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(n139) Id.

(n.140) Id.

(n141) Id.

(n142) Id. at 129.

(n143) See Id. at 127.

(n144) ARPAN & RADEBAUGH, supra note 107, at 30-31.

(n145) 35 N.Y. 210 (1866).

(n146) My opinion therefore is, that this action cannot be sustained, for the reason that the damages incurred are not the immediate but the remote result of the negligence of the defendants...

To sustain such a claim as the present, and to follow the same to its legitimate consequences, would subject to a liability against which no prudence could guard, and to meet which no private fortune would be adequate.

Id. at 213.

(n147) See PROSSER & KEETON ON TORTS, supra note 4, at 25. "This [reluctance of the courts to saddle an entire industry with the entire harm it may cause] is particularly true where the liability may extend to an unlimited number of unknown persons, and is incapable of being estimated or insured against in advance." Id. citing Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928); Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928); and Ryan, 35 N.Y. 210 (1866). Certainly, Ultramares v. Touche belongs in this distinguished company. See quotation supra note 11.

(n148) See William Prosser, Comparative Negligence, 41 CAT. L. REV. 1, 1-4 (1953) [hereinafter Comparative Negligence]. As early as 1953 William Prosser noted that the United States is virtually the last stronghold of contributory negligence. The last vestiges of the complete defense disappeared long since from continental Europe, which divides the damages, Great Britain, all of the Canadian provinces, New Zealand ... have come to the same result so that little of the British Empire is left with the common law rule. Id. at 2.

(n149) See infra notes 193-94 and accompanying text.

(n150) See Comparative Negligence, supra note 148, at 9. "Obviously any estimate that 40 percent of the total fault rests with the pedestrian who walks out in the street in the path of an automobile, and 60 percent with the driver who is not looking and runs him down represents nothing resembling accuracy based on demonstrable fact. The estimate might quite as well be anywhere between 25-75 and 75-25." Id.


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