Section VIII. Contributory Culpable Conduct of Plaintiff (part 1)

NEAL v. GILLETT Supreme Court of Errors, Connecticut, June Term, 1855. Reported in 23 Connecticut Reports, 437.

Action to recover for personal injury alleged to have been incurred through the negligence of the defendants. Plaintiff claimed that the defendants were guilty of gross negligence, as the cause of the injury; and that, if the jury should so find, the plaintiff was entitled to recover notwithstanding there had been on his part a want of mere ordinary care which might have essentially contributed to produce the injury complained of. The Court charged the jury in conformity to this claim of the plaintiff. Verdict for plaintiff. Motion for new trial.

Sanford, J. [Omitting opinion on another point.] The question presented upon the second point, is, whether a plaintiff is entitled to recover for an injury, produced by the combined operation of his own want of “ordinary care,” and the gross negligence of the defendant. The exact boundaries between the several degrees of care and their correlative degrees of carelessness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by “ordinary care,” is meant “that degree of care which may reasonably be expected from a person in the party’s situation” (41 E. C. L. R. 425), that is, “reasonable care” (19 Conn. R. 572); and that “gross negligence” imports not a malicious intention or design to produce a particular injury, but a thoughtless disregard of consequences; the absence, rather than the actual exercise, of volition with reference to results.

What is the measure of “reasonable care” must of course depend upon the circumstances of the particular situation in which the party at the time is placed. But “reasonable care,” every one, in the enjoyment of his rights, and the performance of his duties, is bound to exercise at all times and under all circumstances. When he has done that, he is answerable to no one for any consequences which ensue, for he has done all his duty; when he has done less than that he is in fault, and if an injury ensue to another in consequence of such fault, he is responsible for it; if to himself, he must bear it. If in the enjoyment of their lawful rights by two persons, at the same time and place, reasonable care is exercised by both, and an injury accrues to one of them, it must be borne by the suffering party as a providential visitation. If such care is exercised by neither party, and an injury accrues to one of them, he must bear it, for he was himself in fault. And we hold that when the gist of the action is negligence merely,—whether gross or slight, the plaintiff is not entitled to recover, when his own want of ordinary, or reasonable care, has essentially contributed to his injury; because he is himself in fault, and because of the difficulty, if not impossibility, of ascertaining in what proportions the parties respectively, by their negligence, have contributed to the production of the injury, and whether it would have been produced at all but by the combined operation of the negligence of both. When the injury is intentional, and designed, other considerations apply.

For anything this Court can see, the negligence of the defendants, however gross, might have been entirely harmless, but for the plaintiff’s own wrongful contribution to the combined causes which produced his injury. And so too, for anything this Court can see, although the defendants’ negligence was gross, and fully adequate to the production of the injury, yet the plaintiff’s exercise of reasonable care would have saved him from its consequences.

In the recent case of Park v. O’Brien, 23 Conn. R. 339, this Court said, “It is necessary for the plaintiff, to prove, first, negligence on the part of the defendant, and, secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, the plaintiff must show that such injury was not caused, wholly, or in part, by his own negligence; for although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence.” “Hence, to say that the plaintiff must show the latter” [the want of the plaintiff’s concurring negligence], “is only saying that he must show that the injury was owing to the negligence of the defendant.”

The same reasonable doctrine is sanctioned by other decisions, in our own Court and elsewhere. Birge v. Gardiner, 19 Conn. R. 507; Beers v. Housatonic R. R. Co., 19 Conn. R. 566, and cases there cited.

We think, therefore, that the charge of the Court, on this point, was wrong, and that a new trial ought to be granted.

In this opinion the other judges concurred, except Ellsworth, J., who was disqualified.

New trial to be granted.

PAYNE v. CHICAGO & ALTON RAILROAD COMPANY Supreme Court, Missouri, June 25, 1895. Reported in 129 Missouri Reports, 405.

Action for personal injuries alleged to be caused by the negligence of defendant. Answer: a general denial, and a plea of contributory negligence.

The judge, at the request of plaintiff, gave the following instruction:—

“No. 7. One of the defences in this case interposed by the defendant is that of negligence on the part of plaintiff, Claude Payne, directly contributing to the injuries of which plaintiff complains; and the court instructs the jury that the law devolves upon the defendant the burden of proving such negligence by a preponderance of the evidence, and it is not sufficient that the jury may believe from the evidence that the plaintiff was simply guilty of negligence, but that the negligence of plaintiff, and not that of the defendant, must be the proximate or immediate cause of the injury, to excuse the defendant from liability.”

In the Circuit Court plaintiff had judgment. Defendant appealed.

Macfarlane, J. Defendant complains of instruction 7 given the jury at the request of plaintiff. The complaint is that the instruction improperly defines contributory negligence.

Contributory negligence, as the word imports, implies the concurring negligence of both plaintiff and defendant. The phrase is defined by Beach as follows: “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or coöperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of.” Beach, Cont. Neg. [2 ed.] sect. 7. The definition given by Shearman & Redfield in their work on Negligence (sect. 61) is in substance and effect the same.

If the negligence of either plaintiff or defendant is the sole cause of the injury there could be no contributory negligence in the case. The question for the jury is whether the plaintiff could “by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant’s negligence.” Lord Blackburn, L. R. 3 App. Cas. 1207. See, also, 4 Am. & Eng. Encyclopedia of Law, 18 & 19. It is clear that there could be no contributory negligence unless there was also negligence of defendant to which that of plaintiff could contribute. Unless the negligence of defendant was the proximate cause of the injury, there could be no liability. Unless the negligence of plaintiff was a proximate cause of the injury, his action, on the ground of contributory negligence, would not be defeated.

Testing the instruction by these rules, it cannot be approved. It tells the jury that “the negligence of plaintiff, and not that of defendant, must be the proximate or immediate cause of the injury to excuse the defendant from liability.” They were told in effect that this result would follow though “plaintiff was simply guilty of negligence.” The jury may as well have been told that to defeat a recovery on the plea of contributory negligence, it was necessary to find that the negligence of plaintiff was the sole proximate cause of the injury. The instruction ignored entirely concurring or contributory negligence of both parties, which is one essential element of contributory negligence. There are no degrees which distinguish the negligence made necessary by the law to defeat a recovery. And negligence which is proximate or a cause of the injury is sufficient. It does not matter that the concurring and coöperating negligence of defendant was negligence, per se, such as the violation of an ordinance, as in this case, or statute law.

The instruction is also misleading wherein it informs the jury that in order for defendant to establish its plea of contributory negligence “it is not sufficient that the jury may believe from the evidence that plaintiff was simply guilty of negligence,” and as qualified or explained, by what follows, does not correctly declare the law. The negligence to defeat a recovery must be a proximate cause for the injury, but need not be the sole proximate cause.

As the evidence on the issue of contributory negligence was very clear, we think the errors in this instruction prejudicial and must cause a reversal.

Judgment reversed, and cause remanded.

Breese, J., in GALENA, &c. R. Co. v. JACOBS (1858) 20 Illinois, 478, 496–497.

[After citing decisions in other jurisdictions.] It will be seen from these cases that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested by both parties; for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to entitle him to recover.... We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action.

United States Compiled Statutes, 1913, § 8659.

In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. (Act of April 22, 1908, c. 149, § 3, 35 Stat. L. 66.)

England, Workmen’s Compensation Act, 1906, § 1 (c.)

If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.

THE MAX MORRIS Supreme Court of the United States, November 17, 1890. Reported in 137 United States Reports, 1.

The case, as stated by the court, was as follows:—

This was a suit in Admiralty, brought in the District Court of the United States for the Southern District of New York, by Patrick Curry against the steamer Max Morris.

The libel alleged that on the 27th of October, 1884, the libellant was lawfully on board of that vessel, being employed to load coal upon her by the stevedore who had the contract for loading the coal; that, on that day, the libellant, while on the vessel, fell from her bridge to the deck, through the negligence of those in charge of her, in having removed from the bridge the ladder usually leading therefrom to the deck, and in leaving open, and failing to guard, the aperture thus left in the rail on the bridge; that the libellant was not guilty of negligence; and that he was injured by the fall and incapacitated from labor. He claimed $3000 damages.

The answer alleged negligence on the part of the libellant and an absence of negligence on the part of the claimant.

The District Court, held by Judge Brown, entered a decree in favor of the libellant for $150 damages, and $32.33 as one-half of the libellant’s costs, less $47.06 as one-half of the claimant’s costs, making the total award to the libellant $135.27. The opinion of the District Judge is reported in 24 Fed. Rep. 860. It appeared from that that the judge charged to the libellant’s own fault all his pain and suffering and all mere consequential damages, and charged the vessel with his wages, at $2 per day, for seventy-five working days, making $150.

The claimant appealed to the Circuit Court, on the ground that the libel should have been dismissed. It was stipulated between the parties that the facts as stated in the opinion of the District Judge should be taken as the facts proved in the case, and that the appeal should be heard on those facts. Judge Wallace, who heard the case on appeal in the Circuit Court, delivered an opinion, in August, 1886, which is reported in 28 Fed. Rep. 881, affirming the decree of the District Court. No decree was made on that decision, but the case came up again in the Circuit Court on the 14th of March, 1887, the Court being held by Mr. Justice Blatchford and Judge Wallace, when a certificate was signed by them stating as follows: “The libellant was a longshoreman, a resident of the city and county of New York, and was, at the time when the said accident occurred, employed as longshoreman, by the hour, by the stevedore having the contract to load coal on board the steamship Max Morris. The injuries to the libellant were occasioned by his falling through an unguarded opening in the rail on the after-end of the lower bridge. The Max Morris was a British steamship, hailing from Liverpool, England. The defendant contends, as a matter of defence to said libel, that the injuries complained of by libellant were caused by his own negligence. The libellant contends that the injuries were occasioned entirely through the fault of the vessel and her officers. The Court finds, as a matter of fact, that the injuries to the libellant were occasioned partly through his own negligence and partly through the negligence of the officers of the vessel. It now occurs, as a question of law, whether the libellant, under the above facts, is entitled to a decree for divided damages. On this question the opinions of the judges are in conflict.” On motion of the claimant, the question in difference was certified to this Court, and a decree was entered by the Circuit Court affirming the decree of the District Court and awarding to the libellant a recovery of $135.27, with interest from the date of the decree of the District Court, and $26.30 as the libellant’s costs in the Circuit Court, making a total of $172. From that decree the claimant has appealed to this Court. Rev. Stat. §§ 652, 693; Dow v. Johnson, 100 U. S. 158.

Mr. Justice Blatchford, after stating the case as above reported, delivered the opinion of the Court.

The question discussed in the opinions of Judge Brown and Judge Wallace, and presented to us for decision, is whether the libellant was debarred from the recovery of any sum of money, by reason of the fact that his own negligence contributed to the accident, although there was negligence also in the officers of the vessel. The question presented by the certificate is really that question, although stated in the certificate to be whether the libellant, under the facts presented, was entitled to a decree “for divided damages.” It appears from the opinion of the District Judge that he imposed upon the claimant “some part of the damage” which his concurrent negligence occasioned, while it does not appear from the record that the award of the $150 was the result of an equal division of the damages suffered by the libellant, or a giving to him of exactly one-half, or of more or less than one-half, of such damages.

The particular question before us has never been authoritatively passed upon by this Court, and is, as stated by the District Judge in his opinion, whether, in a Court of admiralty, in a case like the present, where personal injuries to the libellant arose from his negligence concurring with that of the vessel, any damages can be awarded, or whether the libel must be dismissed, according to the rule in common-law cases.

The doctrine of an equal division of damages in admiralty, in the case of a collision between two vessels, where both are guilty of fault contributing to the collision, had long been the rule in England, but was first established by this Court in the case of The Schooner Catherine v. Dickinson, 17 How. 170, and has been applied by it to cases where, both vessels being in fault, only one of them was injured, as well as to cases where both were injured, the injured vessel, in the first case, recovering only one-half of its damages, and, in the second case, the damages suffered by the two vessels being added together and equally divided, and the vessel whose damages exceeded such one-half recovering the excess against the other vessel. In the case of The Schooner Catherine v. Dickinson, supra, both vessels being held in fault for the collision, it was said by the Court, speaking by Mr. Justice Nelson, p. 177, that the well-settled rule in the English admiralty was “to divide the loss,” and that “under the circumstances usually attending these disasters” the Court thought “the rule dividing the loss the most just and equitable, and as best tending to induce care and vigilance on both sides, in the navigation.”

[In Atlee v. Packet Co., 21 Wallace, 389, p. 395, Miller, J., said:] “But the plaintiff has elected to bring his suit in an admiralty Court, which has jurisdiction of the case, notwithstanding the concurrent right to sue at law. In this Court the course of proceeding is in many respects different and the rules of decision are different. The mode of pleading is different, the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference as regards this case is the rule for estimating the damages. In the common-law Court the defendant must pay all the damages or none. If there has been on the part of the plaintiffs such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty Court, where there has been such contributory negligence, or, in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably in its influence in securing practical justice as the other; and the plaintiff who has the selection of the forum in which he will litigate cannot complain of the rule of that forum.” This Court, therefore, treated the case as if it had been one of a collision between two vessels.

Some of the cases referred to show that this Court has extended the rule of the division of damages to claims other than those for damages to the vessels which were in fault in a collision.

The rule of the equal apportionment of the loss where both parties were in fault would seem to have been founded upon the difficulty of determining, in such cases, the degree of negligence in the one and the other. It is said by Cleirac (Us et Coutumes de la Mer, p. 68) that such rule of division is a rustic sort of determination, and such as arbiters and amicable compromisers of disputes commonly follow, where they cannot discover the motives of the parties, or when they see faults on both sides.

