c284:No. 19428

PRETTYMAN, Senior Circuit Judge
(dissenting):
I disagree with my brethren on this case.
I agree that the regulation (Article 406-22 (h)) is not retroactive and therefore does not apply specifically to this case; the regulation itself is not violated. The court holds the regulation admissible as evidence of an official declaration defining one element of the due care required of property owners and the municipality lest they be liable in damages. The case concerns a hinge which protruded one inch above a vault-covering in the sidewalk. To reset it so as to make it “flush with a pavement” would be quite a job; indeed, as I see it, the installation of a different type of cover would be necessary. There is no discernible means by which the hinge alone could be lowered. Merely lowering the door would not cure the danger; pedes^ trians would still be liable to stumble over the protruding hinge. And, if the door were lowered so as to make the top of the hinge flush with the sidewalk, the whole door would be sunk below the surrounding sidewalk, creating a real danger. The Commissioners must have had these considerations in mind when they notably did not make the requirement applicable to existing vaults.
When the court says that failure to replace this hinge, or to retract its protrusion, is evidence of negligence on the part of the owner and of the District, it is doing what the Commissioners refrained from doing. While it casts its directive in the form of a ruling on evidence (and thus within its competence), it is really promulgating a requirement as to the construction of sidewalk vaults. However dissimilar the two rulings may be in abstract theory or in semantics, in actual practicality a ruling that protrusions on vault-coverings must be made flush with the pavement and a ruling that the presence of such a protrusion is evidence of negligence are the same. A person is required by law not to do that which is negligent. Certainly property owners will see little, if any, difference. And I think a jury would not grasp the fine distinctions embodied in the instruction required by my brethren. Once the regulation is in evidence, a jury would almost inevitably give it effect. Indeed I am not quite sure myself what the line is between giving effect to the regulation and considering it as evidence of negligence. I know that we enshroud the latter with references to “all other evidence”, but I do not suppose any of us regard that tangle of varied circumstances as definitive. I know that many learned people glory in the refinements implicit in caveats directed to juries in the face of clear evidence, but I distrust them and would approve them only where absolutely necessary.
The authorities to which the court refers on this point, and others like them, are directed to the problem whether a safety statute or regulation applicable to the situation involved in a tort action may be used as evidence of negligence. The answer is debatable. Professor Wig-more, for example, condemns such use as unwise. But, be that as it may, in the case at bar it is agreed the regulation did not apply. So that problem is not in the case. The proposition here is that the regulation, although not applicable, is admissible as evidence of negligence.
The only premise for admissibility in any event is that the enactment represents an official declaration of care required. If the regulation does not apply, or if the intention is not expressed, or if it be only vaguely expressed, admissibility is not supported by any authority I can find. It is cogently pointed out that reading an intent into an enactment which fails to state it is carrying construction beyond permissible limits. The authors of the cited textbook use a striking figure of speech — “the will-o’-the wisp of a nonexistent legislative intention”. Professor Thayer once commented, “But this sort of speculation as to unexpressed legislative intent is a dangerous business, permissible only within narrow limits; and the tendency to overindulge it is responsible for much of the confusion in the law.” In the present case the Commissioners did not make their requirement applicable to existing vaults. It was not their judgment that such vaults were so dangerous as to require remedy. They did not express an intent that existing vaults not flush with the pavement were violative of required due care. Nevertheless, absent such an expression on their part, the court now speculates that it was their intention to classify those vaults as violative of the due care owed to the public by the property owners and the District. I think this is unwarranted speculation, and it is not supported by any authority I can find.
Undoubtedly the public good would be served if all these protrusions in iron doors on the sidewalks were made smooth. The thesis underlying the court’s opinion, it seems to me, is that the public good rather than negligence should be the criterion of liability. This serves the ends of that social theory which holds that all personal injury should be a public burden. But, although I strongly believe in the capacity of the common law to change itself to accommodate new needs, it seems to me that this change from established standards is too cataclysmic to be wrought in a sudden shift. I hold to negligence as the criterion for liability for damage. I would leave the problem with the Commissioners, who have the responsibility for the condition of the streets and also the power under Congressional grant to design and impose the remedies.
I would affirm.
. 2 Wigmore, Evidence § 461, par. 6, pp. 500-501 (3d ed. 1940).
. See, e. g., 2 Harper and James, Torts § 17.6, p. 995, nn. 3, 4, 5 (1956).
. Id., n. 5.
. Public Wrong and Private Action, 27 Harv.L.Rev. 317, 320, 321 (1914).

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