintiff if they found that the evidence established that the treatment given to the plaintiff was not in accordance with the standards of skill and care which prevail among those treating disease. He then continued: “This is a little different from the ordinary malpractice case, and I am going to allow you, if you think proper under the evidence in the case, to predicate negligence upon another theory. The public health laws of this State prescribe that no person shall practice medicine unless he is licensed so to do by the Board of Regents of this State and registered pursuant to statute. This statute to which I have referred is a general police regulation. Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff and to adjust the vertebrae in her spine when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent.” In so charging the jury that from the violation of the statute *180the jury might infer negligence which produced injury to the plaintiff, the trial justice in my opinion erred.

The provisions of the Public Health Law prohibiting the practice of medicine without a license granted upon proof of preliminary training and after examination intended to show adequate knowledge, are of course intended for the protection of the general public against injury which unskilled and unlearned practitioners might cause. If violation of the statute by the defendant was the proximate cause of the plaintiff’s injury, then the plaintiff may recover upon proof of violation; if violation of the statute has no direct bearing on the injury, proof of the violation becomes irrelevant. For injury caused by neglect of duty imposed by the penal law there is civil remedy; but of course the injury must follow from the neglect.

Proper formulation of general standards of preliminary education and proper examination of the particular applicant should serve to raise the standards of skill and care generally possessed by members of the profession in this State; but the license to practice medicine confers no additional skill upon the practitioner; nor does it confer immunity from physical injury upon a patient if the practitioner fails to exercise care. Here, injury may have been caused by lack of skill or care; it would not have been obviated if the defendant had possessed a license yet failed to exercise the skill and care required of one practicing medicine. True, if the defendant had not practiced medicine in this State, he could not have injured the plaintiff, but the protection which the statute was intended to provide was against risk of injury by the unskilled or careless practitioner, and unless the plaintiff’s injury was caused by carelessness or lack of skill, the defendant’s failure to obtain a license was not connected with the injury. The plaintiff’s cause of action is for negligence or malpractice. The defendant undertook to treat the plaintiff for a physical condition which seemed to require *181remedy. Under our law such treatment may be given only by a duly qualified practitioner who has obtained a license.

The defendant in offering to treat the plaintiff held himself out as qualified to give treatment. He must meet the professional standards of skill and care prevailing among those who do offer treatment lawfully. If injury follows through failure to meet those standards, the plaintiff may recover. The provisions of the Public Health Law may result in the exclusion from practice of some who are unqualified. Even a skilled and learned practitioner who is not licensed commits an offense against the State; but against such practitioners the statute was not intended to protect, for no protection was needed, and neglect to obtain a license results in no injury to the patient and, therefore, no private wrong. The purpose of the statute is to protect the public against unfounded assumption of skill by one who undertakes to prescribe or treat for disease. In order to show that the plaintiff has been injured by defendant’s breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury. No case has been cited where neglect of a statutory duty has given rise to private cause of action where it has not appeared that private injury has been caused by danger against which the statute was intended to afford protection, and which obedience to the statute would have obviated. It is said that in the case of Karpeles v. Heine (227 N. Y. 74) this court held that liability per se arises from breach of the statute which prohibits employment of a child under sixteen years of age, but in that case this court merely decided that the statute was intended to protect the child against danger arising from its own lack of *182foresight in the course of such employment, and that, therefore, an action against the employer by a child unlawfully employed “for injuries arising in the course of such employment and as the proximate result thereof cannot be defeated by his contributory negligence.” In that case the court was considering the legal effect of the proven negligence of the child who was unlawfully employed; only upon proof in the present case of negligence on the part of the chiropractor would any analogy be apparent.

It is said that the trial justice did not charge that plaintiff might recover for defendant’s failure to obtain a license but only that failure to obtain a license might be considered “some evidence” of defendant’s negligence. Argument is made that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care. That can be true only if logical inference may be drawn from, defendant’s failure to obtain or perhaps seek a license that he not only lacks the skill and learning which would enable him to diagnose and treat disease generally, but also that he lacks even the skill and learning necessary for the physical manipulation he gave to this plaintiff. Evidence, of defendant’s training, learning and skill and the method he used in giving the treatment was produced at the trial and upon such evidence the jury could base finding either of care or negligence, but the absence of a license does not seem to strengthen inference that might be drawn from such evidence, and a fortiori would not alone be a basis for such inference. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence.

Our decision in the case of People v. Meyer (239 N. Y. 608) is not in conflict with these views. The defendant there was charged with causing death by “culpable negligence.” Negligence was shown by independent evi*183dence, but the charge of manslaughter could be sustained only if the defendant’s negligence reached beyond the bounds of lack of skill and foresight where civil liability begins to a point where criminal liability is imposed because the negligence is not merely venal but is “culpable,” involving fault for which the State may demand punishment. We held that the circumstance that the defendant practiced medicine without those qualifications which the law demands as a prerequisite to practice was relevant and material upon the question whether the defendant’s proven negligence was venal or culpable. We did not hold that the absence of license tended to prove negligence itself.

For these reasons the judgments should be reversed and a new trial granted, with costs to abide the event.

Crane, J. (dissenting).

The defendant is a chiropractic practitioner in Utica, N. Y. The plaintiff, a woman about forty-six years of age, in March of 1923, was his patient. Through treatment received, the plaintiff claims to have become paralyzed, and has brought this action to recover damages. A judgment in her favor has been unanimously affirmed by the Appellate Division, which, however, granted leave to the defendant to come to this court, certifying that in its opinion a question of law was involved which we should review. At the túne mentioned, Miss Brown had been suffering from laryngitis, and went to the defendant’s, Dr. Shyne’s office for treatment. She went there nine times. It was the last treatment that was injurious.

The theory of the chiropractics is that most, if not all, diseases come from pressure on the nerves caused by vertebra deviating from the normal. The treatment consists in restoring the vertebra which is out of alignment to its proper place to relieve the pressure. This is done by palpitating the spinous processes and pushing or manipulating the vertebrae into place. The chiro*184practic claims to be able to treat and cure many diseases in this way. One of the defendant’s chief experts in this ease stated that the treatment consists entirely of adjusting the vertebrae which are found out of alignment to normal position. In this way, he stated, cancer of the stomach and liver can be cured, tuberculosis, smallpox, diphtheria, scarlet fever, diabetes and heart disease. The chiropractic does not believe in the germ theory of disease.

We readily see, therefore, that the chiroprabtic doctor holds himself out to treat and cure sickness and disease by the readjustment of the spinal column and the proper alignment of the vertebrae.

This was the kind of treatment that the defendant was giving the plaintiff; and the theory accords with the practice, according to the plaintiff’s testimony. She says of the ninth treatment, which was the same as the others, but a little harsher: “I lay down on the couch, face downward, and the support was removed from under my abdomen, and he began working on the spine, and from the neck, way down to the waist and back again. He pressed very hard, so that it made me flinch, especially up through the shoulders. One spot was hurt especially bad. It seemed as if it was his thumbs that he was pressing down hard, and that it hurt, it made me flinch. And then he took a hold of my head, both sides of my head, and gave it a very violent turn, twist one way and then back, which gave a very bad snap, more noticeable than any of the other treatments. And it hurt.”

“Q. Where was the pain located that you experienced? A. Right from the base of the neck or head, down, midway down the back.”

“Q. Had you ever experienced any pain up to that time, in your spinal column before? A. No, sir.”

The plaintiff left the doctor’s office, returned to her home, and immediately thereafter her arms and limbs became numb and powerless; she was confined to her bed for a period of fifteen weeks, under the care of nurses; *185was obliged to wear a brace, and has been partially paralyzed ever since.

The Public Health Law (sect. 161) enacts:

“No person shall practice medicine, unless licensed by the regents and registered as required by this article.”

The practice of medicine is defined by section 160 as follows:

“A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.”

By section 174 any person who, not being then lawfully authorized to practice medicine within this State, and so registered, according to law, shall practice medicine in violation of the article, shall be guilty of a misdemeanor.

The defendant was violating this law. He was practicing medicine in this State without a license. He was guilty of a misdemeanor. (People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Meyer, 209 App. Div. 908, affd., 239 N. Y. 608.)

The plaintiff’s complaint, as amended on the trial, alleged the negligence of the defendant, and his violation of the Public Health Law. The defendant upon the trial and his witnesses testified that his treatment of vertebrae alignment was according to the established practice and methods of chiropractors, and that by such treatment it was impossible to cause the plaintiff’s injuries. There was some evidence to show that the defendant may have been unusually severe and harsh.

The charge of the court to the jury treated the case as one in negligence, and stated the law as applicable to duly licensed physicians, that is, that they were bound to *186exercise that degree of care and skill generally possessed by members of the profession in the locality where the doctor practiced. The defendant’s negligence, he stated, would consist in failing to meet this standard. He further stated to the jury the above requirements óf the Public Health Law, and charged: “Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff, and to adjust the vertebrae in her spine, when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent.”

This is the part of the charge which‘is now challenged as being error, requiring a reversal of the judgment. The point is presented that the violation of the Public Health Law by the defendant, and his practicing medicine without a license, had nothing to do with this case; was not competent evidence; and should not have been considered by the jury as some evidence of negligence. With this view I do not agree.

The judge fully and completely charged the jury that the defendant was not liable for any of the plaintiff’s injuries unless they were the direct and proximate cause of his acts. The evidence was abundant to prove that the plaintiff’s paralysis and injuries resulted from the defendant’s manipulation and treatment of her back, neck and head. The jury were justified in finding that whatever he did, whether it were proper or improper, resulted in the plaintiff’s painful condition. We start, therefore, the consideration of this point with the fact that the defendant’s acts were the direct and proximate cause of the injury. The next question arises as to whether or not the acts were negligent.

*187As I have stated, the judge charged the jury as if this were the ordinary malpractice case, furnishing for the defendant a standard of the legally authorized physician. It is difficult for me personally to follow this reasoning and the logic of the situation. I think this rule all too liberal to the defendant. What he did was prohibited by law. He could not practice medicine without violating the law. The law did not recognize him as a physician. How can the courts treat him as such? Provided his act, in violation of the law, is the direct and proximate cause of injury, in my judgment he is liable, irrespective of negligence. It seems somewhat strange that the courts, one branch of the law, can hold up for such a man the standards of the licensed physician, while the Legislature, another branch of the law, declares that he cannot practice at all as a physician. The courts thus afford the protection which the Legislature denies.