As to the particular question now presented for decision, there has been a conflict of opinion in the lower Courts of the United States.

All these were cases in admiralty, and were not cases of collision between two vessels. They show an amelioration of the common-law rule, and an extension of the admiralty rule in a direction which we think is manifestly just and proper. Contributory negligence, in a case like the present, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel; and while, on the one hand, the Court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the District Judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libellant, in a case like the present, where their fault is clear, provided the libellant’s fault, though evident, is neither wilful, nor gross, nor inexcusable, and where the other circumstances present a strong case for his relief. We think this rule is applicable to all like cases of marine tort founded upon negligence and prosecuted in admiralty, as in harmony with the rule for the division of damages in cases of collision. The mere fact of the negligence of the libellant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the officers of the vessel, does not debar him entirely from a recovery.

The necessary conclusion is, that the question whether the libellant, upon the facts found, is entitled to a decree for divided damages, must be answered in the affirmative, in accordance with the judgment below. This being the only question certified, and the amount in dispute being insufficient to give this Court jurisdiction of the whole case, our jurisdiction is limited to reviewing this question. Chicago Union Bank v. Kansas City Bank, 136 U. S. 223. Whether, in a case like this, the decree should be for exactly one-half of the damages sustained, or might, in the discretion of the Court, be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it.

Decree affirmed.

Scott, Collisions at Sea where both Ships are in Fault, 13 Law Quarterly Review, 17.

If minor or collateral differences be disregarded, there are amongst civilized nations four different ways of dealing with collision damage where both ships are in fault.

1. To mass the total damage and divide it equally between the two ships.

This is the British rule, and has been the American rule....

2. To leave the loss where it falls.

This is the rule in Germany, Holland, Italy, Spain, and those of the South American States which have derived their law from Spain, and was the rule in Great Britain in our Courts of Common Law previous to the Judicature Act, 1873.

3. To divide the loss proportionally to the value of the vessels in collision.

A kind of general average principle obtaining in Turkey and Egypt.

4. To divide the loss proportionally to the faults of the two vessels.

This is the rule of France, Belgium, Norway, Sweden, Denmark, Portugal, Greece, and Roumania.

See Franck, Collisions at Sea in Relation to International Maritime Law, 12 Law Quarterly Review, 260.

England, Maritime Conventions act (1911), § 1.

1. (1) Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault:

Provided that—

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and

(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed.

BUTTERFIELD v. FORRESTER In the King’s Bench, April 22, 1809. Reported in 11 East, 60.

This was an action on the case for obstructing a highway, by means of which obstruction the plaintiff, who was riding along the road, was thrown down with his horse, and injured, &c. At the trial before Bayley, J., at Derby, it appeared that the defendant, for the purpose of making some repairs to his house, which was close by the roadside at one end of the town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. That the plaintiff left a public house not far distant from the place in question at 8 o’clock in the evening in August, when they were just beginning to light candles, but while there was light enough left to discern the obstruction at one hundred yards distance; and the witness who proved this, said that if the plaintiff had not been riding very hard he might have observed and avoided it; the plaintiff, however, who was riding violently, did not observe it, but rode against it, and fell with his horse and was much hurt in consequence of the accident; and there was no evidence of his being intoxicated at the time. On this evidence Bayley, J., directed the jury, that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant, which they accordingly did.

Vaughan, Serjt., now objected to this direction, on moving for a new trial; and referred to Buller’s Ni. Pri. 26, where the rule is laid down, that “if a man lay logs of wood across a highway, though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action.”

Bayley, J. The plaintiff was proved to be riding as fast as his horse could go, and this was through the streets of Derby. If he had used ordinary care he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault.

Lord Ellenborough, C. J. A party is not to cast himself upon an obstruction which had been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action: an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

Rule refused.

DAVIES v. MANN In the Exchequer, November 4, 1842. Reported in 10 Meeson & Welsby, 546.

Case for negligence. The declaration stated, that the plaintiff theretofore, and at the time of the committing of the grievance thereinafter mentioned, to wit, on, &c., was lawfully possessed of a certain donkey, which said donkey of the plaintiff was then lawfully in a certain highway, and the defendant was then possessed of a certain wagon and of certain horses drawing the same, which said wagon and horses of the defendant were then under the care, government, and direction of a certain then servant of the defendant, in and along the said highway; nevertheless the defendant, by his said servant, so carelessly, negligently, unskilfully, and improperly governed and directed his said wagon and horses, that by and through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, by his said servant, the said wagon and horses of the defendant then ran and struck with great violence against the said donkey of the plaintiff, and thereby then wounded, crushed, and killed the same, &c.

The defendant pleaded not guilty.

At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore-feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of a road about eight yards wide, when the defendant’s wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40s.

Godson now moved for a new trial, on the ground of misdirection. The act of the plaintiff in turning the donkey into the public highway was an illegal one, and, as the injury arose principally from that act, the plaintiff was not entitled to compensation for that injury which, but for his own unlawful act, would never have occurred. [Parke, B. The declaration states that the ass was lawfully on the highway, and the defendant has not traversed that allegation; therefore it must be taken to be admitted.] The principle of law, as deducible from the cases is, that where an accident is the result of faults on both sides, neither party can maintain an action. Thus, in Butterfield v. Forrester, 11 East, 60, it was held that one who is injured by an obstruction on a highway, against which he fell, cannot maintain an action, if it appear that he was riding with great violence and want of ordinary care, without which he might have seen and avoided the obstruction. So, in Vennall v. Garner, 1 C. & M. 21, in case for running down a ship, it was held, that neither party can recover when both are in the wrong; and Bayley, B., there says, “I quite agree that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other.” Here the plaintiff, by fettering the donkey, had prevented him from removing himself out of the way of accident; had his fore-feet been free no accident would probably have happened. Pluckwell v. Wilson, 5 Car. & P. 375; Luxford v. Large, Ibid. 421, and Lynch v. Nurdin, 1 Ad. & E. (N. S.) 29; 4 P. & D. 672, are to the same effect.

Lord Abinger, C. B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.

Parke, B. This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company, 3 M. & W. 246, where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. I am reported to have said in that case, and I believe quite correctly, that “the rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester, that, although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong.” In that case of Bridge v. Grand Junction Railway Company, there was a plea imputing negligence on both sides; here it is otherwise; and the judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that, if they were of opinion that it was caused by the fault of the defendant’s servant in driving too fast or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.

Gurney, B., and Rolfe, B., concurred.

Rule refused.

NORTHERN PACIFIC RAILWAY COMPANY v. JONES United States Circuit Court of Appeals, Ninth Circuit, February 5, 1906. Reported in 144 Federal Reporter, 47.

Gilbert, J. ... The defendant in error was a miner of the age of 34 years, and was in the full possession of his senses. According to his own testimony, he walked upon the railroad track a distance of more than half a mile without once looking back or stopping to listen for an approaching train. In so doing, it must be held that he was guilty of gross negligence, which, irrespective of negligence in the failure of the engineer to discover him on the track, is sufficient to bar his right of recovery. It was no excuse for his failure to take such precautions that the wind was blowing in his face, or that the noise of a waterfall may have deadened the sound of an approaching train. Those circumstances only rendered the use of his senses the more imperative. It was his duty continually to exercise vigilance.

On the authority of Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551–558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408–429, 12 Sup. Ct. 679, 36 L. Ed. 485; and Bogan v. Carolina Central Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418, the defendant in error invokes the doctrine that the contributory negligence of the party injured will not defeat the action, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence. In the first of these decisions, the doctrine was applied in a case where the plaintiff, a wharfinger, was standing with his foot between the timbers of a wharf, to deliver freight to a vessel which was about to make a landing there, and which struck the wharf with such force as to crush his foot. But the court held that the doctrine was applicable, for the reason that the jury might well have been of opinion that, while there was some negligence on the plaintiff’s part in standing where and as he did, yet the officers of the boat knew just where and how he stood, and might have avoided injuring him, if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. In the Ives Case, the plaintiff’s intestate was killed while attempting to cross a railroad track. There was evidence of negligence on the part of the railroad company. On the part of the plaintiff’s intestate there was no evidence as to what precaution he took before placing himself in the place of danger, except that, at a distance of about seventy-six feet from the track, he stopped several minutes, presumably to listen for trains; that while there a train passed; and that, soon after it had passed, and while the noise caused by it was still quite distinct, he proceeded across the track and was struck by another train. The court held that the question of contributory negligence of the plaintiff’s intestate was properly left to the jury, as one to be determined under all the circumstances of the case, but incidentally proceeded to affirm the rule above quoted, citing Davies v. Mann, 10 M. & W. 546; Inland & Seaboard Coasting Co. v. Tolson, and other cases. There was no evidence in the Ives Case that the plaintiff’s intestate was seen by those who were managing the train in time to have avoided the accident. The court, in that case, however, reaffirmed the rule that a traveller, on going upon a railroad track, ought to make vigilant use of his senses of sight and hearing, and listen for signals, and look in the different directions from which a train might come, and said:—

“If by neglect of this duty he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute, or be running at the time at a speed exceeding the legal rate.”

It cannot be contended that in the Ives Case the Supreme Court intended to lay down the broad rule that no contributory negligence of the party injured will defeat his right to recover, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of that negligence. To so hold would be to destroy the whole doctrine of contributory negligence. As applied to the present case, it would mean that the plaintiff in error was bound to know that the defendant in error was upon its track, and that he would not step aside in time to avoid the train. Such is not the doctrine of cases such as Northern Pacific Railroad v. Freeman and the other decisions which we have cited above. The doctrine of “the last clear chance,” so invoked by the defendant in error, originated in Davies v. Mann, in which it was held that the plaintiff’s want of ordinary care in that case did not constitute contributory negligence, because it was a remote cause or mere condition of the injury, and did not proximately contribute to it, and because the negligence of the defendant arose subsequently to that of the plaintiff, and the latter’s negligence was so obvious as to have been discoverable by the exercise of ordinary care. That doctrine has no application to a case where the plaintiff voluntarily places himself in a place of danger from which he has present means of escape, and continues there without exercising precautions which an ordinarily prudent man would exercise. We have nothing here to do with the law applicable to a case where the injured person is found in a place of danger, as upon a railroad trestle, from which he is powerless to extricate himself on the approach of a train, and where his situation is discovered, or ought to have been discovered, by those in charge of the train.

JONES v. CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY Supreme Court, South Carolina, April Term, 1901. Reported in 61 South Carolina Reports, 556.

Action under statute by administrator of Susan V. Jones to recover for her death. Mrs. Jones was killed by a train backing down upon her while she was walking on the railroad track. Plaintiff’s evidence tended to show that the track at that place had been accustomed to be used by the public as a walkway with the knowledge and acquiescence of the defendant company. Mrs. Jones, when killed, was on a trestle. The train was backing down behind her, at a speed of from five to ten miles an hour. There was evidence on plaintiff’s part that no bell was rung, no whistle blown, no warning given of the approach of the train; also that there was no lookout on the train, and no rear-end lights.

Defendant requested the following instruction (No. 6):—

“Even if the defendant was guilty of negligence in the backing of its train, and such negligence was a proximate cause of the injury, if the jury also believe that the said Susan V. Jones showed a want of ordinary care in walking down the track that night, under all the circumstances, and such carelessness was a proximate cause of the injury, she was guilty of contributory negligence, and the plaintiff would not be entitled to recover.”

The judge qualified this instruction by adding:—

“If the deceased, Mrs. Jones, was guilty of negligence in acting as you may find from the testimony that she acted, and if her conduct, her negligence, together with the negligence of the railroad company, contributed to her injury as the proximate cause, then the railroad company would not be responsible, unless the railroad company could have avoided injuring her notwithstanding her negligence.”

The judge charged the jury, in accordance with plaintiff’s ninth request, as follows:—

“Contributory negligence is a matter of defence, and must be proved by defendant by a preponderance of the evidence; but unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence the accident could have been avoided by the use of ordinary care on the part of the defendant, then plaintiff is still entitled to recover.”

Verdict for plaintiff and judgment thereon. Defendant appealed.

Jones, J.... The testimony being undisputed that Mrs. Jones, plaintiff’s intestate, was walking down the railroad track at the time of the injury, the defendant was entitled to have the sixth request to charge above mentioned in the tenth exception submitted to the jury as entirely correct. The remarks by the court down to the clause, “unless the railroad company could have avoided injuring her notwithstanding her negligence,” were not improper nor inconsistent with the request, but the addition of such qualification was erroneous and wholly inconsistent with the well-settled principles governing contributory negligence. The same error was made in the charge excepted to in the eleventh exception above, when the court instructed the jury, “but unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence (that is, negligence which contributed as a proximate cause), the accident could have been avoided by the use of ordinary care on the part of the defendant, then the plaintiff is still entitled to recover.” The charge destroyed the defence of contributory negligence. In every case where there is contributory negligence the defendant could have avoided the injury by ordinary care, for the simple reason that there can be no such thing as contributory negligence unless the defendant be negligent. The error complained of is the same error which was condemned in Cooper v. Ry. Co., 56 S. C. 94. The law in this state is settled that contributory negligence as defined in Cooper’s case, supra, to any extent, will always defeat plaintiff’s recovery, unless the injury is wantonly or wilfully inflicted; for the law cannot measure how much of the injury is due to the plaintiff’s own fault, and will not recompense one for injury resulting to himself from his own misconduct. The objection to the charge is that it instructed the jury that although plaintiff’s negligence contributed to her injury as a proximate cause, she could recover if the defendant by ordinary care could have avoided the injury. Is it not manifest that such a rule would abolish contributory negligence as a defence? The qualifying terms, “unless the railroad company could have avoided injuring her notwithstanding her negligence,” would necessarily mislead a jury; for they would at once say the railroad company could have avoided the injury by not being negligent in the manner alleged in the complaint, by having suitable rear end lights, by a reasonable lookout, by loud warning of the train’s approach, by running at such slow speed as to enable any one warned to get off the track; and then utterly ignore the defendant’s plea and evidence of contributory negligence, because of the instruction that plaintiff, notwithstanding her negligence which proximately caused her injury, could still recover, if the defendant could have avoided the injury. The jury ought to have been instructed without qualification, that if plaintiff was negligent and that negligence contributed as a proximate cause to her injury, she could not recover, unless the injury was wantonly or wilfully inflicted.