The judge in this case, however, did not go this far. He charged for the defendant’s benefit the ordinary rules of negligence in malpractice cases, and then stated that the violation of the Public Health Law was some evidence of negligence, leaving the whole question to the jury. It is this much milder form of ruling which is challenged. The defendant must be treated, so the appellant claims, as if he were a duly licensed physician, and in this action for damages, resulting from his act, he is only liable if a duly licensed physician would have been hable. Such is the effect of excluding evidence of the defendant’s practicing medicine without a license. If it were competent to prove that he were practicing medicine without a license, the corollary must be true, that such evidence may be considered by the jury as bearing upon the question of his negligence.

What is the rule which is to guide us in determining whether a violation of a statute or ordinance is evidence of negligence? It is no answer to say that the statute *188provides a penalty, and, therefore, no other consequences can follow. Such is not the law. We are to determine it, as I read the authorities, from the purpose and object of the law, and also from the fact whether a violation of the law may be the direct and proximate cause of an injury to an individual. As was said in Bourne v. Whitman (209 Mass. 155, 166): “It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty.”

The prohibition against practicing medicine without a license was for the very purpose of protecting the public from just what happened in this case. The violation of this statute has been the direct and proximate cause of the injury. The courts will not determine in face of this statute whether a faith healer, a patent medicine man, a chiropractor, or any other class of practitioner acted according to the standards of his own school, or according to the standards of a duly licensed physician. The law, to insure against ignorance and carelessness, has laid down a rule to be followed, namely, examinations to test qualifications, and a license to practice. If a man, in violation of this statute, takes his chances in trying to cure disease, and his acts result directly in injury, he should not complain if the law, in a suit for damages, says that *189his violation of the statute is some evidence of his incapacity.

At this point the appellant cites those cases dealing with the failure of chauffeurs to have a license. The principal case is Clark v. Doolittle (205 App. Div. 697). There are a number of other cases upon his brief, all of which I have examined. It was the claim in these cases that the failure to have a license to run a car absolutely prevented all recovery by the driver for injuries received, although the lack of the license had nothing whatever to do with the defendant’s negligence. It is self-evident that the violation of a statute must have something to do with the case; that it must in some way bear upon proximate cause. Even in the Doolittle case it was said: “The fact that the driver was at the time engaged in a violation of some law may have had an important bearing upon plaintiff’s right to recover. It may be evidence against him and if the fault lay in such violation may prevent recovery.” All the case decided was that such violation was not an absolute bar.

But to proceed with the main discussion. The Public Health Law was intended to guard individual members of the public from the injuries which might result from resorting to unexamined practitioners. The violation of the law in this case has brought about the very thing which the Legislature has tried to prevent. In Dent v. West Virginia (129 U. S. 114, 122) the United States Supreme Court said regarding these Public Health Laws:

“Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readify the presence of disease, and prescribe *190appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified.”

These words seem quite appropriate to our present Public Health Law. The defendant held himself out as a doctor, able to cure laryngitis. He had an office where his name appeared, as though he were a duly licensed physician. The plaintiff could not tell whether or not the doctor was licensed according to the Health Law; she was not obliged to look up the records before going to him; nor was she expected to understand all the requirements of the Regents. She was one of that public which the law sought to protect by declaring that the so-called doctor was forbidden to do the very thing he did do, and which resulted in injury. Proximate cause in connection with the violation of a city ordinance was before the court in Monroe v. Hartford Street Ry. Co. (76 Conn. 201). The court said: “It is apparent that the illegal act was not necessarily a mere independent concomitant or condition of the collision, but might well be a contributing cause, and might be, according as the jury should find the attendant or surrounding circumstances, a proximate cause of the injury. ‘Cause’ and ‘consequence’ are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result.”

In recent times the difficulty with these statutes in the courts has been to determine whether the violation *191was negligence per se, or only some evidence of negligence. I have not been able to find any case where the violation of a statute or an ordinance was not at least some evidence of negligence, where the violation was the direct and proximate cause of the injury, that is, that the act done resulting in injury, was prohibited, and the aim and purpose of the statute or ordinance was to prevent such injuries by such prohibition. In Willy v. Mulledy (78 N. Y. 310) the charter of the city of Brooklyn imposed a duty upon the owners of tenement houses to have fire escapes thereon. It was said that where a statute imposes a duty upon a citizen, any person having a special interest in the performance thereof may sue for a breach causing him injury. In Massoth v. Delaware & Hudson Canal Co. (64 N. Y. 524) the violation of a city ordinance regulating the speed of trains through the city was taken as some evidence of negligence.

A statute of Colorado required the operators of coal mines to fence the ground around their slack coal so as to prevent loose cattle or horses from having access to such slack pile. A child strayed on an unfenced slack pile, and the owner was held liable. (Union Pacific Railway Co. v. McDonald, 152 U. S. 262.) The court said: “Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. ‘ The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. The nonperformance by the railroad company of the duty imposed by statute, of putting a fence around its slack pit, was a breach of its duty to the public, and, therefore, evidence of negligence, for which it was liable in this case, if the injuries in question were, in a substantial sense, the result of such violation of duty.

*192The same thing holds true here. The defendant was under an obligation, a command, a duty, not to practice medicine. By failing to heed this command and duty plaintiff received injury. The statute and his breach is at least some evidence of negligence. To the same effect we have Fluker v. Ziegele Brewing Co. (201 N. Y. 40); McRickard v. Flint (114 N. Y. 222).

In his dissenting opinion in Marino v. Lehmaier (173 N. Y. 530, 540) Judge O’Brien mentions a number of violations of statutes and ordinances which would not be considered evidence of negligence in the particular case for the reason that the violation of such ordinance or statute, did not constitute the proximate cause of the accident, that is, was in no way the cause of it. Quoting from Thompson on Negligence, he gives the rule to be applied, as follows: “And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages and often not then, the question depending upon judicial theories and surmises.” The Public Health Law was designed to prevent such injuries as were suffered by the plaintiff in this case, through the illegal practice of medicine. Judge O’Brien cites the instances of taking fish out of season, of smuggling, as not preventing a recovery for injury inflicted upon the violator. Within this category may be placed the instance of a person injured through negligence while violating the Sunday Law. (Platz v. City of Cohoes, 89 N. Y. 219.) Likewise, the failure to register an automobile was in no way the cause of an accident, and did not prevent recovery for another’s negligence. (Hyde v. McCreery, 145 App. Div. 729.)

We now come to three cases holding that the violation of statutes created negligence per se. Amberg v. Kinley *193(214 N. Y. 531) related to the Labor Law (Cons. Laws, ch. 31), which required fire-escapes on factory buildings. The action was for death caused in a fire, where the factory had no such fire-escapes. This court said: “In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ‘ must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed.’ ”

In my judgment there can be no doubt as to the intent of the Legislature in passing the Public Health Law as herein stated by me. It was to prevent injury to people from ignorant and incompetent practitioners, unqualified men. No one can practice unless examined and licensed. That the danger was one to be guarded against; that such legislation was necessary, is apparent in this case.

Karpeles v. Heine (227 N. Y. 74) also related to the Labor Law, which provided that no child under sixteen years should operate a freight or passenger elevator. Here was a prohibition disqualifying certain persons from doing an act, in the same way that the Public Health Law disqualifies unlicensed persons from practicing medicine. This court held the case one of liability per se, following Amberg v. Kinley (supra).

Martin v. Herzog (228 N. Y. 164) related to the Highway Law (Cons. Laws, ch. 25) requiring lights on wagons after sundown. We held that the unexcused omission of the statutory signals was more than some evidence of negligence; it was negligence itself.

*194In view of these authorities, I am convinced that the plaintiff in this case was a part of that public for whose benefit the Public Health Law in this particular was passed. It was to prevent injury to such as she that the Legislature forbade the unlicensed practice of medicine. The plaintiff was injured through the defendant’s disobedience of the law. He was treating her for laryngitis by pushing her vertebra. In pushing her vertebra and twisting her head, that is, by doing the very thing the law said he must not do, he caused paralysis. Thus by these authorities, the plaintiff could prove in connection with his acts that he was practicing medicine without a license, and such violation was, to say the least, some evidence of negligence. This is as far as the trial judge went in charging the jury. Personally, I am of the opinion that where an injury is the direct and proximate result of practicing medicine without a license, a recovery can be had, as for an act negligent per se; but we do not need to go so far in this case.

Could the defendant in this case have sued the plaintiff for his services, and recovered? Clearly he could not have maintained such an action. (Steed v. Henley, 1 Carr. & P. 574; Allison v. Haydon, 4 Bing. [C. P.] 619; Accetta v. Zupa, 54 App. Div. 33, 35.) “We cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor.”

We have recently had a case in this court where these principles have been applied (People v. Meyer, 209 App. Div. 908; affd., 239 N. Y. 608). The defendant was there prosecuted for manslaughter, in causing the death of a child about five years of age, through his culpable neglect. The defendant was a chiropractor, and he sought to treat the child for diphtheria. The treatment was the same as given Miss Brown in this case — that is, by the manipulation of the spinal cord. The child died. The defendant was not a licensed physician.

If the defendant was to be measured simply by the *195standard of licensed physicians, or of his own school, the Public Health Law had nothing to do with the case. Negligence is negligence (the same in civil as in criminal proceedings), and culpable negligence is merely accentuated negligence. The defendant’s negligence had to be proved. The prosecution did not rest with merely showing that the defendant was neglectful from the licensed physician’s standpoint. The People proved his acts and omissions, and also the fact that the Public Health Law had been violated, that is, that the defendant was illegally practicing medicine. The judge made this an important part of his charge, for he read to the jury section 160 of the Public Health Law, and said: “I charge you, gentlemen, that the practice of chiropractic is practicing medicine under this law as I have read it to you.” He then read section 161 of the Public Health Law, and continued as follows: “Now, gentlemen, the charge in this case is not that the defendant violated the provisions of this law I want that clearly in your minds. It is not brought on that theory. The defendant is not brought into court and is not on trial now for practicing in violation of this statute, for which another penalty is prescribed. That is an entirely separate and distinct offence. The charge in this case is culpable negligence, under the law as I have read it to you; and in connection with that and in reaching your conclusions and coming to your decision you may consider this law that I have just read to you. So, as I have charged you, if the act is in violation of a statute intended and designed to prevent injury to the person and is in itself dangerous — that is, the act itself — and is liable to result in death by reason of omission or commission, and death ensues, then the person may be guilty of culpable negligence.”

We affirmed the conviction in that case. The jury were authorized to consider the violation of the statute as bearing upon the question of negligence. In this case we also have the question of negligence, and as bearing *196upon it the judge permitted the jury to consider together with all the other facts the practice of medicine without a license.

The ruling was correct, and the judgments below should be affirmed, with costs.

Hiscock, Ch. J., Pound and Andrews, JJ., concur with Lehman, J.; Crane, J., writes dissenting opinion, in which McLaughlin, J., concurs; Cardozo, J., absent. Judgments reversed, etc.

*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.

BOYCE F. MARTIN, Jr., Circuit Judge.

Bache, Halsey Stuart Shields, Inc. (Bache) appeals a judgment in favor of Phyllis Thropp for breaches of fiduciary duty and contract, and conversion. Jurisdiction is based on diversity of citizenship and is uncontested. The principal issues on appeal are: 1) whether the District Court erred as a matter of law in concluding that Bache negligently mismanaged Mrs. Thropp’s securities account; and 2) whether her claims are barred by laches. Upon review, we uphold the District Court’s findings that Bache is liable to Mrs. Thropp for its negligence and that her claims are not barred by laches.

In this appeal, Bache contests virtually every finding of fact made by the District Court. In so doing, it invites us to reinterpret the evidence in a manner more favorable to Bache. However, the scope of our review is limited by the “clearly erroneous” standard of Rule 52(a), Federal Rules of Civil Procedure. With this stricture in mind, we have reviewed the entire record, and we conclude that none of the facts found by the District Court are clearly erroneous. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). In the course of the trial, conflicts between Mrs. Thropp’s testimony and that of Bache’s witnesses inevitably raised questions of credibility. However, the District Court’s resolution of those questions in Mrs. Thropp’s favor was a proper exercise of its discretion.

The pertinent findings of the District Court follow. On June 21, 1971, Mrs. Thropp opened a margin trading account with Bache, placing in its care securities worth approximately $40,000.00. Mrs. Thropp’s husband Jack encouraged her to open the account through his friend Richard Gregory, a broker in Bache’s Columbus, Ohio office.

Mrs. Thropp is not a sophisticated investor. Although she has owned securities for *819many years, she has always relied on the investment acumen of her father and other advisors. She expected Gregory to manage her account and make investment decisions on her behalf.

Mrs. Thropp opened the Bache account in her name alone, although her husband was present at her initial meeting with Gregory. She did not indicate to Gregory that he was authorized to discuss the account with Mr. Thropp, nor did she mention giving Mr. Thropp a power of attorney over the account. Subsequently, however, Jack Thropp forged his wife’s signature on a completely blank power of attorney form, which he then either mailed or delivered to Gregory.

Between September 21, 1971 and April 21, 1972, Jack Thropp ordered Gregory to sell his wife’s stock for cash, in a series of transactions which eventually depleted the margin account. During this seven-month period, Mr. Thropp ordered Bache to issue seven checks in his wife’s name, which he picked up at Bache’s operations section. He then forged his wife’s endorsement, cashed the checks, and spent the money.

Bache’s internal operating rules require brokers to keep a “booksheet” for each customer account. This document contains the name of the account owner and a record of account transactions. A separate book-sheet, bearing on its face the notation “Not a Client,” must be kept for any person holding a power of attorney over another’s account. Gregory failed to keep a separate booksheet with a proper notation for Thropp’s power of attorney until September, 1972, when he asked Thropp to “update” his power of attorney. All seven checks that depleted Mrs. Thropp’s account were drawn and cashed before September, 1972, on the strength of the invalid power of attorney. Gregory also failed to process the power of attorney form according to standard Bache procedures which required him to transmit a copy of the notarized form to the New York office.

Mrs. Thropp and her husband often saw Gregory socially. She frequently questioned him about her account, wanting to know “how it was doing.” Gregory always gave vague, general answers about the condition of the stock market. He never mentioned the numerous sales for cash.

Mrs. Thropp inadvertently discovered her husband’s forgeries in December, 1972, when she found a letter from Bache addressed to Jack Thropp. She opened it and found inside a blank form which apparently required Mr. Thropp’s signature. She called Gregory at once to ask why Bache had sent correspondence to her husband, and why her account balance seemed low. Gregory refused to discuss the matter and told her to talk to Mr. Thropp.

When Mrs. Thropp confronted her husband, he “confessed” that he had stolen nearly $40,000.00 from her account and had used the money to pay his gambling debts. He also told her that he held a power of attorney over her account, and assured her that Gregory had not been involved in depleting her account.

Mrs. Thropp was seven months pregnant at the time she discovered her husband’s forgeries. She apparently accepted his explanation of the matter because she hoped to save their failing marriage. In 1975, however, she filed for divorce and raised the issue of the stolen securities. During discovery in the divorce proceedings, Mrs. Thropp first learned that Bache may have mishandled her account when she took Gregory’s deposition. In December, 1975, she filed this suit against Bache.

I. Standard of Care

Under Ohio law, a stockbroker is an agent or bailee. Southern Ohio Bank v. Merrill Lynch Pierce Fenner & Smith, Inc., 479 F.2d 478 (6th Cir. 1973). Both parties here have agreed that Bache was a fiduciary concerning matters within the scope of its agency relationship with Mrs. Thropp. As a fiduciary, a broker stands in a special relationship to a client and owes him a duty to use reasonable care and to act in good faith. Garl v. Nihuta, 50 Ohio.App.2d 142 (1975). See also Henricksen v. Henricksen, 640 F.2d 880 (7th Cir. 1981). Similarly, an agent is subject to a duty not to act in his *820principal’s affairs “except in accordance with the principal’s manifestation of assent.” Falls Lumber Co. v. Heman, 114 Ohio.App. 262, 181 N.E.2d 713 (1961), quoting 2 Restatement (Second) of Agency § 383 (1957).

An agent’s negligence may give rise to a breach of fiduciary duty. Inherent in every agency relationship is the agent’s obligation to use the skills and diligence necessary to protect the client’s interest. The District Court recognized Bache’s duty to exercise due care, noting that “every agent must possess a competent degree of skill to enable him to perform the duties he assumes, and if he undertakes such duties without the requisite skill, or is guilty of negligence whereby money of his principal is lost, he is liable in damages,” quoting 3 Ohio Jur.3d Agency § 104 at 161-162.

We reject Bache’s argument that the District Court erred as a matter of law in concluding that Bache was negligent in handling Mrs. Thropp’s security account. Bache challenges the District Court’s reliance on Bache’s internal rules, codified in its Standard Practice Instruction manual, (“Spi”) ^ evidence of the proper standard of care. Bache also suggests that Mrs. Thropp failed to prove that Bache deviated from any minimum standard of conduct.

This argument fails for two reasons. First, although evidence of custom or professional practice does not automatically establish a standard of care, a court may consider such evidence in determining the proper standard. Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973); Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d 116, 224 N.E.2d 131 (1967). These cases state the Ohio rule that conformity to custom is not conclusive on the question of negligence. The instant case involves evidence of violations of custom and internal rules. When a defendant has disregarded rules that it has established to govern the conduct of its own employees, evidence of those rules may be used against the defendant to establish the correct standard of care. The content of such rules may also indicate knowledge of the risks involved and the precautions that may be necessary to prevent the risks. Montgomery v. Balt. & Ohio R.R., 22 F.2d 359 (6th Cir. 1927). See also Prosser, The Law of Torts § 33 (4th ed. 1971). The District Court correctly measured Bache’s conduct by the standard of prudence it has established for its own employees. See Henricksen v. Henricksen, supra.

Second, ample evidence shows that Gregory fell below the standard of conduct that Bache requires of its brokers. Gregory testified that he did not even know all the requirements of Bache’s rules governing powers of attorney, and admitted that he may have been “remiss” in his failure to ensure that a form was filled out properly for Mrs. Thropp’s account. Mr. Gibson, an assistant manager at Bache, testified that internal supervisory procedures require an account executive to fill out a “New Account Information Sheet” and a Customer Account Card for anyone who holds a power of attorney over a client’s account. Bache could not produce either of these documents for Jack Thropp’s power of attorney. Mr. Gibson also testified that a Bache broker would not be authorized to take directions to trade in an account from one who claimed to hold a power of attorney on the strength of the document forged by Thropp.

This evidence persuades us that Bache was not diligent in enforcing its own rules. A reasonably diligent broker would have ascertained the permissible extent of a husband’s involvement in an account held solely by his wife, and would not have followed orders to liquidate assets on the authority of an incomplete, forged power of attorney. As Mrs. Thropp’s fiduciary, Bache was obligated to scrutinize closely all transactions ordered in her account. See Henricksen v. Henricksen, supra. The fact that Bache may have sent monthly statements to Mrs. Thropp reflecting the challenged transactions ' is irrelevant, despite Bache’s insistence that it had no further obligation to Mrs. Thropp. The challenged transactions themselves were unauthorized, and Bache was negligent in facilitating them without *821a clear manifestation of Mrs. Thropp’s consent.

II. Proximate Cause

We agree with the District Court that Bache’s negligent management of Mrs. Thropp’s account proximately caused her loss. The District Court held that:

While the defendant has argued that the criminal conduct of Thropp was an unforeseeable intervening cause of the plaintiff’s loss, it is clear that, but for the defendant’s negligence, Thropp would have been unable to effect his theft. The negligence of the defendant in this case was a substantial contributing legal cause of the plaintiff’s loss. The plaintiff therefore proved her right to recover the amount of the checks negligently issued and negligently turned over to Jack Thropp. (emphasis added).

Bache argues that Thropp’s forgery was an intervening criminal act that Bache could not have foreseen as a probable consequence of its negligence. We do not agree, nor do we accept Bache’s theory that Thropp’s theft was unforeseeable because of Gregory’s close friendship with the Thropps. This theory begs .the essential question whether Bache owed Mrs. Thropp a duty to protect her assets from unauthorized manipulation. We find no legal basis on which to conclude that either Bache’s rules or a fiduciary’s duty should be relaxed when brokers deal with their friends. See Henricksen v. Henricksen, supra.

As a first step in our proximate cause analysis, we must determine whether Bache’s negligence was an actual cause or a “cause in fact” of Mrs. Thropp’s loss. Overwhelming evidence in the record supports the finding that Gregory’s negligence in fact caused Mrs. Thropp’s loss.

Next, we reject Bache’s contention that Thropp’s forgeries were an efficient intervening cause of the loss sufficient to relieve Bache from liability. Under Ohio law, an intervening cause that will break the chain of causation must be one “not brought into operation by the original wrongful act, but (it must operate) entirely independent(ly) thereof; it must be such a cause as would have produced the result, without the co-operation of the original wrong.” Freeman v. United States, 509 F.2d 626, 633 (6th Cir. 1975) quoting Dougherty v. Hall, 70 Ohio App. 163, 172, 45 N.E.2d 608, 613 (1942). Bache’s mismanagement made possible Thropp’s subsequent wrongful act. The latter was entirely dependent on the former, and the two cooperated to produce Mrs. Thropp’s loss. If Gregory had verified the validity of the power of attorney and ascertained that Mrs. Thropp had approved the challenged transactions, he could not have carried out Mr. Thropp’s instructions to sell the stock for cash and to distribute the proceeds. Thropp’s forgery, therefore, was not an efficient intervening cause. See Neff Lumber Co. v. First National Bank, 122 Ohio St. 302, 171 N.E. 327 (1930); Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929).