The judgment of the Circuit Court is reversed, and the case remanded for a new trial.

CORDINER v. LOS ANGELES TRACTION COMPANY District Court of Appeals, Second District, California, April 16, 1907. Reported in 4 California Appellate Decisions, 480.

Shaw, J. Neither of the defendants questioned the right of plaintiff to recover such damages as she had sustained in the collision, but each contended that the other should be held responsible therefor; and with the view of having the jury pass upon the question, the Los Angeles Railway Company asked the court to instruct the jury, in effect, that notwithstanding the negligence of its motorman in driving his car upon the crossing, still if the traction motorman could, after he saw that it was beyond the power of the motorman of the Los Angeles Railway car to avoid the accident, have, by proper care, prevented the collision, then the negligence of the defendant Los Angeles Traction Company was the proximate cause of the injury. In other words, while admitting that plaintiff’s injury resulted from the collision due to the joint or concurrent acts of negligence of defendants, she must be confined in her recovery for such damages to a judgment rendered against the defendant who had the “last clear chance” to avoid the collision and neglected to act upon it. Appellant seeks to apply the well-established principle that “he who last has a clear opportunity of avoiding the accident, by the exercise of proper care to avoid injuring another, must do so.” Esrey v. S. Pacific Co., 103 Cal. 541. This rule is only applicable to cases where the defence is based upon the contributory negligence of plaintiff due to his want of care in placing himself in a position of danger, and where he may, notwithstanding his negligence, recover from a defendant, who by the exercise of proper care could have avoided the injury. We are unable to perceive why this rule should apply to plaintiff, who was in no way chargeable, by imputation or otherwise, with negligence; nor are we referred to any authority which supports the proposition. Indeed, all the authorities recognize the right of recovery against either or both of the defendants whose concurring acts of negligence united in producing the injury. 1 Shearman & Redfield on Neg. p. 122; 1 Thompson on Neg. p. 75; Doeg v. Cook, 126 Cal. 213; Tompkins v. Clay St. Ry. Co., 66 Cal. 163; Pastene v. Adams, 49 Cal. 87.

STILES v. GEESEY Supreme Court, Pennsylvania, May 30, 1872. Reported in 71 Pennsylvania State Reports, 439.

Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

Error to the Court of Common Pleas of York County.

Action on the case by Jacob B. Geesey against Thomas Stiles, for alleged injury by the negligence of William Stiles, son of defendant, by which plaintiff’s horse and carriage were damaged.

Plaintiff’s wife, driving in a light carriage of plaintiff’s, hitched her horse to a tree on the road, and went into a friend’s house. The carriage projected into the travelled part of the road. Whilst the carriage was so left, the defendant’s son, William Stiles, was driving his father’s team with a loaded wagon along the road. He got off to do something to his wagon; and seeing an acquaintance in a neighboring barn, stopped a moment to exchange a few words with him, the team moving on slowly at the time with the load up the hill, keeping the travelled track of the road till the front horse was just behind plaintiff’s carriage standing unattended where it was left. At this point of time William Stiles was behind his own wagon, at some distance from it; and did not see the obstruction in the road in time to avoid a collision. The wagon collided with the carriage. Stiles halloed “Whoa,” and his horses stopped. In the collision, the plaintiff’s horse was fatally injured.

The third point of the plaintiff, which was affirmed in the charge to the jury by Fisher, P. J., is as follows:—

“That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury by want of ordinary care by Mrs. Geesey, if, in the opinion of the jury such want is imputable to her, should the jury believe that William Stiles was chargeable with negligence in leaving his team and permitting it to go along the highway unattended.”

Verdict for plaintiff.

Read, J. [After stating the facts.] We have taken in brief, the defendant’s statement of his defence, which fairly raises the question of contributory negligence. “It is an incontestable principle that where the injury complained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually in fault there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief:” per Woodward, J., 12 Harris, 469.

“The question presented to the Court or the jury is never one of comparative negligence, as between the parties; nor does very great negligence on the part of a defendant so operate to strike a balance of negligence as to give a judgment to a plaintiff whose own negligence contributes in any degree to the injury.” Wilds v. Hudson River Railroad Co., 24 N. Y. 432.

The third error assigned is that the Court erred in their charge to the jury on the plaintiff’s third point, which was as follows: “That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury, by want of ordinary care by Mrs. Geesey, if in the opinion of the jury such want is imputable to her, should the jury believe William Stiles was chargeable with negligence, in leaving his team and permitting it to go along the highway unattended,” which point the Court affirmed, holding that although there was contributory negligence on the part of the plaintiff, he was entitled to recover from the defendant on account of his negligence. This was a binding instruction upon the jury, leaving nothing for them to inquire into practically, except the negligence of the defendant. In this the Court committed a clear error, and the judgment must be reversed, and venire de novo awarded.

RADLEY v. LONDON AND NORTH WESTERN RAILWAY COMPANY In the House of Lords, December 1, 1876. Reported in Law Reports, 1 Appeal Cases, 754.

This was an appeal against a decision of the Court of Exchequer Chamber.

The appellants were the plaintiffs in an action brought in the Court of Exchequer, in which they claimed to recover damages for the destruction of a bridge occasioned, as they alleged, by the negligence of the defendants’ servants. The plaintiffs were owners of the Sankey Brook Colliery, in the county of Lancaster, which was situated near a branch line of the defendants’ railway. There was a siding belonging to the plaintiffs, which communicated with the railway, and the defendants’ servants were in the habit of taking trucks loaded with coals from this siding, in order to run them on the railway to forward them to their destination, and also of bringing back empty trucks and running them from the railway on to the siding. On Saturday after working hours, when all the colliery men had gone away, the defendants’ servants ran some of the plaintiffs’ empty trucks from the railway upon the siding and there left them. In that position they remained. One of the watchmen employed by the plaintiffs knew that they were there, but nothing was done to remove them to a different place. In the first of these trucks had been placed a truck which had broken down, and the height of the two trucks combined was nearly eleven feet. There was, in advance of the spot where the trucks had been left, a bridge placed over a part of the siding, the span of which bridge was about eight feet from the ground. On Sunday afternoon the defendants’ servants brought a long line of empty trucks belonging to the plaintiffs, and ran them on the line of the siding, pushing on the first set of trucks in front. Some resistance was perceived, and the pushing force of the engine employed was increased, and the result was, as the two trucks at the head of the line could not pass under the bridge, they struck with great force against it and broke it down. For the damage thereby occasioned this action was brought. The defence was contributory negligence; it being insisted that the plaintiffs ought to have moved the first set of trucks to a safe place, or at all events, not to have left the truck with the disabled truck in it so as to be likely to occasion mischief. At the trial before Mr. Justice Brett, at the Summer Assizes at Liverpool, in 1873, the learned judge told the jury that “you must be satisfied that the plaintiffs’ servants did not do anything which persons of ordinary care, under the circumstances, would not do, or that they omitted to do something which persons of ordinary care would do.... It is for you to say entirely as to both points; but the law is this, the plaintiffs must have satisfied you that this happened by the negligence of the defendants’ servants, and without any contributory negligence of their own, in other words that it was solely by the negligence of the defendants’ servants. If you think it was, then your verdict will be for the plaintiffs. If you think it was not solely by the negligence of the defendants’ servants, your verdict must be for the defendants.” The jurors having, on this direction, stated that they thought there was contributory negligence on the part of the plaintiffs, the learned judge directed that the verdict should be entered for the defendants, but reserved leave for the plaintiffs to move.

A rule having been obtained for a new trial, it was after argument before Barons Bramwell and Amphlett made absolute. On appeal to the Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush, Brett, and Archibald (diss. Justice Denman), reversed. This appeal was then brought.

Lord Penzance. My Lords, the action out of which this appeal arises is an action charging the defendants with negligence (through their servants) in so managing the shunting of some empty coal-wagons as to knock down a bridge and some staging and some colliery head-gearing, which stood upon it, and belonged to the plaintiffs.

The first question on the appeal is, whether the Court of Exchequer Chamber was right in holding that there was any evidence, proper to be submitted to the jury, tending to the conclusion that the plaintiffs themselves had been guilty of some negligence in the matter, and that such negligence had contributed to produce the accident and injury of which they complained.

The general facts of the case, the particular facts which gave rise to the imputation of negligence, and the contention of both sides as to the fair result of these facts, are stated in the judgment of the Court of Exchequer delivered by Baron Bramwell. His Lordship here read the statement from Mr. Baron Bramwell’s judgment.

It may be admitted that this is a fair and full statement of the arguments and considerations on the one side, and on the other, upon which the question of the plaintiffs’ negligence had to be decided. But it had to be decided by the jurors, and not by the Court, and I am unable to perceive any reason why the learned judge did wrong in submitting these arguments and considerations to their decision accordingly. The bare statement of them is enough to show that there were in the case facts and circumstances sufficient at least to raise the question of negligence, whether they were a sufficient proof of negligence or not.

The decision, therefore, of the Exchequer Chamber upon this matter ought, I think, to be upheld.

The remaining question is whether the learned judge properly directed the jury in point of law. The law in these cases of negligence is, as was said in the Court of Exchequer Chamber, perfectly well settled and beyond dispute.

The first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident.

But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiffs’ negligence will not excuse him.

This proposition, as one of law, cannot be questioned. It was decided in the case of Davies v. Mann, 10 M. & W. 546, supported in that of Tuff v. Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322, and other cases, and has been universally applied in cases of this character without question.

The only point for consideration, therefore, is whether the learned judge properly presented it to the mind of the jury.

It seems impossible to say that he did so. At the beginning of his summing-up he laid down the following as the propositions of law which governed the case: It is for the plaintiffs to satisfy you that this accident happened through the negligence of the defendants’ servants, and as between them and the defendants, that it was solely through the negligence of the defendants’ servants. They must satisfy you that it was solely by the negligence of the defendants’ servants, or, in other words, that there was no negligence on the part of their servants contributing to the accident; so that, if you think that both sides were negligent, so as to contribute to the accident, then the plaintiffs cannot recover.

This language is perfectly plain and perfectly unqualified, and in case the jurors thought there was any contributory negligence on the part of the plaintiffs’ servants, they could not, without disregarding the direction of the learned judge, have found in the plaintiffs’ favor, however negligent the defendants had been, or however easily they might with ordinary care have avoided any accident at all.

The learned judge then went on to describe to the jury what it was that might properly be considered to constitute negligence, first in the conduct of the defendants, and then in the conduct of the plaintiffs; and having done this, he again reverted to the governing propositions of law, as follows: “There seem to be two views. It is for you to say entirely as to both points. But the law is this, the plaintiff must have satisfied you that this happened by the negligence of the defendants’ servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants’ servants. If you think it was, then your verdict will be for the plaintiffs. If you think it was not solely by the negligence of the defendants’ servants, your verdict must be for the defendants.”

This, again, is entirely without qualification, and the undoubted meaning of it is, that if there was any contributory negligence on the part of the plaintiffs, they could in no case recover. Such a statement of the law is contrary to the doctrine established in the case of Davies v. Mann, 10 M. & W. 546, and the other cases above alluded to, and in no part of the summing-up is that doctrine anywhere to be found. The learned counsel were unable to point out any passage addressed to it.

It is true that in part of his summing-up the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way by violence through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinal care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. This substantial defect of the learned judge’s charge is that that question was never put to the jury.

On this point, therefore, I propose to move that your Lordships should reverse the decision of the Exchequer Chamber, and direct a new trial.

The Lord Chancellor (Lord Cairns). My Lords, I have had the advantage of considering the opinion which has just been expressed to your Lordships in this case by my noble and learned friend, and, concurring as I do with every word of it, I do not think it is necessary that I should do more than say that I hope your Lordships will agree to the motion which he has proposed.

Lord Blackburn. My Lords, I agree entirely with the noble Lord who has first spoken as to what were the proper questions for the jury in this case, and that they were not decided by the jury. I am inclined to think that the learned judge did in part of his summing-up sufficiently ask the proper questions, had they been answered, but unfortunately he failed to have an answer from the jury to those questions, it appearing by the case that the only finding was as to the plaintiffs’ negligence.

I agree, therefore, in the result that there should be a new trial.

Lord Gordon. My Lords, I entirely concur in the motion which has been submitted to your Lordships by my noble and learned friend on the other side of the House. The question is one which has given rise to some difficulty in the courts of Scotland, but I think that it is very likely that the opinion which has been expressed in this case will be regarded as a very useful authority for guiding their decisions.

Judgment of the Court of Exchequer Chamber reversed.
Judgment of the Court of Exchequer restored, and a new trial ordered, with costs.
Lords’ Journals, December 1, 1876.

NASHUA IRON AND STEEL CO. v. WORCESTER & NASHUA RAILROAD CO. Supreme Court, New Hampshire, June, 1882. Reported in 62 New Hampshire Reports, 159.

Case. Demurrer to the declaration.

Carpenter, J. The declaration alleges that by the defendants’ careless management of their engine and cars, the plaintiffs’ horse was frightened, and caused to run upon and injure Ursula Clapp, who was without fault; that Clapp brought her action therefor against the plaintiffs, and recovered judgment for damages, which they paid; that the defendants had notice of, and were requested to defend, the suit. The defendants demur. Inasmuch as Clapp could not have recovered against the plaintiffs unless they were in fault (Brown v. Collins, 53 N. H. 442; Lyons v. Child, 61 N. H. 72), it must be taken that their negligence co-operated with that of the defendants to produce the injury. If the plaintiffs were not liable in that action because their negligence was not, and the defendants’ negligence was, the cause of the accident, the objection is not now open to the defendants. Littleton v. Richardson, 34 N. H. 179. In relation to Clapp, both parties were wrong-doers. She could pursue her remedy against either or both of them at her election. Burrows v. March Gas Co., L. R. 5 Ex. 67, 71.

One of several wrong-doers, who has been compelled to pay the damages caused by the wrong, has in general no remedy against the others. He cannot make his own misconduct the ground of an action in his favor. To this proposition there are, it has been said, so many exceptions, that it can hardly, with propriety, be called a general rule. Bailey v. Bussing, 28 Conn. 455. Its application is restricted to cases where the person seeking redress knew, or is presumed to have known, that the act for which he has been mulcted in damages was unlawful. Jacobs v. Pollard, 10 Cush. 287, 289; Coventry v. Barton, 17 Johns. 142. In many instances several parties may be liable in law to the person injured, while as between themselves some of them are not wrong-doers at all; and the equity of the guiltless to require the actual wrong-doer to respond for all the damages, and the equally innocent to contribute his proportion, is complete. Wooley v. Batte, 2 C. & P. 417; Pearson v. Skelton, 1 M. & W. 504; Betts v. Gibbins, 2 A. & E. 57; Adamson v. Jarvis, 4 Bing. 66; Avery v. Halsey, 14 Pick. 174; Gray v. Boston Gas Light Co., 114 Mass. 149; Churchill v. Holt, 127 Mass. 165, and 131 Mass. 67; Bailey v. Bussing, supra; Smith v. Foran, 43 Conn. 244. These cases, instead of being exceptions to the rule, seem rather not to fall within it. The right of recovery rests in the one case upon the principle that he who without fault on his part is injured by another’s wrongful act is entitled to indemnity, and in the other upon the doctrine of contribution. One of two masters, who is compelled to pay damages by reason of his servant’s negligence, may have contribution from the other because he has removed a burden common to both. They may recover indemnity of the servant, because as against him they are without fault, and are directly injured by his misconduct. One who is so far innocent that he can recover for an injury to his person or property, may also recover whatever sum he, by reason of his relation to the wrong, has been compelled to pay to a third person. If the plaintiffs could recover for an injury to their horse, caused by the accident, they may recover the sum which they paid to Clapp.

The declaration is general. It does not disclose the particulars of the plaintiffs’ negligence, by reason of which Clapp recovered against them. Under it, cases differing widely in their facts and legal aspects may be proved. Among others possible, it may be shown that the horse was in the charge of the plaintiffs’ servants, who might have prevented its fright or its running after the fright, or if they could do neither, that they might nevertheless have avoided the injury to Clapp; or it may appear that the plaintiffs’ negligence consisted solely in permitting the horse, whether attended or unattended by their servants, to be at the place where it was at the time of the fright. The generality of the declaration does not render it bad in law. Corey v. Bath, 35 N. H. 531. If the plaintiffs are entitled to judgment upon any state of facts provable under it, the demurrer must be overruled. Whether the plaintiffs can recover in any case, and if so, in what cases, possible to be proved under the declaration, are speculative or hypothetical questions, of which none may, and all cannot, arise. They involve substantially the whole subject of the law relating to mutual negligence. The case might properly be discharged without considering them (Smith v. Cudworth, 24 Pick. 196), and the parties required to present by the pleadings, or by a verdict, the facts upon which their rights depend. A brief consideration, however, of the general questions involved, may, it is thought, facilitate a trial, and save expense to the parties.

Ordinary care is such care as persons of average prudence exercise under like circumstances. Tucker v. Henniker, 41 N. H. 317; Sleeper v. Sandown, 52 N. H. 244; Aldrich v. Monroe, 60 N. H. 118. Every one in the conduct of his lawful business is bound to act with this degree of care, and if he fails to do so is responsible for the consequences. It follows that a person injured by reason of his want of ordinary care, or (since the law makes no apportionment between actual wrong-doers) by the joint operation of his own and another’s negligence, is remediless. This general rule of law justly applied to the facts determines, it is believed, the rights of the parties in all actions for negligence. In its application, the law, as in various other cases, deals with the immediate cause,—the cause as distinguished from the occasion,—and looks at the natural and reasonably to be expected effects. Cowles v. Kidder, 24 N. H. 383; Hooksett v. Company, 44 N. H. 108; McIntire v. Plaisted, 57 N. H. 608; Solomon v. Chesley, 59 N. H. 243; China v. Southwick, 12 Me. 238; Lowery v. Western U. Tel. Co., 60 N. Y. 198; Rigby v. Hewitt, 5 Exch. 243; Blyth v. Birmingham Waterworks Co., 11 Exch. 781; Bank of Ireland v. Evans’s Charities, 5 H. L. Ca. 389, 410, 411; Ionides v. Marine Ins. Co., 14 C. B. N. S. 259; Romney Marsh v. Trinity House, L. R. 5 Ex. 204; Holmes v. Mather, L. R. 10 Ex. 268; Sharp v. Powell, L. R. 7 C. P. 253; Pearson v. Cox, 2 C. P. Div. 369; Tutein v. Hurley, 98 Mass. 211; Bro. Leg. Max. 215.

Actions for negligence may, for convenience of consideration, be separated into four classes, namely,—where, upon the occasion of the injury complained of (1) the plaintiff, (2) the defendant, or (3) neither party was present, and (4) where both parties were present. In all of them it may happen that both parties were more or less negligent. Actions upon the statute of highways are a common example of the first class. The negligence of the defendant, however great, does not relieve the plaintiff from the duty of exercising ordinary care. If, notwithstanding the defective condition of the highway, this degree of care on the part of the plaintiff would prevent the accident, his and not the defendant’s negligence, though but for the latter it could not happen, is, in the eye of the law, its sole cause. Farnum v. Concord, 2 N. H. 394; Butterfield v. Forrester, 11 East, 60. In this class of cases, an injury which the plaintiff’s negligence contributes to produce could not happen without it. The not uncommon statement that the plaintiff cannot recover if his negligence contributes in any degree to cause the injury, is strictly correct, although the word “contribute” may be, as Crompton, J., in Tuff v. Warman, 5 C. B. N. S. 584, says it is, “a very unsafe word to use,” and “much too loose.” The result is the same whether the plaintiff acts with full knowledge of the danger, or, by reason of a want of proper care, fails to discover it seasonably. If he is not bound to anticipate, and in advance provide for, another’s negligence, he may not wilfully or negligently shut his eyes against its possibility. He is bound to be informed of everything which ordinary care would disclose to him. He can no more recover for an injury caused by driving into a dangerous pit, of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into a known pit. Norris v. Litchfield, 35 N. H. 271; Clark v. Barrington, 41 N. H. 44; Tucker v. Henniker, 41 N. H. 317; Winship v. Enfield, 42 N. H. 213, 214; Underhill v. Manchester, 45 N. H. 220.

The defendant’s negligence being found or conceded, the remaining question is, whether the plaintiff, by the exercise of ordinary care, could have escaped the injury. If he could not, he is free from fault, and is entitled to recover. If he could, he not only cannot recover for his own injury, but is himself liable to the other party, if the latter is injured; and the case becomes one of the second class, of which Davies v. Mann, 10 M. & W. 546, is an instance. The defendant is liable here for the same reason that, as plaintiff, he could not recover,—that is to say, because ordinary care on his part would have prevented the injury. The fact that one has carelessly exposed his property in a dangerous situation does not absolve his neighbors from the obligation of conducting themselves in regard to it with ordinary care. An injury which that degree of care would prevent is caused by the want of it, and not by the owner’s negligence in leaving his property in a perilous position. A surgeon, called to set a leg carelessly broken, cannot successfully urge, in answer to a suit for mal-practice, that the patient’s negligence in breaking his leg caused the crooked or shortened limb. Lannen v. Albany Gas-light Co., 44 N. Y. 459, 463; Hibbard v. Thompson, 109 Mass. 286, 289. So far as the question of civil liability is concerned, there is no distinction, except it may be in the measure of damages (Fay v. Parker, 53 N. H. 342, Bixby v. Dunlap, 56 N. H. 456), between wilful and negligent wrongs. One who, without reasonable necessity, kills his neighbor’s ox, found trespassing in his field, is equally liable whether he does it purposely or carelessly. Aldrich v. Wright, 53 N. H. 398; McIntire v. Plaisted, 57 N. H. 606; Cool. Torts, 688–694. Mann would be no more liable for wilfully shooting the fettered ass which Davies has carelessly left in the public highway, than he is for the running over it, which, by ordinary care, he could avoid. The owner’s negligence, in permitting the ox to stray and in leaving the ass fettered in the street, although without it the injury would not happen, is no more the cause, in a legal sense, of the negligent than of the wilful wrong. In each case alike,—as in that of the broken leg,—it merely affords the wrong-doer an opportunity to do the mischief. Bartlett v. Boston Gas-light Co., 117 Mass. 533; Clayards v. Dethick, 12 Q. B. 439, 445.

Knowledge, or its equivalent, culpable ignorance, and ignorance without fault of the situation, are circumstances by which, among others, the requisite measure of vigilance is determined. Griffin v. Auburn, 58 N. H. 121, 124; Palmer v. Dearing, 93 N. Y. 7; Robinson v. Cone, 22 Vt. 213. The question of contributory negligence is not involved. The wrong, if any, is the negligent injury of property carelessly exposed to danger. The only question is, whether the defendant could have prevented it by ordinary care. If he could not, he is without fault, and not liable. If he could, his negligence is, in law, the sole cause of the injury. Davies v. Mann, 10 M. & W. 546; Radley v. London, &c. Railway, 1 App. Ca. 754; Mayor of Colchester v. Brooke, 7 Q. B. 377; Isbell v. N. Y. & N. H. Railroad, 27 Conn. 393; Trow v. Vt. Central Railroad, 24 Vt. 487; Harlan v. St. Louis, &c. Railroad, 64 Mo. 480; Kerwhacker v. Cleveland, &c. Railroad, 3 Ohio St. 172.

The law is not affected by the presence or the absence of the parties, nor by the difficulty of applying it to complicated facts. To warrant a recovery where both parties are present at the time of the injury, as well as in other cases, ability on the part of the defendant must concur with non-ability on the part of the plaintiff to prevent it by ordinary care. Their duty to exercise this degree of care is equal and reciprocal; neither is exonerated from his obligation by the present or previous misconduct of the other. The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property, similarly situated in his absence. He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent, “present and acting at the time” (State v. Railroad, 52 N. H. 528, 557; White v. Winnisimmet Co., 7 Cush. 155, 157; Robinson v. Cone, 22 Vt. 213), is legally without fault, and it is immaterial whether his inability results from his absence, previous negligence, or other cause. On the other hand, his neglect to prevent it, if he can, is the sole or co-operating cause of the injury. No one can justly complain of another’s negligence, which, but for his own wrongful interposition, would be harmless. Parker v. Adams, 12 Met. 415.

Cases of this class assume a great variety of aspects. While all are governed by the fundamental principle, that he only who by ordinary care can and does not prevent an injury, is responsible in damages, it is impossible to formulate a rule in language universally applicable. A statement of the law correct in its application to one state of facts may be inaccurate when applied to another. Instructions to the jury proper and sufficient in a case of the first class, would be not only inappropriate but incorrect in one of the second class. The doctrine laid down in Tuff v. Warman, 5 C. B. N. S. 573, 585, however just and well suited to the evidence in that case, was held erroneous as applied to the facts in Murphy v. Deane, 101 Mass. 455, 464–466, and, as a general proposition, seems indefensible.

An accident may result from a hazardous situation caused by the previous negligence of one or both parties. If, at the time of the injury, the defendant is unable to remove the danger which his negligence has created, the case becomes, in substance, one of the first class; the plaintiff can recover or not, according as, by ordinary care, he can or cannot protect himself from the natural consequences of the situation. If the plaintiff, in like manner, is unable to obviate the danger which his prior negligence has produced, the case becomes, substantially, one of the second class; he can recover or not, according as the defendant, by the same degree of care, can or cannot avoid the natural consequences of such negligence. If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter is incuria, but not incuria dans locum injuriae,—it is the cause of the danger; the former is the cause of the injury. Metropolitan Railway v. Jackson, 3 App. Ca. 193, 198; Dublin, &c. Railway v. Slattery, 3 App. Ca. 1155, 1166; Davey v. London, &c. Railway, 12 Q. B. Div. 70, 76; Churchill v. Rosebeck, 15 Conn. 359, 363–365.