The final step in our proximate cause analysis concerns the policy question whether the law will extend responsibility for Bache’s negligent conduct to the consequences that Mrs. Thropp suffered. Prosser suggests the following framework, which we adopt:

Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiff’s injury, there remains the question whether the defendant should be legally responsible for what he has caused. Unlike the fact of causation, with which it is often hopelessly confused, this is essentially a problem of law. It is sometimes said to be a question of whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that this becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether his duty in-*822eludes protection against such consequences. This is not a question of causation, or even a question of fact, but quite far removed from both; and the attempt to deal with it in such terms has led and can lead only to utter confusion, (emphasis added.) The Law of Torts at 244. (4th Ed., 1971).

We hold that Bache owed Mrs. Thropp a duty to protect the assets she had entrusted to its care from unauthorized transactions that could deplete her account. The District Court described Bache’s duty in terms of Mrs. Thropp’s “right to rely on Bache’s not taking instructions from a third party in her account without a duly executed power of attorney on file.” See Gedeon v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924 (1934). This duty flows from the fiduciary and contractual relationship shared by the parties. See Henricksen v. Henricksen, supra. The injury Mrs. Thropp suffered — the dissipation of capital assets entrusted to Bache — is precisely the sort of harm that proper supervision by Bache could and should have prevented. The ostensible purpose of Bache’s supervisory rules is to prevent fraud and to protect its customers, as well as its employees. We conclude that Bache should have foreseen that mismanagement of this sort could lead to the loss Mrs. Thropp sustained. Thus, Bache’s negligence was the legal cause of the injury and Bache is liable to Mrs. Thropp in damages.

III. Ratification, Estoppel and Laches

Before turning to the affirmative defense of laches, we quickly dismiss the argument that Mrs. Thropp ratified the actions of Mr. Thropp and Bache. To establish ratification under Ohio law, one must show action by the principal, taken with full knowledge of the facts, which manifests his intention to adopt the unauthorized transaction. Meyer v. Klensch, 114 Ohio App. 4, 175 N.E.2d 870 (1961). See also Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367 (7th Cir. 1978).

We see no reason to disturb the finding that Mrs. Thropp did not learn of Gregory’s involvement until 1975. Thus, it cannot be said that she ratified Baehe’s actions. Nor can it be said that she ratified her husband’s forgeries. The fact that she remained his wife is not the sort of “action” ratification requires.

Bache’s argument that Mrs. Thropp’s suit is barred by estoppel must also fail, due to her ignorance of essential facts. Furthermore, she never misled Gregory or caused Bache to change its position in reliance on her conduct. Civilian Defense, Inc. v. Ross, 152 N.E.2d 160 (Ohio C. of A., 1958). See also TWM Mfg. Co. v. Dura Co., 592 F.2d 346 (6th Cir. 1979); First Reg. Baptist Church v. Insurance Co. of North America, 444 F.2d 279 (6th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971).

We now turn to the issue of laches. Laches is an equitable doctrine which has been described as a quasi-statute of limitations. Its essence is unreasonable delay in asserting a claim that prejudices the defendant. Laches is unavailable to Bache for two reasons. First, Mrs. Thropp seeks the legal remedy of damages. She charges Bache with breach of fiduciary duty, a cause of action ex delicto which is governed by the statute of limitations. Ohio Rev. Code § 2305.09. See also Hart v. Guardian Trust Co., 52 O.L.A. 225, 75 N.E.2d 570 (1945). The other two counts, breach of contract and conversion, present legal claims as well, and are controlled by the applicable statutes of limitation. Ohio Rev. Code §§ 2305.07, .09.

Second, assuming laches is an available defense to an action at law, Bache has not established a proper case for laches on these facts. In order to prevail, Bache must prove: 1) that Mrs. Thropp had prior knowledge of the act complained of; 2) that she did not assert her legal claim diligently; and 3) that Bache suffered prejudice as a result. Assoc. of Data Proc. Serv. Org., Inc. v. Fed. Home Loan Bank Bd. of Cincinnati, 568 F.2d 478 (6th Cir. 1976). See also Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Weintraub, 613 F.2d 612 (6th Cir. 1979).

*823A determination of laches is normally left to the discretion of the trial court. Burnett v. New York Cent. R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Assoc. of Data Proc. Serv. Org., Inc. v. Fed. Home Loan Bank Bd., supra. It is clear that the District Court did not abuse its discretion in resolving the question of laches in Mrs. Thropp’s favor.

Bache claims, however, that Mrs. Thropp was remiss in failing to discover Gregory’s negligence until she deposed him several years after the challenged transactions. Bache also insists that its monthly statements put her on notice that something was amiss. Although there was conflicting testimony on this issue, the District Court found that she did not receive them because Mr. Thropp concealed the statements from her. Furthermore, in light of evidence that these statements would not necessarily indicate the total value of her holdings, we cannot say that this finding is “clearly erroneous.”

The District Court found that Mrs. Thropp questioned Gregory about her account on several occasions. He always avoided any specific discussion, spoke in vague terms of general market conditions, pleaded ignorance when confronted with Mrs. Thropp’s suspicions, and told her to “talk to” her husband. Thropp, in turn, protected Gregory. The record clearly shows that Gregory helped to perpetuate Mrs. Thropp’s ignorance. Bache cannot claim that her delay was “unreasonable” in light of its own evasion. See United States v. Weintraub, supra.

Finally, Bache asserts that it has been prejudiced because it had a right under Ohio law to require its bank to recredit to its account the amounts paid out over Thropp’s forged endorsements. Ohio Rev. Code Ann. § 1304.29 Baldwin). Bache has irretriveably lost this recourse, since such a claim is barred after three years. Ohio Rev. Code § 1304.24(D).

This argument overlooks the fact that, as a condition precedent to its recourse against the bank, Section 1304.24(D) imposes on Bache a duty to discover and report to the bank within one year any unauthorized alteration of the instrument. Although we do not decide the merits of Bache’s putative claim, we do hold that Bache had notice of the forgeries at the time that Mrs. Thropp called Gregory and that he told her to “talk to her husband.” Since Bache is chargeable with knowledge that Thropp’s withdrawals were unauthorized as early ás December, 1972, it cannot claim prejudice from a timely suit filed within three years of this date. Any prejudice Bache has suffered must be attributed to its own failure to investigate the matter.

We also affirm the District Court’s award of prejudgment interest from the date of each check. Such an award is proper under Ohio law. Ohio Rev. Code § 1343.03.

Accordingly, the judgment of the District Court is affirmed in all respects. Costs on appeal are taxable to appellant.

Chief Justice TOAL.

Willie Mae David (Appellant), the plaintiff in the underlying medical malpractice action, appeals the trial court’s decision granting the respondents’ motions for summary judgment. This case was certified from the court of appeals pursuant to Rule 204(b), SCACR. We withdraw our original opinion in this matter and substitute it with this opinion affirming the trial court’s decision.

Factual/Procedural Background

Appellant underwent surgery after her family doctor found a lesion on Appellant’s lower left lung. Specifically, Appellant underwent a “wedge biopsy,” where a thoracic surgeon extracted a portion of the suspicious tissue and sent the tissue to a pathologist for diagnosis. The pathologist returned a preliminary diagnosis of “probable pulmonary blastema,” a rare form of cancer, which was confirmed by the pathologist’s partner. Based on this diagnosis, the thoracic surgeon decided to remove the lower left portion of Appellant’s lung while Appellant was still anesthetized and unconscious.

A final pathology report, issued three days after the surgery, concluded that the lesion was not cancerous, but rather, a “pulmonary endometrioma;” a rare form of endometriosis, *246which, from a visual inspection, closely resembles pulmonary blastema.1

Appellant filed the underlying action and named the following parties as defendants: (1) the hospital where the surgery took place (McLeod Regional), (2) the thoracic surgeon who performed the surgery (Dr. Brusett), (3) Dr. Brusett’s practice group (Pee Dee Cardiovascular Surgeons), (4) the pathologist who provided the preliminary diagnosis (Dr. Habermeier), and (5) Dr. Habermeier’s practice group (Pee Dee Pathology). Appellant claimed that she suffers from several ailments as a result of the surgery, including chest and back pain, shortness of breath, and anxiety.

Respondents filed separate motions for summary judgment.2 McLeod Regional sought summary judgment on the grounds that any alleged malpractice was performed by independent contractors; therefore, the hospital could not be vicariously liable for Appellant’s alleged injuries. The remaining Respondents sought summary judgment arguing that Appellant had failed to establish the essential elements of her case; specifically, that Appellant had failed to produce expert testimony establishing the applicable standard of care, breach of that standard, and a causal connection between the breach and Appellant’s injuries. The trial court granted the Respondents’ motions for summary judgment in three separate orders. Appellant now raises the following-issues for review:

I. Did the trial court err in granting the respondent physicians’ motions for summary judgment?

II. Did the trial court err in holding that McLeod Regional was not vicariously liable for Appellant’s alleged damages?

*247Law/Analysis

I.. The Respondent Physicians’ Motions for Summary Judgment

Appellant argues that the trial court erred in granting summary judgment in favor of the respondent physicians. We disagree.

When reviewing an order granting summary judgment, the appellate court applies the same standard as the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Fleming, 350 S.C. at 493-94, 567 S.E.2d at 860.

As the trial court recognized, the rules of civil procedure describe what an affidavit must contain in order to establish an issue of fact sufficient to defeat a motion for summary judgment. Rule 56(e), SCRCP provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein.”

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639, 650-51, 602 S.E.2d 760, 766 (2004). Additionally, medical malpractice lawsuits have specific requirements that must be satisfied in order for a genuine factual issue to exist. Specifically, a plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants’ field of medicine under the same or similar circumstances, and (2) that the defendants departed from the recognized and generally accepted standards. Pederson v. Gould, *248288 S.C. 141, 143-44, 341 S.E.2d 633, 634 (1986); Cox v. Lund, 286 S.C. 410, 414, 334 S.E.2d 116, 118 (1985). Also, the plaintiff must show that the defendants’ departure from such generally recognized practices and procedures was the proximate cause of the plaintiffs alleged injuries and damages. Green v. Lilliewood, 272 S.C. 186, 193, 249 S.E.2d 910, 913 (1978). The plaintiff must provide expert testimony to establish both the required standard of care and the defendants’ failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants. Pederson, 288 S.C. at 143, 341 S.E.2d at 634. Therefore, in order to withstand a properly supported motion for summary judgment in a medical malpractice action, any affidavits presented to the court must first comply with the terms of Rule 56, SCRCP, and the evidence as a whole must meet the criteria laid out in Pederson and its progeny.

In the present case, Appellant relies solely on the affidavit of pathologist Dr. Brian Frist to create a genuine issue of material fact as to the commission of malpractice by the respondent physicians.3 The trial court ruled that Dr. Frist’s affidavit failed to establish that he is familiar with the standard of care from which the respondent physicians allegedly deviated. We agree and find that the affidavit is insufficient.

In his affidavit, Dr. Frist’s sole opinion as to Dr. Brusett’s alleged malpractice is that Dr. Brusett failed “to make sure that he communicated to the pathologist his thoughts for treatment, so that the pathologist was aware of the treatment plan of the surgeon.” First, Dr. Frist incorrectly relies on the assumption that the pathologist would have diagnosed Appellant’s tumor differently had Dr. Brusett “com*249municated his thoughts for treatment” before Appellant’s tumor was tested. Stated differently, Dr. Frist’s affidavit fails to explain how Dr. Brusett’s post-diagnosis treatment would have affected the pathologist’s initial diagnosis of the tumor. As a result, there is no evidence that Dr. Brusett’s failure to communicate Appellant’s possible treatment options with the pathologist was the proximate cause of Appellant’s injuries.

The dissent asserts that had the pathologist been aware that Dr. Brusett intended to immediately remove the affected portion of the lung upon a diagnosis of pulmonary blastema, then the pathologist might have qualified or sought to confirm his preliminary diagnosis. The dissent’s argument disregards the necessity that a surgeon be able to rely upon inter-operative diagnoses to determine a patient’s proper treatment. Moreover, the position argued by the dissent would set the precedent that a speculative hypothetical may serve as the standard of care in an action for medical malpractice. In South Carolina, medical malpractice actions require a greater showing than generic allegations and conjecture.

Second, Appellant provides no evidence that her expert, Dr. Frist, is familiar with the standard of care that Dr. Brusett or Dr. Habermeier allegedly breached, nor does Appellant offer what the applicable standard of care might be. Nothing in Dr. Frist’s affidavit, or in the record, suggests it was unreasonable for Dr. Brusett to extract the lesion after receiving a diagnosis of “probable pulmonary blastema,” and nothing in Dr. Frist’s affidavit, or in the record, instructs the Court with any specificity as to how competent practitioners in these fields would have performed this procedure differently.

We are mindful of the important interests at stake in this case. People who receive sub-standard medical care must be able to recover for injuries caused by at-fault physicians, and Plaintiffs must have a meaningful opportunity to present and support their claims in court. However, all of the evidence in this case suggests that Appellant received competent medical care. This is a case where a thoracic surgeon removed a piece of suspicious tissue, a pathologist and his partner returned a preliminary diagnosis of rare cancer, and the surgeon decided to take the tissue out. In support of her claim, Appellant offers an expert’s affidavits saying “you should have communi*250cated better and you got the diagnosis wrong.” The affidavits do not establish how the facts of this case would be different had the surgeon and pathologist “communicated better,” nor do they address the standard of care in any detail.

In affirming the trial court, we rely solely on the requirements of Rule 56, SCRCP, and the specific requirements for expert testimony in medical malpractice actions. A doctor need not practice in the particular area of medicine as the defendant doctor to be qualified to testify as an expert. Creed v. City of Columbia, 310 S.C. 342, 345, 426 S.E.2d 785, 786. (1993). Regardless of the area in which the prospective expert witness practices, he must set forth the applicable standard of care for the medical procedure under scrutiny and he must demonstrate to the court that he is familiar with the standard of care. A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner. Despite Dr. Frist’s qualifications, his affidavit does not set forth the standard of care he alleges was breached, nor does it provide that he is familiar the standard of care. Therefore, we hold that the trial court did not err in granting summary judgment in favor of Respondents Brusett, Pee Dee Cardiovascular, Habermeier and Pee Dee Pathology.

II. Vicarious Liability of McLeod Regional

Appellant argues that McLeod Regional had a nondelegable duty to provide competent pathology care to Appellant and therefore was vicariously liable for Dr. Habermeier’s preliminary misdiagnosis that resulted in unnecessary surgery. Because we hold that the trial court properly granted summary judgment in favor of Dr. Habermeier and Pee Dee Pathology, we need not address this issue. See Rookard v. Atlanta & C. Air Line Ry. Co., 84 S.C. 190, 192, 65 S.E. 1047, 1048 (1909) (judgment on the merits in favor of the agent bars a vicarious liability action against the principal).

Conclusion

For the foregoing reasons, we affirm the trial court’s decision granting the respondents’ motions for summary judgment.

*251MOORE, J. and Acting Justice PAULA H. THOMAS concur. PLEICONES, J., dissenting in a separate opinion in which BURNETT, J., concurs.

Justice PLEICONES:

I respectfully dissent from the majority’s decision to affirm the grant of summary judgment to the Respondent doctors and their practices, but join the decision to affirm the grant to Respondent McLeod. As explained below, I find Dr. Frist’s affidavit adequate to create a genuine issue of material fact whether the communication between the surgeon and the pathologist fell below generally accepted standards and procedures.4

As I understand Dr. Frist’s affidavit, the assertion is that if Dr. Brusett had informed the pathologist that he intended to immediately remove the affected portion of the lung if the intra-operative diagnosis were cancer, then Dr. Habermeier might have qualified his preliminary diagnosis. Contrary to the majority’s characterization of the affidavit, it does not assume that Dr. Habermeier’s diagnosis would have been different, but rather opines that had Dr. Habermeier been aware of Dr. Brusett’s intentions, Dr. Habermeier would have properly communicated “his pathological diagnosis and thoughts, to the rareness of his findings, so that the diagnosis could be used for the proper treatment of the patient at that moment.”

The majority holds that there is nothing in the affidavit to suggest that it was unreasonable for Dr. Brusett to have *252removed part of the lung upon receiving the blastema diagnosis. I do not disagree; however, as I understand the Appellants’ theory, they allege a deviation from the standard of care in the communications between'the surgeon and the pathologist, not in the surgical decision made upon receipt of the pathology report. In my opinion, the reasonableness of Dr. Brusett’s decision is not relevant to the summary judgment motion.

The majority also affirms, without discussion, the trial court’s holding that Dr. Frist’s affidavit failed to establish his familiarity with the standard of care. I would hold that Dr. Frist’s affidavit indicating proficiency in the specialty involved, coupled with the statement “It is my opinion, to a reasonable degree of medical certainty, that each of these Defendants deviated from the acceptable standard of care and were negligent ... in the following particulars ....” is sufficient to establish that he is familiar with the standard of care.

In my opinion, the trial court erred in holding that Dr. Frist’s affidavit did not demonstrate the existence of a genuine issue of material fact whether one or both physicians committed malpractice in failing to adequately communicate before and during the biopsy. See, e.g., Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004) (summary judgment is drastic remedy that should be cautiously invoked). I would therefore reverse the orders granting Respondents Brusett and Habermeier and their groups summary judgment. I would affirm the grant of summary judgment to McLeod, however, because there is simply no evidence in this record that the Appellants looked to the hospital rather than to the individual doctors for Mrs. Davis’s care. Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001) (in order to hold hospital vicariously liable for staff negligence, plaintiff must present evidence that she looked to the hospital for care).

BURNETT, J., concurs.

*1064Garfield, C. J.

This is a law action by plaintiff, a paid spectator at a tournament basketball game under the management, supervision and direction of defendant, Iowa High School Athletic Association, to recover for personal injuries from, collapse of bleachers. Defendant appeals from judgment on jury verdict for plaintiff.

The tournament was held at Roosevelt Junior High School fieldhouse in Mason City under a written contract between the school and defendant. Plaintiff, her husband and a Mr. and Mrs. Garland sat together at the game on the top row of seats. The bleachers were of wood and steel in sections 16 feet long and seven rows high. Below each row of seats above the bottom one was a wood footrest. The top row of seats was eight or nine feet above the gymnasium floor.

When the bleachers are not in use they are pushed back toward the wall with the seats and footrests in a near-vertical, rather than horizontal, position. Normally it takes three men to pull the bleachers out from their folded or collapsed position ready for occupancy and to push them back toward the wall to make added floor space. There are handholes in the vertical board between the bottom seat and the floor for use in pulling the bleachers out. “They push in kind of hard.” During the school year the bleachers are pulled out and pushed back two to four times a week.

The tournament game, between teams from Mason City and a nearby town, was close and exciting. Near the end of the game the spectators seated in front of those on the top row stood up on the seats or footrests “like they do at all exciting games,” and plaintiff, her husband and the Garlands were forced to do likewise in order to see the finish of the game.

As the game ended and the spectators were leaving their position in the section occupied by plaintiff and those with her, the seats and footrests collapsed or folded back toward the wall, with the boards in more of a vertical position. Plaintiff and Mr. Garland were thrown onto the floor, plaintiff’s husband was left hanging by one foot on the bleachers,' head down. Mrs. Garland had stepped back from the top footrest to the seat on which she *1065had been sitting and which was left intact. She did not fall. Plaintiff’s injuries are not an issue on this appeal.

Only the one section of bleachers collapsed. Everyone in it was standing toward the end of the game. The Boyers and Garlands had been directed to the seats they occupied. There were no aisles or spaces unoccupied by spectators in the bleachers. The spectators ordinarily left the bleachers, as they attempted to do this time, by stepping from their seats or footrests to those below.

I. Plaintiff pleaded her case in two counts or divisions, one charging specific acts of negligence, the other in reliance on the doctrine of res ipsa loquitur. We have frequently held this is permissible provided, of course, the doctrine is properly applicable. Eaves v. City of Ottumwa, 240 Iowa 956, 968, 38 N.W.2d 761, 768, 11 A. L. R.2d 1164, and citations; Ruud v. Grimm, 252 Iowa 1266, 1274, 110 N.W.2d 321, 325.

The trial court ruled there was no evidence to support the charges of specific negligence and withdrew them from jury consideration. The case was submitted to the jury on the doctrine of res ipsa loquitur.

II. Defendant first assigns error in the court’s refusal to withdraw from the jury the division based on res ipsa loquitur.