If a person, who by his carelessness is put in a position perilous to himself and to others, while in that position does all that a person of average prudence could, he is guilty of no wrong towards another who embraces the opportunity negligently to injure him, or who receives an injury which proper care on his part would prevent. It would doubtless be esteemed gross carelessness to navigate the Atlantic in a vessel without a rudder, but if the owner, while sailing his rudderless ship with ordinary care, is negligently run down by a steamer, the latter must pay the damages, and can recover none if it is injured. Dowell v. Steam Navigation Co., 5 E. & B. 195; Haley v. Earle, 30 N. Y. 208; Hoffman v. Union Ferry Co., 47 N. Y. 176. If the vessel, by reason of its lack of a rudder, runs upon and injures the steamer, both being in the exercise of ordinary care at the time, the former must pay the damages. He who by his negligence has produced a dangerous situation is responsible for an injury resulting from it to one who is without fault.

If, at the time of the injury, each of the parties, or, in the absence of antecedent negligence, if neither of them could prevent it by ordinary care, there can be no recovery. The comparatively rare cases of simultaneous negligence will ordinarily fall under one or the other of these heads. If the accident results from the combined effect of the negligence of both parties, that of neither alone being sufficient to produce it, proof by the plaintiff that due care on the part of the defendant would have prevented it will not entitle him to recover, because like care on his own part would have had the same effect. If the misconduct of each party is an adequate cause of the injury, so that it would have occurred by reason of either’s negligence without the co-operating fault of the other, proof by the plaintiff that by due care he could not have prevented it will not entitle him to recover, because no more could the defendant have prevented it by like care. Murphy v. Deane, 101 Mass. 464, 465; Churchill v. Holt, 131 Mass. 67. In each case alike they are equally in fault. To warrant a recovery, the plaintiff must establish both propositions, namely, that by ordinary care he could not, and the defendant could, have prevented the injury. State v. Railroad, 52 N. H. 528; Bridge v. Grand Junction Railway, 3 M. & W. 244; Dowell v. Steam Navigation Co., 5 E. & B. 195; Tuff v. Warman, 5 C. B. N. S. 573; Davey v. London, &c. Railway, 12 Q. B. Div. 70; Munroe v. Leach, 7 Met. 274; Lucas v. New Bedford, &c. Railroad, 6 Gray, 64; Murphy v. Deane, 101 Mass. 455; Hall v. Ripley, 119 Mass. 135; Button v. Hudson, &c. Railroad, 18 N. Y. 248; Austin v. N. J. Steamboat Co., 43 N. Y. 75; Barker v. Savage, 45 N. Y. 194; Cool. Torts, 674, 675, and cases cited.

In the comparatively unfrequent cases of the third class, a negligent plaintiff can seldom, if ever, recover. Where both parties are careless, they are usually, if not always, equally in fault; ordinary care on the part of either would prevent the injury. Not being present on the occasion of the accident, neither can, in general, guard against the consequences of the other’s negligence. Blyth v. Topham, Cro. Jac. 158; Sybray v. White, 1 M. & W. 435; Williams v. Groucott, 4 B. & S. 149; Lee v. Riley, 18 C. B. N. S. 722; Wilson v. Newberry, L. R. 7 Q. B. 31; Lawrence v. Jenkins, L. R. 8 Q. B. 274; Firth v. Bowling Iron Co., 3 C. P. Div. 254; Crowhurst v. Amersham Burial Board, 4 Ex. Div. 5; Bush v. Brainard, 1 Cow. 78; Lyons v. Merrick, 105 Mass. 71; Page v. Olcott, 13 N. H. 399.

If there are actions for negligence of such a character that the rights of the parties are not determinable by the application of these principles, the present case is not one of them. If, notwithstanding the defendants’ negligence, the plaintiffs, by ordinary care, could have prevented the fright of the horse, or its running, after the fright, or, in the absence of ability to do either, if they could have avoided the running upon and injury to Clapp, their misconduct, and not that of the defendants, was the cause of the accident, and they cannot recover. On the other hand, if the plaintiffs’ carelessness consisted solely in permitting the horse to be where it was at the time, and ordinary care by the defendants would have prevented its fright, or, if the plaintiffs, by proof of any state of facts competent to be shown under the declaration, can make it appear that at the time of the occurrence they could not, and the defendants could, by such care have prevented the accident, they are entitled to recover.

Demurrer overruled.

OATES v. METROPOLITAN STREET RAILWAY COMPANY Supreme Court, Missouri, May 21, 1902. Reported in 168 Missouri Reports, 535, 547–549.

Marshall, J.... Instructions three and seven given for the defendant sharply drew a distinction between the negligence of the defendant and the contributory negligence of the plaintiff. Those instructions declared the law to be that the defendant was not liable unless its negligence was the direct cause of the injury, while the plaintiff was not entitled to recover if his negligence “but contributes to the injury.” That is, that the defendant was liable only for direct negligence, while the plaintiff was cut off from recovery if he was guilty of any negligence, however slight or remote or indirect it may have been.

The law is that a defendant is liable if his negligence was the direct and proximate cause of the injury, unless the plaintiff has also been guilty of such negligence as directly contributed to the happening of the injury, and the defendant is not liable no matter how negligent he may have been if the plaintiff’s negligence has thus contributed to the injury, for the doctrine of comparative negligence has never obtained in this State. Hurt v. Railroad, 94 Mo. 264. In each instance the negligence and the contributory negligence must be direct, that is, must have entered into and formed a part of the efficient cause of the accident. Hoepper v. Hotel Co., 142 Mo. 388; Beach on Contr. Neg. (2 ed.), sec. 24; Matthews v. Toledo, 21 Ohio Cir. Ct. Rep. 69; Dunkman v. Railroad, 16 Mo. App. 548; Corcoran v. Railroad, 105 Mo. 399; Murray v. Railroad, 101 Mo. 236; Kellny v. Railroad, 101 Mo. 67; Hicks v. Railroad, 46 Mo. App. 403; Pinnell v. Railroad, 49 Mo. App. 170; Meyers v. Railroad, 59 Mo. 223.

Mere negligence, without any resulting damage, no more bars a plaintiff’s recovery than it creates a liability against a defendant. Dickson v. Railroad, 124 Mo. 140. Remote negligence which does not become an efficient cause, neither creates nor bars a liability. Kennedy v. Railroad, 36 Mo. 351; Meyers v. Railroad, 59 Mo. 223. It is only where the plaintiff’s negligence contributes directly to his injury that it precludes his recovery therefor, Moore v. Railroad, 126 Mo. 265. And the plaintiff’s contributory negligence must mingle with the defendant’s negligence as a direct and proximate cause in order to bar a recovery. Nolan v. Shickle, 69 Mo. 336; Frick v. Railroad, 75 Mo. 542.

These instructions were, therefore, erroneous, and as the jury was misdirected and as the plaintiff had made out a prima facie case, he was entitled to have the law properly declared to the jury, and the trial court did right in granting a new trial.

Carpenter, J., in NIEBOER v. DETROIT ELECTRIC RAILWAY (1901) 128 Michigan, 486, 491, 492.

Carpenter, J. “... The law by which it is determined whether or not the contributory negligence of the plaintiff bars recovery is very uncertain. The adjudicated cases are by no means harmonious, and there is an irreconcilable conflict between the principles announced by eminent judges and the text-book writers. It has been stated that the plaintiff cannot recover if the injury complained of would not have occurred without his negligence. It has also been stated that plaintiff’s negligence will not bar his recovery if due care on the part of the defendant would have prevented the injury. If the first statement is correct, contributory negligence always prevents a recovery; if the second statement is correct, contributory negligence never prevents recovery. The truth is that the first statement can be correctly applied only in cases of simultaneous negligence, as in the case of an injury to a person while crossing a railway in consequence of his own and the railway company’s negligence. The second statement can be correctly applied only in cases of successive negligence, as in the famous Donkey Case, of Davies v. Mann, 10 Mees. & W. 546, where defendant negligently ran into and injured the plaintiff’s donkey, which plaintiff had negligently permitted to go unattended on the highway. The test almost universally approved is whether or not plaintiff’s negligence is the proximate cause of his injury. If it is, he cannot recover; if it is not, he can. Even this test has been criticised on the ground that the term ‘proximate’ is misleading. I think this criticism just and important. The word ‘proximate’ is ordinarily used to indicate the relation between defendant’s negligence and the plaintiff’s injury. As so used, it has not the same meaning that it has when used to indicate the relation between plaintiff’s negligence and plaintiff’s injury. To illustrate, suppose in the case of Davies v. Mann, above referred to, that, as a result of the collision between the cart and the donkey, a third person had been injured; I think all will agree that the owner of the donkey, as well as the owner of the cart, would have been liable. See Lynch v. Nurdin, 1 Q. B. (N. S.) 29. And we have already seen that the negligence of the owner of the donkey was not so related to the collision as to preclude recovery in a suit by him against the owner of the cart. As used in relation to contributory negligence, the term ‘proximate’ simply means that in some way the relation between plaintiff’s negligence and his injury is more remote than that between defendant’s negligence and the injury.”

DROWN v. NORTHERN OHIO TRACTION COMPANY Supreme Court, Ohio, May 7, 1907. Reported in 76 Ohio State Reports, 234.

Action for damage done to plaintiff’s buggy by an electric car which came up behind it and hit it. Answer: denying that defendant was negligent, and alleging negligence on plaintiff’s part.

On the trial, it appeared that Hardy, plaintiff’s driver, drove upon the track without looking behind to see if a car was coming.

Defendant requested the following instructions:—

(3) If the jury find from the evidence that the plaintiff, through his agent, Hardy, and the defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant.

(4) If the jury find that the negligence of both plaintiff’s agent and the defendant combined so as to directly cause the injury complained of by plaintiff, then your verdict should be for the defendant.

These requests to instruct were refused.

The court, among other instructions, charged in substance as follows:—

If you find that the motorman could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car Hardy’s team was knocked down and injured, it would be such negligence on the part of the defendant as would entitle the plaintiff to recover, provided Hardy was free from contributory negligence on his part.

If Hardy was on this track driving south, and you find that he was negligent in being on it as he was, his failure to look or failure to watch to avoid injury, if he was negligent, would not prevent him from recovering in this suit, if the motorman, after discovering him in that position, could have, by the use of reasonable and ordinary care, avoided the injury by stopping the car. [This was a restatement in concrete form of an abstract proposition already stated in the charge.]

In the Common Pleas Court there was a verdict for plaintiff and judgment thereon. The Circuit Court reversed the judgment of the Common Pleas. Plaintiff brought error.

Davis, J. Under the issues in this case, evidence was introduced tending to prove that the plaintiff’s agent was guilty of negligence directly contributing to the injury to plaintiff’s property. If the driver of the plaintiff’s team, immediately upon entering Main Street, and without afterwards looking to the north, as he admits, drove southward upon the track until the car coming from the north overtook and collided with the buggy, he was negligent; because the street was open and unobstructed for from two hundred to two hundred and fifty feet from the point at which he entered upon it, and it was not necessary for him to go upon the street railway track, and because, the night being dark, he unnecessarily put himself in a place of obvious danger and continued therein until the moment of the accident, without looking out for an approaching car or doing anything whatever to avoid injury, apparently risking his life and the property of his principal upon the presumption that the defendant’s employees would make no mistakes nor be guilty of any negligence. If, on the other hand, he drove along the street until he came to the obstruction and then turned out upon the track to go around it without again looking, as his own testimony shows that he did not, and was then almost in the same instant struck by the car, he was negligent. Upon either hypothesis, assuming that the defendant was negligent in not keeping a proper lookout, or was otherwise not exercising ordinary care to prevent collision with persons lawfully on its track, the plaintiff could not recover, if it should appear in the case that the negligence of both is contemporaneous and continuing until after the moment of the accident, because, in such case the negligence of each is a direct cause of the injury without which it would not have occurred, rendering it impracticable in all such instances, if not impossible, to apportion the responsibility and the damages. Suppose, for example, that not only the buggy and horses had been injured, but the defendant’s car also, by what standard could the extent of liability of either party be determined? Timmons v. The Central Ohio Railroad Co., 6 Ohio St. 105; Village of Conneaut v. Naef, 54 Ohio St. 529, 531. In short, there can be no recovery in such a case unless the whole doctrine of contributory negligence, a doctrine founded in reason and justice, should be abolished.

Under these circumstances, therefore, it was not sufficient to say to the jury that if they should find that the motorman who had charge of the car which struck the team, could by the exercise of ordinary care have seen the team and could have stopped the car and that by reason of the failure to do so the team was injured, it would be such negligence by the defendant as would entitle the plaintiff to recover, provided that the plaintiff’s driver was “free from contributory negligence.” The defendant had the right to have the jury specifically instructed, as it requested, that if the jury should find from the evidence that both the plaintiff and the defendant, through their agents, were negligent, and that the negligence of both combined so as to directly cause the injury complained of, then the verdict should be for the defendant. The court refused to so instruct the jury, and the circuit court correctly held that the refusal to so charge was erroneous.

The error in refusing the defendant’s request to charge, was extended and made much more prejudicial when the court, after giving instructions as to contributory negligence by the plaintiff in very general terms, proceeded to impress upon the jury, by repetition and with some emphasis, the doctrine known as “the last chance.” This doctrine is logically irreconcilable with the doctrine of contributory negligence, and accordingly it has been vigorously criticised and warmly defended. Probably, as in many such controversies, the truth lies in middle ground; but it is certain that the rule is applicable only in exceptional cases, and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases, in connection with, and often as a part of, instructions upon the subject of contributory negligence, is misleading and dangerous.