“ ‘Under the doctrine referred to, where injury occurs by an instrumentality under the exclusive control and management of defendant and the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference that defendant was negligent.’ Shinofield v. Curtis, 245 Iowa 1352, 1360, 66 N.W.2d 465, 470, 50 A. L. R.2d 964, and citations.

“ c* * # jn considering the applicability of res ipsa loquitur, the question whether the particular occurrence is such as would not happen if reasonable care had been used rests on common experience and not at all on evidence in the particular case that tends in itself to show such occurrence was in fact the result of negligence.’ Shinofield v. Curtis, supra.” Smith v. Ullerich, 259 Iowa 797, 804, 145 N.W.2d 1, 5.

*1066Thus the two foundation facts for application of the res ipsa doctrine, which permits an inference of defendant’s negligence from happening of the injury, are: (1) exclusive control and management by defendant of the instrumentality which causes the injury, and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.

We think the jury could properly find these foundation facts existed and infer therefrom plaintiff’s injury was caused by defendant’s negligence. Bleachers designed for use by spectators at athletic events do not ordinarily collapse, when used as they normally are, without negligence of those having control and management thereof.

Defendant asserts the res ipsa doctrine does not apply, first, because it is said the evidence of the cause of the collapse was accessible to plaintiff and not peculiarly accessible to defendant. As plaintiff admits in argument, under our decisions the underlying reason for the res ipsa rule is that the chief evidence of the true cause of the injury is practically accessible to defendant but inaccessible to the injured person. See Smith v. Ullerich, supra, 259 Iowa 797, 145 N.W.2d 1, 6; Shinofield v. Curtis, supra, 245 Iowa 1352, 1360, 66 N.W.2d 465, 470, 50 A. L. R.2d 964, and citations; Eaves v. City of Ottumwa, supra, 240 Iowa 956, 972, 38 N.W.2d 761, 770, 11 A. L. R.2d 1164, and citations. See also Sample v. Schwenck, 243 Iowa 1189, 1198, 54 N.W.2d 527, 532.

In these precedents one or both of the foundation facts above referred to were lacking and the absence of what we have said is the underlying reason for the rule was given as an added reason why it was not applicable to the particular case. We have never held presence of this “underlying reason” is an indispensable requirement for application of the doctrine.

Nor are we persuaded evidence of the true cause of the collapse or partial collapse of the bleachers was not peculiarly accessible to defendant rather thau, to plaintiff. The athletic director of the Mason City schools was acting manager of the tournament. He and the head custodian at' Roosevelt Junior High School must be deemed, under the contract between the *1067school and defendant, to have been acting under the management, supervision and direction of defendant. They had the exclusive control and management of the bleachers at least until game time and had the best opportunity to then discover any defect in them which may have caused the collapse.

We are told plaintiff had as much access to the bleachers immediately after the accident as defendant did and could discover any defect in them. A seriously injured person could hardly be expected to then examine the bleachers for defects rather than to be. concerned with proper treatment of her injuries.

Argument that so far as shown no part of the bleachers was broken or out of place merely indicates absence of specific acts of negligence and does not negative applicability of the res ipsa doctrine. Indeed where the precise cause of the injury clearly appears or is beyond dispute there is no room for inference and the res ipsa rule has no application. Eaves v. City of Ottumwa, supra, 240 Iowa 956, 968, 38 N.W.2d 761, 768, 11 A. L. R.2d 1164 and citations; Schneider v. Swaney Motor Car Co., 257 Iowa 1177, 1185, 136 N.W.2d 338, 343.

The argument the only permissible conclusion to be drawn from the evidence is that the movement of the spectators at the end of the game caused the bleachers to collapse cannot be accepted. Such a conclusion would rest wholly on speculation or conjecture. There is no evidence to support it. Assuming, but not deciding, this would be a defense to the res ipsa doctrine, it was defendant’s burden to rebut the inference of negligence. Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 152, 106 N.W.2d 351, 355, 85 A. L. R.2d 689, and citations; Hall v. Town of Keota, 248 Iowa 131, 143, 79 N.W.2d 784, 791, and citations; Larrabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 325, 178 N.W. 373.

Such limited control of the bleachers as plaintiff and other spectators may have had during and immediately following the game did not, as a matter of law, render the doctrine of res ipsa loquitur inapplicable. The jury could find defendant and its agents were in control of the bleachers at the time of the negligent act, as failure to inspect, which subsequently resulted *1068in injury to plaintiff and that she and the other spectators did nothing improper or unusual during their occupancy of them. See precedents last above, also Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224, 229, 230; Van Stavaren v. F. W. Woolworth Co., 29 N. J. Super. 197, 102 A.2d 59.

Defendant seeks to distinguish most of the decisions cited by plaintiff as to applicability of res ipsa on the ground evidence was there received of some defect which may have caused collapse of the seat on which the injured person was sitting. In our view this does not detract from their weight as precedents.

Introduction of evidence of specific negligence does not deprive a plaintiff of the right to have the res ipsa doctrine submitted to the jury in support of a general allegation of negligence in another count. Eaves v. City of Ottumwa, supra, 240 Iowa 956, 967, 968, 38 N.W.2d 761, 768, 11 A. L. R.2d 1164, and citations; Schneider v. Swaney Motor Car Co., supra, 257 Iowa 1177, 1185, 136 N.W.2d 338, 343.

III. Defendant assigns error in the overruling of its motion to direct verdict on the ground there is no sufficient evidence to show ordinary prudence would have suggested to defendant that any negligence on its part would probably result in injury to someone. We find the assignment without merit.

In argument on this point it seems to be assumed cause of collapse of the bleachers was movement of the spectators as the game ended. As stated in the preceding division, we think this does not appear. The precedents cited consider the liability of a proprietor of a place of amusement or entertainment for sudden, isolated acts of third persons which could not reasonably be anticipated. A long quotation from Foust v. Kinley, 254 Iowa 690, 117. N.W.2d 843, constitutes the principal part of the argument. We regard these cases as not pertinent to the issues submitted to the jury.

IV. Instruction 7 told the jury defendant was the tenant or possessor of the premises where the game was played, including the bleachers, and was required to use reasonable care to protect from injury those who came there at its invitation. Defendant objected to the instruction on the ground the construction of the contract between defendant and the school was for *1069the jury, not the court. Overruling the objection is assigned as error.

Defendant also requested instruction 9 which would have told the jurors it was for them to determine whether, under the contract between defendant and the school, the responsibility to use reasonable care to maintain the bleachers in a reasonably safe condition was upon defendant or the school. The request was refused.

Defendant’s assignment of error in the giving of instruction 7 and refusal of its ninth request is that it was for the jury, not the court, to determine what rights and duties, if any, defendant had toward the maintenance and care of the.physical plant. Defendant’s first brief point under this assignment is that the interpretation of an ambiguous or uncertain contract is for the jury. Plaintiff, in effect, admits this brief point as an abstract proposition. The arguments center about whether the contract is ambiguous or uncertain as defendant asserts or clear and unambiguous as. plaintiff contends. We find no error in the respect asserted.

A contract is ambiguous when, after application of pertinent rules of interpretation to the face of the instrument, a genuine uncertainty exists as to which of two or more meanings is the proper one. The question of interpretation, i.e., the meaning to be given the words of a contract, is one of fact which may or may not be for the judge or the jury.

Construction of a contract means determination of its legal operation — its legal effect upon the action of courts. Construction is always a matter of law for the court. Morris Plan Leasing Co. v. Bingham Feed and Grain Co., 259 Iowa 404, 416, 143 N.W.2d 404, 412, and citations; Fetters v. City of Des Moines, 260 Iowa 490, 494, 149 N.W.2d 815, 818, and citations.

Section one of the contract between defendant and the school provides:

“The School agrees that the * * # Association’s District Tournament shall be conducted and played in the School gymnasium on the following dates * * * and for such purpose to make available and furnish its gymnasium, necessary equipment other than that furnished by the Association as herein provided, *1070doormen, ushers, announcers, scorers, timekeepers, and to have its superintendent or principal act as active manager thereof and conduct the tournament subject to the management, supervision and direction of the Association in accordance with its rules and regulations.” (Emphasis added.)

►Section seven of the contract provides defendant agrees to pay and the school agrees to accept as full compensation for the use of all facilities, equipment, personnel and services to be furnished by the school twenty percent of the tournament receipts, not exceeding an average of $200 per night.

These provisions seem clearly to constitute defendant tenant or possessor of the gymnasium and equipment therein and to place the personnel and services to be furnished by the school under defendant’s management, supervision and direction, for the duration of the tournament. There was no need for extrinsic evidence as an aid to interpretation of the contract nor do we find such evidence was offered.

It seems to us a rule applicable' here is that presumptively the law regards the tenant of property as the owner for the time being and subject to all the responsibilities of one in possession to one who enters upon it by invitation. See Fetters v. City of Des Moines, supra, 260 Iowa 490, 497, 149 N.W.2d 815, 819, 820.

“Presumptively the one who occupies premises is liable to one who is negligently injured while rightfully thereon.” Burner v. Higman & Skinner Co., 127 Iowa 580, 585, 103 N.W. 802, 804; Fetters case, supra.

It is perhaps unnecessary to this division to quote one of the rules and regulations referred to in section one of the contract between defendant and the school. However item 16 thereof has a distinct bearing on the ease and may be set out. It provides :

“Item 16 — Checking Bleachers and Overcrowding oe Gymnasiums

“Your attention is called to the importance of checking your bleachers, to avoid overcrowding of them.

“As you probably remember, several years ago a section of bleachers collapsed at the Purdue University Field House. Two *1071students were killed and scores hospitalized. This is a serious matter and you are urged to check carefully your bleachers to ascertain that they are in good condition, well-supported and do not permit overcrowding of these bleachers. An announcement might well be made at each game urging those people on the bleachers to sit quietly. Every effort should be made to see to it that no concerted swaying movement of fans is permitted. Check your bleachers before each session. Above everything else, do not overcrowd the bleachers and do not permit crowding in the exits and aisles. High School tournaments have had a good record in Iowa. Let’s keep the record untarnished.”

This language must be deemed cautionary instructions to persons, as above indicated, under defendant’s management, supervision and direction during the tournament.

V. Error is assigned in the refusal of defendant’s first requested instruction which stated the user of a manufactured product is not required to take added precautionary measures to make it safer but is authorized to use it in the condition as purchased from the manufacturer, ordinary wear and tear excepted, provided it is used in the manner and for the purpose for which it was manufactured. Also that the jury could not find defendant negligent for failing to make the bleachers safer by adding something thereto if they were being used in the manner and for the purpose for which they were manufactured.

Defendant’s objection to the refusal of this request asserted it allowed the jury to .speculate as to a duty on defendant to improve a manufactured product whereas it was under no such duty.