This confusion seems to arise either from misapprehension of the law or a want of definite thinking. The doctrine of the “last chance” has been clearly defined by a well-known text-writer as follows: “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travellers at highway crossings—as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be—the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.” 2 Thompson, Negligence, sec. 1629. The italics are the author’s. Now, it must be apparent upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of “the last clear chance.” A good illustration is found in the case of Railroad Co. v. Kassen, 49 Ohio St. 230. Kassen walked through the rear car of the train on which he was a passenger to the rear platform, from which he either stepped off or fell off upon the track, where he lay for about two hours, when he was run over by another train. It was held that, although Kassen may have been negligent in going upon the rear platform and stepping or falling off, yet since the railroad company knew of his peril and had ample time to remove him or to notify the trainmen on the later train, its negligence in not doing so was the proximate cause of Kassen’s death and the negligence of Kassen was remote. In that case the proximate cause and the remote cause were so clearly distinguishable, and it is so very evident from the opinion and the syllabus that this distinction was the real ground of the judgment of the court, that it is somewhat surprising that the doctrine of last chance as stated in that case should have been so often misinterpreted as a qualification of the doctrine of contributory negligence.

It is clear, then, that the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided the injury to plaintiff, and there is no testimony to support such charge, the giving of such a charge would be erroneous. There is no such allegation in the petition in this case. But further, there is testimony tending to prove that the plaintiff’s team was driven upon the street railway track in the night time, ahead of the car, and that it continued on the track for a distance of two hundred and fifty feet until struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding the accident, yet the plaintiff’s negligence was continuous and was concurrent at the very moment of the collision. It proximately contributed to the collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant, which was independent of the concurrent negligence and which made the latter remote. Therefore there was no place in the case for the doctrine of “the last clear chance.”

[Remainder of opinion omitted.]

Judgment of Circuit Court affirmed.

McLain, J., in FULLER v. ILLINOIS CENTRAL RAILROAD COMPANY (1911) 100 Mississippi, 705, 716.

McLain, J.... The rule is settled beyond controversy or doubt, first that all that is required of the railroad company as against a trespasser is the abstention from wanton or willful injury, or that conduct which is characterized as gross negligence; second, although the injured party may be guilty of contributory negligence, yet this is no defense if the injury were willfully, wantonly, or recklessly done or the party inflicting the injury was guilty of such conduct as to characterize it as gross; and, third, that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party’s negligence. This last principle is known as the doctrine of the “last clear chance.” The origin of this doctrine is found in the celebrated case of Davies v. Mann, 10 Mees. & W. 545.... It is impossible to follow this case through its numerous citations in nearly every jurisdiction subject to Anglo-American jurisprudence. For the present it will be sufficient to say that the principle therein announced has met with practically almost universal favor. It has been severely criticised by some text-writers.... The law as enunciated in that case has come to stay....

An analytical examination of the adjudged cases upon this subject will demonstrate the correctness of the above analysis, and, in addition, establish the soundness and technical accuracy announced in Davies v. Mann, supra. This case has been criticised most severely ... by courts of high authority, but these courts have utterly and entirely failed to appreciate the base upon which the principle is bottomed, and in repudiating the principle do so upon the idea that Davies v. Mann establishes the much-abused comparative negligence doctrine, a doctrine repudiated by this court, but established in this state by Laws 1910, ch. 135, p. 125. (But this statute has no reference to the instant case because passed subsequent to the injuries complained of.) In order for the injured party’s negligence to bar recovery, all of the authorities hold that it must be the proximate cause; otherwise, it is not contributory. Now, when it is fully understood that the negligence of the injured party must be the proximate cause in order to bar the remedy (and, as said above, all authorities everywhere, ancient and modern, so affirm), the principle announced in Davies v. Mann must, from necessity, be the correct and true rule. If the proximate and immediate cause of the injury—the causa causans—is the controlling and determining factor in ascertaining whether the injured party has the right to recover or whether the injuring party is not liable, then it must follow, as night the day, that the party who has the last opportunity to avoid the injury is the one upon whom the blame shall fall. To express the idea differently: If the injured party’s negligence be remote, and not proximate, he can recover against the party who is guilty of negligence proximately contributing or causing the injury. The North Carolina courts have perhaps more satisfactorily and more clearly elucidated this question than have any opinions that have come under the writer’s eye. In Smith v. N. & S. R. R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287, it is said that the rule in Davies v. Mann simply furnishes a means for ascertaining whether the plaintiff’s negligence is a remote or proximate cause of the injury; that, before the introduction of this rule, any negligence on the part of the plaintiff, which in any degree contributes to the injury, was judicially treated as the proximate cause, and constituted contributory negligence which barred recovery. The same is clearly stated in Nashua Iron & Steel Co. v. W. & N. R. R. Co., 62 N. H. 159, 163, et seq. The antecedent negligence of the injured party, having been thus relegated to the position of a condition or remote cause of the accident, it cannot be regarded as contributory, since it is well established that negligence, in order to be contributory, must be at least one of the proximate causes.

Lord O’Brien, C. J., in BUTTERLY v. MAYOR OF DROGHEDA [1907] 2 Irish Reports, 134, 137.

Lord O’Brien, L. C. J.:—

The facts which give rise to the controversy we have to determine, in this case, are comprised within a narrow compass. The plaintiff, on a Saturday morning, was coming into the town of Drogheda in a car driven by himself. Coming near the town he, as he alleged, was overtaken by the horse and car of Mrs. Morgan. She desired to pass. He says he made way for her, and, in doing so, ran against a heap of stones on the road, and his car was upset and he was injured. It appears that there were two heaps of stones on the road. They had been, immediately before the collision, thrown on the road in order that they might be spread on the road. The man who brought the load, and had thrown them on the road, was a servant of the defendants. The intention was to spread them immediately on the road. The man who brought them was in fact, at the time of the accident, engaged in spreading the heap next the town, some little distance from the heap where the accident occurred. Now the first heap, where the accident occurred, was placed on the road in such a position that there was between it and the right side of the road a space of 12 feet, and between this heap and the left side of the road, 6 feet. That is to say, on the right side there was a space sufficient for two cars to pass simultaneously, and on the left a space for one car to pass. The plaintiff’s case was that, Mrs. Morgan overtaking him, he made room for her, pulled to the left, and without any default of his, his car ran upon the heap and was capsized. His case was that Mrs. Morgan caught him exactly where the heap was, and, in endeavoring to avoid her, and without any default or negligence on his part, the accident occurred. Now, three questions were left to the jury:—

1. Were the defendants, by their workmen, guilty of negligence? Yes.

2. Was the plaintiff guilty of negligence? Yes.

And if so—

3. Could the defendants, by the exercise of ordinary care, have avoided the consequence of the plaintiff’s negligence? Yes.

I have invariably refused, in these negligence cases, to leave questions in this form to a jury. This formula appears to me calculated to perplex and embarrass a jury. No doubt this formula is used, and judges do their best to explain it, but I fear that when juries take up the questions in the jury-room, the explanation has not the desired effect. Chief Justice Monahan consistently refused to put the questions in this shape to the jury. I have always tried these cases on two questions: 1st, Were the defendants guilty of negligence? and, 2d, if so, was the defendant’s negligence the real, direct, and immediate cause of the misfortune? Now, the jury in the present case answered the questions submitted to them in the way I have read. I am of opinion that the answer to the question finding that the plaintiff was guilty of negligence, determines the matter in favor of the defendants. It is quite plain, in my opinion, that his negligence was a direct contributory cause of the accident. It was a cause which brought him on the heap of stones. Assuming that there was negligence on the part of the defendants in having the stones there, still his negligence must have contributed to his running up against them. He either did not keep a sufficient lookout, or his unskilful driving brought him on the stones. Getting on the stones, through negligence, was at least a contributory cause of the accident. It directly contributed to the accident. If there be two causes directly contributing to the accident, one the negligence of the defendant and the other the negligence of the plaintiff, the result is a verdict for the defendant.

BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY v. LOACH In the Privy Council, July 26, 1915. Reported in [1916] Appeal Cases, 719.

Lord Sumner. This is an appeal from a judgment of the Court of Appeal of British Columbia in favor of the administrator of the estate of Benjamin Sands, who was run down at a level crossing by a car of the appellant railway company and was killed. One Hall took Sands with him in a cart, and they drove together on to the level crossing, and neither heard nor saw the approaching car till they were close to the rails and the car was nearly on them. There was plenty of light and there was no other traffic about. The verdict, though rather curiously expressed, clearly finds Sands guilty of negligence in not looking out to see that the road was clear. It was not suggested in argument that he was not under a duty to exercise reasonable care, or that there was not evidence for the jury that he had disregarded it. Hall, who escaped, said that they went “right on to the track,” when he heard Sands, who was sitting on his left, say “Oh,” and looking up saw the car about fifty yards off. He says he could then do nothing, and with a loaded wagon and horses going two or three miles an hour he probably could not. It does not seem to have been suggested that Sands could have done any good by trying to jump off the cart and clear the rails. The car knocked cart, horses, and men over, and ran some distance beyond the crossing before it could be stopped. It approached the crossing at from thirty-five to forty-five miles an hour. The driver saw the horses as they came into view from behind a shed at the crossing of the road and the railway, when they would be ten or twelve feet from the nearest rail, and he at once applied his brake. He was then 400 feet from the crossing. If the brake had been in good order it should have stopped the car in 300 feet. Apart from the fact that the car did not stop in time, but overran the crossing, there was evidence for the jury that the brake was defective and inefficient and that the car had come out in the morning with the brake in that condition. The jury found that the car was approaching at an excessive speed and should have been brought under complete control, and although they gave as their reason for saying so the presence of possible passengers at the station by the crossing, and not the possibility of vehicles being on the road, there can be no mistake in the matter, and their finding stands. It cannot be restricted, as the trial judge and the appellants sought to restrict it, to a finding that the speed was excessive for an ill-braked car, but not for a properly-braked car, or to a finding that there was no negligence except the “original” negligence of sending the car out ill-equipped in the morning.

Clearly if the deceased had not got on to the line he would have suffered no harm, in spite of the excessive speed and the defective brake, and if he had kept his eyes about him he would have perceived the approach of the car and would have kept out of mischief. If the matter stopped there, his administrator’s action must have failed, for he would certainly have been guilty of contributory negligence. He would have owed his death to his own fault, and whether his negligence was the sole cause or the cause jointly with the railway company’s negligence would not have mattered.

It was for the jury to decide which portions of the evidence were true, and, under proper direction, to draw their own inferences of fact from such evidence as they accepted. No complaint was made against the summing-up, and there has been no attempt to argue before their Lordships that there was not evidence for the jury on all points. If the jury accepted the facts above stated, as certainly they well might do, there was no further negligence on the part of Sands after he looked up and saw the car, and then there was nothing that he could do. There he was, in a position of extreme peril and by his own fault, but after that he was guilty of no fresh fault. The driver of the car, however, had seen the horses some perceptible time earlier, had duly applied his brakes, and if they had been effective he could, as the jury found, have pulled up in time. Indeed, he would have had 100 feet to spare. If the car was 150 feet off when Sands looked up and said “Oh,” then each had the other in view for fifty feet before the car reached the point at which it should have stopped. It was the motorman’s duty, on seeing the peril of Sands, to make a reasonable use of his brakes in order to avoid injuring him, although it was by his own negligence that Sands was in danger. Apparently he did his best as things then were, but partly the bad brake and partly the excessive speed, for both of which the appellants were responsible, prevented him from stopping, as he could otherwise have done. On these facts, which the jury were entitled to accept and appear to have accepted, only one conclusion is possible. What actually killed Sands was the negligence of the railway company, and not his own, though it was a close thing.

Some of the judges in the Courts below appear to have thought that because the equipment of the car with a defective brake was the original cause of the collision, and could not have been remedied after Sands got on the line, no account should be taken of it in considering the motorman’s failure to avoid the collision after he knew that Sands was in danger. “You cannot charge up the same negligence under different heads,” said Murphy, J., at the trial; “you cannot charge it up twice.” “On the question of ultimate negligence,” he observed, “that negligence must arise on the conditions as existing at the time of the accident. It would, of course, be absurd to say the company had any opportunity between the time that this rig appeared upon the track and the collision to remedy any defect in the brake. If there was such a defect I think it was original negligence and not what may possibly be termed ‘ultimate negligence.’”

In the Court of Appeal Macdonald, C. J. A., delivering a dissentient judgment in favor of the present appellants, said: “Where one party negligently approaches a point of danger, and the other party, with like obligation to take care, negligently approaches the same point of danger, if there arises a situation which could be saved by one and not by the other, and the former then negligently fail to use the means in his power to save it, and injury is caused to the latter, that failure is designated ultimate negligence, in the sense of being the proximate cause of the injury. In this case it is sought to carry forward, as it were, an anterior negligent omission of the defendants, though continuing, it is true, up to the time of the occurrence, and to assign to it the whole blame for the occurrence, although by no effort of the defendants or their servants could the situation at that stage have been saved.”

So, too, McPhillips, J. A., also dissenting, said: “Upon the evidence, whether it was because of defective brakes or any of the acts of negligence found against the defendants, none of them were acts of negligence arising after the act of contributory negligence of the deceased, and cannot be held to be acts of negligence which, notwithstanding the later negligence of the deceased, warrant judgment going for the plaintiff.... The motorman after he saw the vehicle could not have stopped the car ... therefore, as nothing could be then done by the motorman to remedy the ineffective brake, the want of care of the deceased was the direct and effective contributory cause of the accident resulting in his death.”

These considerations were again urged at their Lordships’ bar under somewhat different forms. It was said (1) that the negligence relied on as an answer to contributory negligence must be a new negligence, the initial negligence which founded the cause of action being spent and disposed of by the contributory negligence. Further, it was said (2) that if the defendants’ negligence continued up to the moment of the collision, so did the deceased’s contributory negligence, and that this series, so to speak, of replications and rebutters finally merged in the accident without the deceased ever having been freed from the legal consequence of his own negligence having contributed to it.