The request appears to be based on language in Wagner v. Larson, 257 Iowa 1202, 1211, 1212, 136 N.W.2d 312, 318. Its abstract correctness may be assumed. However, we think the court was not required to so instruct and that to have done so would have injected into the case an issue not pleaded, as the case was submitted to the jury, and it might have led to confusion. Had the jury based recovery on defendant’s failure to make the bleachers safer than when obtained from the manufacturer, it would have gone outside the court’s instructions. See *1072Hart v. Hinkley, 215 Iowa 915, 919, 247 N.W. 258; Murphy v. City of Waterloo, 255 Iowa 557, 566, 123 N.W.2d 49, 54.

YI. Defendant assigns error in the refusal of its second requested instruction which would have called attention to evidence there had been no prior similar incidents; such evidence tended to show absence of danger and, in effect, lack of knowledge of danger by defendant, and should be given such weight for such purpose as the jury saw fit to give it.

Defendant’s objection to the refusal of this request includes the assertion that without it the jury would not know what weight to give the testimony referred to.

The court properly refused this second request. Instructions should not ordinarily call attention to testimony favorable to one party because they give undue prominence thereto. Eaves v. City of Ottumwa, supra, 240 Iowa 956, 967, 38 N.W.2d 761, 768, 11 A. L. R.2d 1164, and citations; Vance v. Grohe, 223 Iowa 1109, 1118, 274 N.W. 902, 116 A. L. R. 332, 340. See also Belle v. Iowa State Highway Comm., 256 Iowa 43, 50, 51, 126 N.W.2d 311, 315, 316, and citations.

VII. Defendant’s final assignment is in failure to sustain its motion for directed verdict on the ground plaintiff did not prove negligence of defendant.

As stated in Division I hereof, the court ruled there was no evidence to support the charges of specific negligence and withdrew them from jury consideration. Defendant argues it follows from this the count based on res ipsa loquitur should also have been withdrawn since, we are told, there was no failure of the mechanism.

This final assertion is not quite accurate. The bleachers collapsed to a position where occupants were thrown to the floor. It is true there is no evidence of the specific cause of the collapse. But it does not appear, certainly not as a matter of law, there was no failure of the mechanism. In any event, we think this assigned error is answered by our holding in Division II that absence of evidence of specific acts of negligence does not negative applicability of the res ipsa doctrine.

We find no reversible error in any respect assigned and argued. — Affirmed.

*1073All Justices concur except Mason, J., who takes no part, and Becker and Rawlings, JJ., who concur specially in the result.

Becker, J.

I concur in result. It seems both unnecessary and unwise to continue to cling to the exclusive control doctrine when we have decided eases where exclusive control was not in fact proved and yet approved the use of the doctrine of res ipsa, Weidert v. Monahan Post Legionnaire Club, 243 Iowa 643, 51 N.W.2d 400; Sutcliffe v. Fort Dodge Gas & Elec. Co., 218 Iowa 1386, 257 N.W. 406; Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 106 N.W.2d 351, 84 A. L. R.2d 689, and Larrabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 178 N.W. 373. Many authorities on the subject indicate quite clearly that exclusive control is not, or should not be, a prerequisite to the application of the doctrine of res ipsa loquitur.

Restatement, Second, Torts, section 328D(g), page 161. “Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential to a res ipsa loquitur case. The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.”

Harper and James, The Law of Torts, section 19.7, page 1085, states: “Viewed in this light the requirement of proof of exclusive control is immediately seen to impose too strict a burden upon plaintiffs. Exclusive control may have the requisite logical tendency, but there are also many other ways (not involving exclusive control) in which the probable negligence can be attributed to defendant. And in fact the courts do not generally apply this requirement as it is literally stated, although mechanical insistence upon it has brought about an occasional restrictive result. The requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably ‘such that the defendant would be responsible for any negligence connected with it.’ ”

Other authorities might be cited for the proposition that *1074while exclusive control is an element to be considered, it is not a prerequisite to the use of the doctrine.

Kawlings, J., joins in this special concurrence.

*456GIBSON, C. J.

Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling “bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous . . . and likely to explode.” This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about eighteen inches from the ease “it exploded in my hand.” The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, “It made a sound similar to an electric light bulb that would have dropped. It made a loud pop.” Plaintiff’s employer testified, “I was about twenty feet from where it actually happened and I heard the explosion.” A fellow employee, on the opposite side of the counter, testified that plaintiff “had the bottle, I should judge, waist high, and I know that it didn’t bang either the case or the door or another bottle . . . when it popped. It sounded just like a fruit jar would blow up. . . .” The witness further testified that the contents of the bottle “flew all over herself and myself and the walls and one thing and another.”

The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the “fracture line” where the bottle broke in two.

*457One of defendant’s drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.

Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur.

Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment.

Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. (See Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087] ; Stolle v. Anheuser-Busch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001] ; Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d 601] ; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So.2d 677] ; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Moeres v. Coca-Cola Bottling Co., 290 Mich. 567 [287 N.W. 922] ; Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d 1020.) Other courts for varying reasons have refused to apply the doctrine in such cases. (See Gerber v. Faber, 54 Cal.App.2d 674 [129 P.2d 485] ; Loebig’s Guardian v. Coca-Cola Bottling Co., 259 Ky. 124 [81 S.W.2d 910]; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz, 35 Misc. 341 [71 N.Y.S. 942]; Luciano v. Morgan, 267 App. Div. 785 [45 N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v. Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516] ; Wheeler v. Laurel Bottling Works, 111 Miss. 442 [71 So. 743, L.R.A. 1916E 1074] ; Seven-Up Bottling Co. v. Gretes, _Va._[27 S.E.2d 925]; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135, 28 L.R.A.N.S. 949].) It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily *458would not occur in the absence of negligence by the defendant. (Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [140 P.2d 369], and authorities there cited; cf. Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724]; Prosser on Torts [1941], 293-301.)

Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession. (See cases collected in Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140 P.2d 369].) As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 [20 A.2d 352, 354], “defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; ... to get to the jury the plaintiff must show that there was due care during that period.” Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: “Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.” (See, also, Olson v. Whitthorne (& Swan, 203 Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129].) It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. (Cf. Prosser, supra, p. 300.) If such evidence is presented, the question becomes one for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868, 869]), and, accordingly, the issue should be submitted to the jury under proper instructions.

In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. In 1 Shearman and Redfield on Negligence (rev. ed. 1941), page 153, it is stated that: “The doctrine . . . requires evidence which shows at least the probability that a particular accident could not have occurred without legal wrong by the defendant.”

An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies.

The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently-failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it. Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.

A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are “pretty near” infallible.

It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do *461occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and cheeking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. (Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; Michener v. Hutton, 203 Cal. 604, 610 [265 P. 238, 59 A.L.R. 480].)

The judgment is affirmed.

Shenk, J., Curtis, J., Carter, J., and Sehauer, J., concurred.

TRAYNOR, J.

I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used, without inspection, proves to have a defect that causes injury to human beings. McPherson v. Buick Motor Co., 217 382 [111 N.E. 1050], Ann.Cas. 1916C 440, L.R.A. 1916F, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer *462is responsible for an injury caused by such an article to any person who comes in lawful contact with it. (Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards not. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; O’Rourke v. Bay & Night Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact in*463ferred is “clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has bee established as a matter of law.” (Blank v. Coffin, 20 Cal.2 457, 461 [126 P.2d 868].) An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.

In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470 declares that food is adulterated when “it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome or injurious to health.” The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (§ 26451), has any deleterious substance (§26470 (6)), or renders the product injurious to health. (§26470 (4)). The criminal liability under the statute attaches without proof of fault, so thaf the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. (People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. (See eases cited in Prosser, Torts, p. 693, note 69.)

The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal lia*464bility only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective goods by the imposition of civil liability generally.

The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. (Goetten Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142] ; Mix v. Ingersoll Candy Co., 6 Cal.2d 674 [59 P.2d 144] ; Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive Grocery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339] ; Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F 1172].) This warranty is not necessarily a contractual one (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1 Williston on Sales, 2d ed., §§ 197-201), for public policy requires that the buyer be insured at the seller’s expense against injury. (Race v. Krum, supra; Ryan v. Progressive Grocery Stores, supra; Chapman v. Roggenkamp, 182 Ill.App. 117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown, The Liability of Retail Dealers For Defective Food Products, 23 Minn.L.Rev. 585.) The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. (Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev. 494, 509.) Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.

The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words *465of Judge Cardozo in the McPherson ease: “The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used.” Yet, the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a solution.” While the defendant’s negligence in the McPherson case made it unnecesssary for the court to base liability on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.

This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend “upon the intricacies law of sales” and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 282 [93 P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and health inhere in other consumers’ goods that are defective and there is no reason to differentiate them from the dangers of defective food products. (See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)

In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negli*466gence: “Practically he must know it [the product] is fit, or bear the consequences if it proves destructive.” (Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see Jeanblane, Manufacturer’s Liability to Persons Other Than Their Immediate Vendees, 24 Va.L.Rev. 134.) Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts (Decker & Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict liability. (See Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 475]; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573, 46 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L. Rev., 399, 403; Feezer, Capacity To Bear The Loss As A Factor In The Decision Of Certain Types of Tort Cases, 78 U. of Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The Doctrine of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. 263, 271; Pound, The End of Law As Developed In Legal Rules And Doctrines, 27 Harv.L.Rev. 195, 233.) Warranties are not necessarily rights arising under a contract. An action on a warranty “was, in its origin, a pure action of tort,” and only late in the historical development of warranties was an action in assumpsit allowed. (Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) § 970.) “And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.” (Williston, loc. cit.; see Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117, 118.) On the basis of the tort character of an action on a warranty, recovery has been allowed for wrongful death as it could not be in an action for breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Dugan Bros., 175 Mise. 182 [22 N.Y.S.2d 238]; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S. Kresge Co., supra, “Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.” Even a seller’s express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].) “As an actual agreement to contract is not essential, the obli*467gation of a seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable.” (1 Williston on Sales, 2d ed. §197; see Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)

As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash; 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521]; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496], affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will, Trade-Marks and Unfair Trading (1914) ch. VI, A Study of The Consumer, p. 65 et seq.; Williston, Liability For Honest Misrepresentations As Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers, no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram-Distillers Corp., 299 U.S, 183 [57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476]; Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (See Bogert and Pink, Business Practices Regarding Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more *468intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. (See Soule, Consumer Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer, Manufacturer’s Liability For Injuries Caused By His Products: Defective Automobiles, 37 Mich.L. Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.)

The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

Appellant’s petition for a rehearing was denied August 3, 1944. Edmonds, J., voted for a rehearing.

Mr. Justice Kelley

delivered the opinion of the Court.

The parties appear here in the same order as they appeared in the trial court. Kaufman’s, Inc., was a defendant below. At the conclusion of the evidence, the defendants’ motion to dismiss was granted by the trial court as to Kaufman’s, Inc., and denied as to Wohl Shoe Company. The plaintiff joined in the motion as to Kaufman’s, Inc. Although it was designated a defendant in error and its name was carried throughout the error proceedings and on the briefs, Kaufman’s is not a proper party in the proceedings here.

Plaintiff’s claim is for damages for personal injuries, the result of being struck by a falling object while trying on shoes in the defendant’s shoe store. The questions of liability and damages were submitted to a jury which returned a verdict in favor of the defendant. From a denial of her motion for new trial the plaintiff sued out this writ of error.

Plaintiff’s grounds for reversal all involve questions arising out of the application of the doctrine of res ipsa loquitur. One phase of alleged error relates to either instructions given or tendered and refused, while the second phase involves the failure of the trial court to direct a favorable verdict for the plaintiff as to liability.

In short, the plaintiff, although having convinced the court that the doctrine of res ipsa loquitur applied, now objects to the manner in which it was applied. On the other hand, the defendant maintains that under the circumstances of this case the doctrine of res ipsa loquitur is not applicable.

The threshold question, therefore, is whether under the circumstances there should have been any instructions given in reference to the doctrine of res ipsa *178 loquitur. An examination of prior pronouncements of this court indicates that a careful analysis of the doctrine or rule and the evidence is necessary to determine that question.

Turning for the moment to the physical background in which the accident arose, we find that the defendant occupied a portion of the ground floor of Kaufman’s department store which it leased for the retail sale of shoes. The relevant furniture and fixtures consisted of thirty-three customer chairs; a combination formica topped display table with attached shelves (three in number), rising to a total height of some five or six feet; and two identical stands, each having a light metal tripod base, a lucite upright “pole,” at the end of which was mounted an adjustable metal grating or platform for the display of a pair of ladies shoes, the overall height of which was about fourteen inches.

Thirty of the customer chairs were lined up against the east and north walls of the shoe department. Near the center of the area the remaining three chairs were faced into the area so that the chairs formed a “U.” The display table was situated immediately in back of the three chairs, a distance of a few uncertain inches. The two stands sat on the top shelf of the display table, one near each end, and approximately above the two end chairs. A silk scarf was draped over each stand and a pair of shoes rested on each platform.

The plaintiff entered these premises during the morning hours of the fateful day. At that time there were two employes and another customer in the shoe department.

Upon entering, the plaintiff went to a display table, other than the one above described, and, while inspecting a pair of shoes, the manager, a Mr. Kambanos, approached her, asked if he could be of assistance, and suggested that she sit down. The plaintiff complied, selecting one of the end chairs of the three in the center of the room. Kambanos selected a pair of shoes for plaintiff to *179try. In order to examine them, she walked to a nearby mirror and then returned to sit in the same chair. As she sat down the chair apparently bumped the display table with sufficient force to cause the shoe stand immediately above her chair to topple off the shelf and strike the plaintiff on the side of her head, thereby causing the injury of which complaint is made. However, the identical shoe stand at the opposite end of the top shelf did not fall.

It is the plaintiff’s contention that the foregoing factual situation required the invocation of the doctrine of res ipsa loquitur, relying heavily upon Chapman v. Redwine, 149 Colo. 515, 370 P.2d 147; Weiss v. Axler, 137 Colo. 544, 328 P.2d 88; Scott v. Greeley Joslin Store Co., Inc., 125 Colo. 367, 243 P.2d 394. On the other hand, the defendant asserts that just the opposite is true. Defendant relied on Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344, and Home Public Market v. Newrock, 111 Colo. 428, 142 P.2d 272.

A good statement of the philosophy of the doctrine is found in Yellow Cab Co. v. Hodgson, 91 Colo. 365, 14 P.2d 1081, in which this court approved the following text from 45 C. J. 1205:

“* * * The reason or theory of the doctrine of res ipsa loquitur is based in part upon the consideration that, as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defendant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident, and should, therefore, be required to produce the evidence in explanation. Accordingly if the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party *180charged or if plaintiff himself has equal or superior means of information, the doctrine cannot be invoked.”

This court, in Denver Tramway Corporation v. Kuttner, 95 Colo. 312 35 P.2d 852, cautioned that:

“* * * The * * * doctrine * * * is the creature of stern necessity for the sake of guarding against a miscarriage of justice that in a negligence case might follow because of the mere secrecy or invisibility of danger concerning which the outsider could know nothing. It is a doctrine that must be kept within comparatively narrow limits, lest a desire to promote justice bring about the defeat of justice instead * *

In considering the applicability of res ipsa, some other fundamental rules of law must be integrated into our thinking. We are here concerned with the relationship of a storekeeper and a business visitor. In such relationship the storekeeper owes a duty to one who enters upon the premises at his invitation, express or implied, to protect such visitor not only against known dangers, but also against those which, by the exercise of reasonable care, he might discover. Drake v. Lerner Shops, 145 Colo. 1, 357 P.2d 624; Home Public Market v. Newrock, supra.

In short, although the storekeeper must exercise reasonable care for the safety of the business visitor, he is not an insurer of the safety of such visitor; thus, the mere happening of an accident raises no presumption of negligence, except under those circumstances where the doctrine of res ipsa loquitur is applicable.

There is no fundamental disagreement between the parties as to the law. The plaintiff would invoke res ipsa because she “could not possibly have foreseen that by merely sitting down in a proffered chair in a normal manner she would, in effect, spring a concealed trap resulting in a steel and plastic display rack striking her on the head from behind.” We are inclined to agree that she probably could not “have foreseen” the accident. But this is not the res ipsa test.

*181The circumstances here were such that the plaintiff could have shown that the defendant was responsible for her injuries because of its negligence. By way of illustration, it could have been demonstrated, if such were the fact, that the display table was unstable; that it wobbled from a mere touch, and that by placing the shoe display stand on the top shelf, the defendant negligently created a dangerous condition. Or it might have been demonstrated that the tripod-based shoe stand was so unstable that the mere use of it on a shelf high above the head of a customer was likely to topple off from the usual and customary bumps which a display table receives. In other words, the plaintiff had the means available to her to establish negligence on the part of the defendant, if any there was. As we pointed out above, the storekeeper is not an insurer.

Under the circumstances of this case, the court erred in submitting any instruction on res ipsa loquitur. Holding as we do, it is not necessary to discuss the correctness of either of the given or the tendered instructions.

No questions have been raised as to the other instructions which the court gave. It appears that, except for the improper res ipsa instruction, the instructions given fairly presented the issues of negligence and contributory negligence. Consequently, the plaintiff, by virtue of the improper instruction, had an unfair advantage, but, even so, failed to prevail. The defendant having won, despite the improper instruction, has therefor not been prejudiced.

The judgment of the trial court is affirmed.

Mercure, J.

Cross appeals from an order of the Supreme Court (Moynihan, Jr., J.), entered April 25, 2002 in Warren County, which denied a motion by defendant Millar Elevator Company, Inc. for summary judgment dismissing the complaint against it.

In January 1993, plaintiff was injured when a passenger elevator in which he was riding allegedly malfunctioned during its descent from the first floor to the ground floor of Glens Falls City Hall in Warren County. Plaintiff commenced this personal injury action against, among others, defendant Millar Elevator Company, Inc. (hereinafter defendant), which had a contract to maintain and repair the elevator. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion. Plaintiff appeals from that part of Supreme Court’s order precluding his reliance on the doctrine of res ipsa loquitur and defendant cross-appeals from so much of the order as denied its motion for summary judgment.

Defendant concedes that “[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]). In connection with its motion for summary judgment, defendant submitted maintenance records including work tickets for a period of approximately a year preceding plaintiff’s accident and an affidavit from its repair technician showing monthly maintenance and inspections. The technician averred that the elevator was working properly. In addition, defendant produced service call logs that indicated no complaints associated with the ascending or descending of the elevator. Thus, defendant met its initial burden by demonstrating that it had neither actual nor constructive notice of a defective condition regarding the *937elevator’s performance as it was ascending or descending (see Tashjian v Strong & Assoc., 225 AD2d 907, 908-909 [1996]; cf. Proctor v Rensselaer Polytechnic Inst., 277 AD2d 536, 539 [2000]).

In opposition to defendant’s motion, plaintiff submitted an affidavit from an elevator expert/consultant who noted that three of defendant’s work tickets referred to maintenance performed on the elevator’s safe edge, which is designed to prevent closing elevator doors from crushing passengers. The expert concluded that these work tickets demonstrated that the elevator’s safe edge was deteriorating. He asserted that the safe edge likely became loose and caught in the elevator’s hoist-way, causing the accident. Although most of the expert’s remaining conclusions and assertions — which are based upon his examination of the elevator more than eight years after the accident or upon photos taken by plaintiff after the condition of the elevator had been altered — are merely speculative, the affidavit raises a material issue of fact regarding whether the repeated repairs to the safe edge should have alerted defendant to a condition that required repair (see Warner v Historic Hudson Riv. Heritage Dev. Co., 235 AD2d 987, 989 [1997]; cf. Petro v New York Life Ins. Co., 277 AD2d 213, 214 [2000]).

Contrary to plaintiffs arguments, however, Supreme Court properly determined that the doctrine of res ipsa loquitur does not apply here. That doctrine requires that a plaintiff establish the following conditions: “First, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997] [citation omitted]; see Walden v Otis El. Co., 178 AD2d 878, 879 [1991], lv denied 79 NY2d 758 [1992]). The second prong of the test requires “that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227 [1986] [internal quotation marks and citations omitted]). In other words, the likelihood of other causes “ ‘must be so reduced that the greater probability lies at defendant’s door’ ” (id. at 227, quoting 2 Harper and James, Torts § 19.7, at 1086).

While, as plaintiff asserts, the doctrine of res ipsa loquitur has been applied in many cases involving injuries caused by elevators (see Walden v Otis El. Co., supra at 879), we conclude *938that plaintiff did not establish sufficient exclusivity of control over the safe edge here. Unlike cases involving breakdown of operating mechanisms that are relatively inaccessible to the general public (see e.g. Weeden v Armor El. Co., 97 AD2d 197 [1983]), the safe edge, which plaintiff asserts caused the accident, is designed to come into contact with the public and, thus, subject to potentially damaging misuse or vandalism (see Dermatossian v New York City Tr. Auth., supra at 228). Accordingly, plaintiff is not entitled to have res ipsa loquitur charged to the jury.

Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.