The last point fails because it does not correspond with the fact. The consequences of the deceased’s contributory negligence continued, it is true, but, after he had looked, there was no more negligence, for there was nothing to be done, and, as it is put in the classic judgment in Tuff v. Warman, (1858) 5 C. B. (N. S.) 573, 585, his contributory negligence will not disentitle him to recover “if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

As to the former point, there seems to be some ambiguity in the statement. It may be convenient to use a phraseology which has been current for some time in the Canadian Courts, especially in Ontario, though it is not precise. The negligence which the plaintiff proves to launch his case is called “primary” or “original” negligence. The defendant may answer that by proving against the plaintiff “contributory negligence.” If the defendant fails to avoid the consequences of that contributory negligence and so brings about the injury, which he could and ought to have avoided, this is called “ultimate” or “resultant” negligence. The opinion has been several times expressed, in various forms, that “original” negligence and “ultimate” negligence are mutually exclusive, and that conduct which has once been relied on to prove the first cannot in any shape constitute proof of the second.

Here lies the ambiguity. If the “primary” negligent act is done and over, if it is separated from the injury by the intervention of the plaintiff’s own negligence, then no doubt it is not the “ultimate” negligence in the sense of directly causing the injury. If, however, the same conduct which constituted the primary negligence is repeated or continued, and is the reason why the defendant does not avoid the consequences of the plaintiff’s negligence at and after the time when the duty to do so arises, why should it not be also the “ultimate” negligence which makes the defendant liable?

This matter was much discussed in Brenner v. Toronto Ry. Co., 13 Ont. L. R. 423, when Anglin, J., delivered a very valuable judgment in the Divisional Court. The decision of the Divisional Court was reversed on appeal, 15 Ont. L. R. 195, (1908) 40 Can. S. C. R. 540, but on other grounds, and in their comments on the decision of the Divisional Court, Duff, J., in the Supreme Court, and also Chancellor Boyd in Rice v. Toronto Ry. Co., (1910) 22 Ont. L. R. 446, 450, and Hunter, C. J., in Snow v. Crow’s Nest Pass Coal Co., (1907) 13 B. C. Rep. 145, 155, seem to have missed the point to which Anglin, J., had specially addressed himself.

The facts of that case were closely similar to those in the present appeal, and it was much relied on in argument in the court below. Anglin, J., following the decision in Scott v. Dublin and Wicklow Ry. Co., (1861) 11 Ir. C. L. Rep. 377, 394, observed as follows, 13 Ont. L. R. 437, 439, 440: “Again, the duty of the defendants to the plaintiff, breach of which would constitute ‘ultimate’ negligence, only arose when her danger was or should have been apparent. Prior to that moment there was an abstract obligation incumbent upon them to have their car equipped with efficient emergency appliances ready and in condition to meet the requirements of such an occasion. Had an occasion for the use of emergency appliances not arisen, failure to fulfil that obligation would have given rise to no cause of action. Upon the emergency arising, that abstract obligation became a concrete duty owing to the plaintiff to avoid the consequences of her negligence by the exercise of ordinary care.... Up to that moment there was no such breach of duty to the plaintiff. In that sense the failure of the defendants to avoid the mischief, though the result of an antecedent want of care, was negligence which occurred, in the sense of becoming operative, immediately after the duty, in the breach of which it consisted, arose. It effectively intervened between the negligence of the plaintiff and the happening of the casualty. But there is a class of cases where a situation of imminent peril has been created, either by the joint negligence of both plaintiff and defendant, or it may be, by that of the plaintiff alone, in which, after the danger is or should be apparent, there is a period of time, of some perceptible duration, during which both or either may endeavor to avert the impending catastrophe.... If, notwithstanding the difficulties of the situation, efforts to avoid injury duly made would have been successful, but for some self-created incapacity which rendered such efforts inefficacious, the negligence that produced such a state of disability is not merely part of the inducing causes—a remote cause or a cause merely sine qua non—it is, in very truth, the efficient, the proximate, the decisive cause of the incapacity, and therefore of the mischief.... Negligence of a defendant incapacitating him from taking due care to avoid the consequences of the plaintiff’s negligence, may, in some cases, though anterior in point of time to the plaintiff’s negligence, constitute ‘ultimate’ negligence, rendering the defendant liable notwithstanding a finding of contributory negligence of the plaintiff....”

Their Lordships are of opinion that, on the facts of the present case, the above observations apply and are correct. Were it otherwise the defendant company would be in a better position, when they had supplied a bad brake but a good motorman, than when the motorman was careless but the brake efficient. If the superintendent engineer sent out the car in the morning with a defective brake, which, on seeing Sands, the motorman strove to apply, they would not be liable, but if the motorman failed to apply the brake, which, if applied, would have averted the accident, they would be liable.

The whole law of negligence in accident cases is now very well settled, and, beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough. Many persons are apt to think that, in a case of contributory negligence like the present, the injured man deserved to be hurt, but the question is not one of desert or the lack of it, but of the cause legally responsible for the injury. However, when once the steps are followed the jury can see what they have to do, for the good sense of the rules is apparent. The inquiry is a judicial inquiry. It does not always follow the historical method and begin at the beginning. Very often it is more convenient to begin at the end, that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrong-doer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origins; for judicial purposes they are remote. Till that has been done there may be a considerable sequence of physical events, and even of acts of responsible human beings, between the damage done and the conduct which is tortious and is its cause. It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all. “Efficient or effective cause,” “real cause,” “proximate cause,” “direct cause,” “decisive cause,” “immediate cause,” “causa causans,” on the one hand, as against, on the other, “causa sine qua non,” “occasional cause,” “remote cause,” “contributory cause,” “inducing cause,” “condition,” and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification.

In the present case their Lordships are clearly of opinion that, under proper direction, it was for the jury to find the facts and to determine the responsibility, and that upon the answers which they returned, reasonably construed, the responsibility for the accident was upon the appellants solely, because, whether Sands got in the way of the car with or without negligence on his part, the appellants could and ought to have avoided the consequences of that negligence, and failed to do so, not by any combination of negligence on the part of Sands with their own, but solely by the negligence of their servants in sending out the car with a brake whose inefficiency operated to cause the collision at the last moment, and in running the car at an excessive speed, which required a perfectly efficient brake to arrest it. Their Lordships will accordingly humbly advise His Majesty that the appeal should be dismissed with costs.

NEHRING v. THE CONNECTICUT COMPANY Supreme Court, Connecticut, July 19, 1912. Reported in 86 Connecticut Reports, 109.

Prentice, J. It is clear and unquestioned that there was evidence, justifying its submission to the jury, tending to establish the defendant’s negligence in the premises directly contributing to produce the fatal injury which the plaintiff’s intestate suffered. The verdict for the defendant was directed upon the ground that the plaintiff had failed to present evidence, sufficient to go to the jury, tending to establish the intestate’s freedom from contributory negligence. Plaintiff’s counsel in his brief formally takes issue with this conclusion of the court, asserting that the evidence was such as entitled the plaintiff to go to the jury upon the question of the intestate’s negligence. It is apparent, however, that little reliance is placed upon this particular claim, and that the contention that the court erred must fail unless the appeal which is made to the so-called doctrine of “the last clear chance,” otherwise known as supervening or intervening negligence, is well made. This appeal is urged with vigor, so that the plaintiff’s main contention, which alone calls for serious consideration, is that, notwithstanding the intestate’s failure to use ordinary care, the defendant is liable through the operation of the doctrine referred to, which, it is said, the court disregarded.

The notion appears to be more or less prevalent that this so-called doctrine is a discovery of recent years, that it embodies a new legal principle, and that this principle is one which invades the domain formerly assigned to contributory negligence, and sets limitations upon the operation of this latter doctrine so long and so deeply imbedded in English and American jurisprudence. This is by no means true as respects either the age or the character and scope of the principle which it embodies. The names by which it has come to be known are indeed of recent origin, and perhaps its present vogue and the misconception which prevails as to its true place in the law of negligence are due in part to its thus being given an independent status in the terminology of the law. In fact, the principle is no modern discovery. It runs back to the famous “Donkey Case” of Davies v. Mann, 10 Mees. & W. 546, decided in 1842. It was distinctly recognized by this court in 1858 in Isbell v. New York & N. H. R. Co., 27 Conn. 393. It was then not only recognized, but its true place in the law was assigned to it. It was shown to be no independent principle operating by the side of, and possibly overstepping the bounds of, other principles, but merely a logical and inevitable corollary of the long accepted doctrine of actionable negligence as affected by contributory negligence. The definition of its place, which was made in the clear-cut language of Judge Ellsworth, inexorably forbade that it could by possibility run counter in its application to the contributory negligence rule. This fundamental principle we have steadily adhered to. Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888; Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 322, 76 Atl. 298, 84 Conn. 444, 447, 80 Atl. 283.

There are, indeed, cases which give countenance to a different view upon this latter subject. But their dicta, oftentimes, not to say generally, uttered without an apparent comprehension of their logical consequence, would create havoc with the law, and leave it guideless, or with two conflicting guides. A sober second thought is, however, fast correcting this mistake, so that there has already come to be a general concurrence of the well-considered authorities in the view which has been taken in this jurisdiction.

The contributory negligence rule has no practical application save in cases where the defendant has been guilty of actionable negligence. It proceeds upon the theory that whenever a person injured has contributed essentially to his injury by his own negligent conduct, the law will not give him redress, even against another who may have been directly instrumental in producing the result. To furnish a basis for its application there must have been a concurrence of negligent conduct. This negligent conduct, furthermore, must have been of such a character and so related to the result as to entitle it to be considered an efficient or proximate cause of it. If there is a failure to use due care on the part of either party at such a time, in such a way or in such a relation to the result that it cannot fairly be regarded as an efficient or proximate cause, the law will take no note of it. Causa proxima, non remota, spectatur.

It thus logically follows that, although a plaintiff may have failed to exercise reasonable care in creating a condition, or in some other way, which cannot be fairly said to have been the proximate cause of the injuries of which he complains, the contributory negligence rule cannot be invoked against him. The question with respect to negligent conduct on the part of a person injured through the negligence of another, as affecting the former’s right to recover, thus becomes resolved in every case into one as to whether or not that conduct of his was a proximate cause of the injury. If it was, then the contributory negligence rule is applicable, and the plaintiff will by its operation be barred from recovery. If it was not, that rule has no pertinence to the situation, since there was no concurrence of negligence, without which there can be no contributory negligence in the legal sense. It is conduct of the latter kind—that is, conduct careless in itself, but not connected with the injury as a proximate cause of it—to which the so-called doctrine of “the last clear chance” relates, and that doctrine embraces within its purview such conduct only.

This being so, it may well be questioned whether the doctrine deserves a classification and a name as of an independent principle. But if, for convenience sake or other reason, it is to be dignified in that way, it is apparent that there is no manner of inconsistency between it and the contributory-negligence rule, and that the domain of the latter rule is in no way invaded or narrowed by a full recognition of it. It follows that the decisive question in each case, where a plaintiff injured is found to have been at fault in the premises from his failure to exercise the required degree of care, resolves itself into one as to whether that fault was or was not a proximate cause of the injury, and that the answer to that question will infallibly determine whether or not it will bar a recovery.

Thus far we have had the way marked out for us by the clearly defined doctrine of former opinions. But the proposition just stated, which is thus supported, while sufficient for the determination of many cases and furnishing a helpful guide in most others, does not resolve all the difficulties which may be encountered. It leaves the question open as to when negligent conduct in a person injured in his person or property is to be regarded as a proximate cause of the injury. How close must be the causal connection between the negligence and the injury? It is at this point that any real uncertainty or trouble arises under the doctrine of this jurisdiction.

The negligence referred to in the claimed rule is, of course, that which the law so denominates, to wit, want of due care which is a proximate cause of harm. The proposition is not dealing with a lack of due care which the law ignores. When it speaks of the negligence ceasing, negligence in the legal sense is meant. It may in a given sense cease in the sense that prudent conduct takes its place. It may for all legal purposes cease through the relegation of it, as events progress, to the domain of remote cause. In other words, it ceases when, and only when, the conditions of contributory negligence disappear. The claimed test thus solves no problems. It only brings one back, in doubtful cases, to the inquiry whether the plaintiff’s conduct, lacking in due care, was of such a character, or so related to the injury, that it ought to be regarded as a proximate cause of it, as the real test which must be applied.

The impossibility of framing any general abstract statement which will suffice to resolve the difficulties which may be presented under varying conditions, or to anticipate all such conditions, is apparent. We shall undertake no such task. There are, however, certain sets of conditions, of not infrequent occurrence, concerning which general conclusions may be made safely and profitably.

There is, for instance, the occasional case where, after the plaintiff’s peril, to which he has carelessly exposed himself or his property, becomes known to the defendant, the latter introduces into the situation a new and independent act of negligence without which there would have been no injury. Such was the case of Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888, and it was there held, in accordance with sound reason, that this new negligence was to be regarded as the sole proximate cause of the accident which ensued. The rule for that type of case is thus furnished.

Cases of another class occasionally arise, where it is disclosed that the plaintiff has by his lack of care placed himself in a position of danger from which he either cannot, or cannot reasonably, escape after the discovery of his danger. Here, again, there can be no hesitation in saying, that if the defendant, after his discovery that the plaintiff is in the situation described, fails to use reasonable care—and that is care proportioned to the danger—to save him from harm, and harm results from such failure, the defendant’s want of care will be regarded as the sole proximate cause, and the plaintiff’s a remote cause only.

The situation just stated is not infrequently changed, in that means of escape were open to the plaintiff by the exercise of reasonable care, but it was apparent to the defendant, in season to have avoided the doing of harm by the exercise of due care, that the plaintiff would not avail himself of them. Here it is assumed that the situation of exposure had been created and established by the plaintiff’s action before the period of time began within which the defendant, acting reasonably, might have saved him, and that within that period the plaintiff did nothing to create or materially change that situation by active conduct which was not marked by reasonable care. Under the assumption he remains passive, in so far at least as negligent action is concerned, and can be regarded as careless only in this that he did not awake to his surroundings and do what he reasonably could to avoid the threatened consequences of a situation which he had already negligently brought about. In such cases the humane, and, to our mind, the better reason, all things considered, leads to the conclusion to which our former opinions, already cited, commit us, and which a large number of cases elsewhere approve, that the want of care on the part of the plaintiff will be regarded as a remote and not a proximate cause.

Another important variation is oftentimes introduced into the situation, in that the plaintiff continued as an active agent in producing the conditions under which his injury was received down to the time of its occurrence, or at least until it was too late for the defendant, with knowledge of his peril, to have saved him by the exercise of reasonable care under the circumstances. This variation imports into the situation an important factor. The plaintiff, during the period named, is not merely passively permitting an already fixed condition to remain unchanged. He is an actor upon the scene. He is, by acts of his volition, bringing into the situation which confronts the defendant changed conditions and, in the fullest sense, co-operating with the latter in bringing about the ultimate result. In such case his conduct must be regarded as a concurring efficient cause. It is, in the fullest sense, a proximate and not a remote one, making his negligence contributory.

It is said, however, that there are cases, and undoubtedly there are, where it is reasonably apparent to the one who inflicts the injury that the injured one is careless of his safety, and that, in continuance of his carelessness, he is about to place himself in a position of danger, which he subsequently does, and where the former thereafter, having a reasonable opportunity to save him from harm, fails to do so; and it is contended that in such cases the conduct of the injured person should be regarded as a remote cause only of the resulting harm. We are unable to discover any logical reason for such a conclusion, or any place at which a practical or certain line of division can be drawn between that careless conduct of a man, playing some part in an injury to him, which the law will regard as having that causal connection with the injury which makes it a proximate cause, and that careless conduct which will not be so regarded, if the contention under consideration is to be approved. The conduct of the man who inflicts the injury under such general conditions may indeed be such that it is open to the charge of wilfulness or wantonness. If so, the case is not one of negligence, and the defense of contributory negligence would not be available. Rowen v. New York, N. Y. & H. R. Co., 59 Conn. 364, 371, 21 Atl. 1073. If the conduct is not wilful or wanton, it is negligent only. Thus treated, it forms one factor of negligence in the situation. The plaintiff’s want of care is another factor, and it certainly has something substantial to do in bringing about the result reached. Upon what theory or foundation in reason it can be said that, under the circumstances assumed, it is not an efficient cause of that result co-operating concurrently with the other cause to be found in the other party’s negligence, we are unable to discover. The causal connection is plain to be seen, and the act of causation is that of a positive act of volition. The two actors upon the scene owe precisely the same duty to be reasonably careful. Dexter v. McCready, 54 Conn. 171, 174, 5 Atl. 855. Neither occupies in that regard a superior position, and the one who suffers can claim no precedence over his fellow actor or at the hands of the law. To say that no matter if one be negligent in going forward into danger, or in creating new conditions or complicating them, the law will protect him and cast upon the other party the responsibility for the result, is to ignore the fundamental principle of contributory negligence and bring the law upon that subject into hopeless confusion, and merit for it the condemnation which Thompson has so forcibly expressed. 1 Thompson on Negligence, §§ 230, 233. The well-considered cases which have directly dealt with this subject agree with us, we think, in our view that active continuing negligence of the kind assumed is to be regarded as contributory in the legal sense. Butler v. Rockland, T. & C. Street Ry. Co., 99 Me. 149, 160, 58 Atl. 775; Murphy v. Deane, 101 Mass. 455, 465; Dyerson v. Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680; Little v. Superior Rapid Transit Ry. Co., 88 Wis. 402, 409, 60 N. W. 705; Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31, 47, 76 Pac. 719; Olson v. Northern Pacific Ry. Co., 84 Minn. 258, 87 N. W. 843.

We have thus far dealt with cases in which actual knowledge on the part of the defendant of the plaintiff’s peril enters into the assumption of facts. Suppose, however, that such knowledge is not established, but facts are shown from which it is claimed that the defendant ought in the exercise of due care to have known of it. What shall be said of such a situation?

In so far as imputed or constructive knowledge may be embraced in the assumption, the simple answer is to be found in the legal principle that full and adequate means of knowledge, present to a person when he acts, are, under ordinary circumstances, treated as the equivalent of knowledge. Post v. Clark, 35 Conn. 339, 342.

But our assumption reaches outside of the domain of knowledge, either actual or constructive. It suggests, in the use of the phrase “ought in the exercise of due care to have known,” frequently met with in the books, the existence of a duty to exercise due care to acquire knowledge, and the query is, whether the law recognizes the existence of such a duty to the extent of making it a foundation for responsibility for conduct akin to that which flows from conduct with actual or constructive knowledge.

We have frequently held that the character of one’s conduct in respect to care is to be determined in view of what he should have known as well as of what he did in fact know. Snow v. Coe Brass Mfg. Co., 80 Conn. 63, 66 Atl. 881. In these cases the question has been as to one’s duty for his own self-protection. That duty, according to established principles, involves the making of reasonable use of one’s senses under the penalty of forfeiture of all claim for redress in the event that harm results. Popke v. New York, N. H. & H. R. Co., 81 Conn. 724, 71 Atl. 1098.

But how about a duty of acquiring knowledge, owed to others for their safety, which, not being performed, will furnish a basis of liability? In Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298, we recognized that such a duty might exist. That case involved the conduct of a locomotive engineer operating his engine at a grade-crossing, and we approved a charge which gave to the knowledge which the engineer, under the conditions, ought, in the use of due care, to have had, the same effect as actual knowledge. The duty imposed upon him was one to be watchful in order that needless harm might not come to persons who might be using the crossing, from the dangerous instrument of his calling. The duty was one toward others, which the circumstances and conditions must be regarded as fairly creating. For a like reason a similar duty rests upon other persons and under other conditions, in greater or lesser measure. Whether it exists, and the extent of it, depends upon the circumstances of each situation. A circumstance of chief significance, perhaps, is one which concerns the character of that about which the person is engaged in respect to its being calculated, under the conditions, to work injury to others. And so it is that a locomotive engineer, a motorman of a trolley-car running in a highway, or a chauffeur driving an automobile, is under a duty to be watchful for the protection of others which another man under other conditions would not owe to his fellows. Unreasonableness in one’s conduct, as a foundation for responsibility to others, cannot justly be established upon the basis of knowledge not possessed. It can with propriety be predicated upon negligence in not having acquired more knowledge. Negligence in this respect, as in all others, implies the existence of a duty to make use of means of knowledge. This duty must be found in the circumstances, and caution must be exercised in order that it, with its consequences, be not raised where the circumstances do not fairly impose it, or be extended beyond the limits which the circumstances fairly justify.

George W. Wheeler, J. (dissenting). Just prior to the accident the defendant’s car was being negligently operated. Assuming the decedent walked either diagonally toward and upon the track, or close to it, without using his senses to learn of the approaching car, and that there was no excuse for his failure, he was negligent. If the accident occurred while decedent and defendant were negligent and decedent’s negligence was a proximate cause of the accident, and there was nothing more to the case, there could be no recovery. But if the defendant’s motorman saw, or could by the exercise of reasonable care have seen, the decedent either approaching the track and about to place himself in danger, or walking so near the track as to be in danger, apparently heedless and unconscious of his peril, he owed to the deceased the duty of warning him and of observing such precautions as might avoid running into him. This was the case before the jury. We hold knowledge and the means of knowledge of one having a duty to know equivalent. Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298. This duty originated after the negligence of the motorman and of the deceased, and after the latter’s peril and his unconsciousness of it might have been discovered by the motorman. If its performance would have avoided the injury to the deceased, its breach was the proximate cause of the accident, and his negligence in placing himself in the place of peril a condition, or the remote cause, of it. Of course, if he had not gone upon the track he would not have been injured; if he was negligent in going upon the track without using his senses, that was not the proximate cause of the accident, but the failure of the defendant to avoid the accident after it had the opportunity of avoidance and after it knew of the decedent’s peril and his unconsciousness of it.

In each case of discovered peril caused by one’s negligence the question is, did the defendant have the opportunity after such discovery, and was it his duty, to have avoided the accident? Whether the conduct of the motorman was gross negligence, or ordinary negligence, the breach of duty was the same in kind, though differing in degree. If one walks upon a railway track drunk, or in a reverie, or otherwise careless; or if one stands or lies on or so near the railway track as to be in danger and unconscious of it; or if one is in a position of peril through his own negligence from which he is unable to extricate himself, the person knowing or having the means and the duty to know of his presence owes him the duty of avoiding injuring him. One who is negligently in a position of danger and unconscious of it is in no different situation than if he were incapable of extricating himself from his peril.

The few authorities which hold the antecedent negligence of the deceased in getting into peril is concurrent with the defendant’s negligence so as to bar a recovery, make meaningless the rule of duty compelling the defendant to use reasonable care to avoid the accident after discovery of the peril. A legal duty without a corresponding obligation is an anomaly. When we relieve the motorman of liability for failure to avoid an accident, he may operate his car at a negligent speed, without having it under control, without keeping an outlook, without giving warning of approach, and neither having nor using the ordinary instrumentalities of equipment for avoiding injury to travellers, and so long as his conduct is not gross negligence it carries with it no liability.

The opinion of the court classifies in five groups the several kinds of cases which have been thought to be within the “last clear chance” doctrine. In group one, the defendant, instead of doing his duty, does something which is a new act of negligence. In group two, the peril is one from which the plaintiff cannot, or cannot reasonably, extricate himself. Each group supports a recovery. In group three, means of escape were open to the plaintiff down to the accident, but he remained unconscious of his peril. The opinion holds that if the plaintiff remains passive after exposing himself to peril and does nothing to materially change that condition, there may be a recovery. But in group four, assuming the same facts as in group three, the court holds that if the plaintiff after exposing himself to peril, instead of permitting the fixed condition to remain unchanged continues as an active agent in producing the conditions under which the injury was received down to its occurrence, or until it was too late for the defendant to avoid the accident, there can be no recovery. In group five, the defendant knows, or ought to know, that the injured one is careless and is about to expose himself to danger of which he is unconscious, and after such knowledge has the opportunity to avoid injury to him, and in such case the court holds there can be no recovery.

We have attempted to show that the breach of duty of the defendant in each of these several groups is the same, and was a new act of negligence of the defendant, viz.: the failure of the defendant to avoid injuring the plaintiff after he knew of his peril when he was either unconscious of it or incapable of extricating himself from it, and that this breach was the proximate cause of the accident while the plaintiff’s prior negligence was the remote cause.

The distinction between active and passive negligence made in groups three and four, is new to our law, as well as to the law of negligence generally prevailing in this country and in England. On analysis it does not seem logical. A is crossing a trolley track when hailed by a friend; he stops upon the track to talk and negligently fails to use his senses to discover an approaching car. The motorman could have seen A in his place of peril, unconscious of his danger, and in time, with the exercise of reasonable care to have avoided injuring him; instead he drives on his car and kills A. The opinion would hold A negligent in being upon the track without using his senses to keep out of the way of the oncoming car, but that as he remained passive and did nothing to change his situation of peril after the motorman had the opportunity to have avoided the accident, he may recover. But if A, instead of stopping on the track had gone on his way across or upon the track and been struck, his negligence would have been active and continued to the accident and would have been concurrent with that of the motorman. It must be conceded that the breach of the motorman’s duty would have been the same in each case: a failure to use reasonable care to avoid the accident. We see no reason why it should be available in the one case and not in the other. In neither case has the plaintiff’s negligence changed. It never became passive or nonexistent. It remained to the time of the accident. It ceased, in a legal sense, to be a proximate cause of the accident. A was relieved of its consequences because the negligence of the motorman in failing to avoid the accident intervened and became its proximate cause. If this distinction holds, and A be upon a trolley track intoxicated and asleep, his negligence is passive; if awake and walking his negligence is active.

GAHAGAN v. BOSTON & MAINE RAILROAD Supreme Court, New Hampshire, December, 1900. Reported in 70 New Hampshire Reports, 441.

Plaintiff was struck by a train while attempting to use a crossing provided by the Railroad Company for persons having business with a manufacturing company. From a point twenty-two feet from the nearest rails there was an unobstructed view of the track in the direction from which the train came. The accident happened near noon on a bright and clear day. Generally the engine bell was rung, while the whistle was sometimes sounded, for this crossing. Plaintiff knew it was usual to ring the bell. In this instance a danger whistle was sounded at, or immediately before, the time when plaintiff was struck; but there was evidence tending to prove that no other warning of the approach of the train was given. Plaintiff testified that he did not look or listen for an approaching train; and that he did not look because he expected to hear the bell or whistle if one was coming. The engineer testified that, when about one hundred and fifty to two hundred feet from the crossing, he saw plaintiff approaching the track; and that he kept watch of plaintiff until he got within a few feet of the track, when he whistled.

A nonsuit was ordered, subject to exception.

Parsons, J.... It is urged that the plaintiff relied upon the ringing of the bell, and that the failure to give the warning signals (of which there was some evidence which must here be taken to be true) excused him from the exercise of vigilance. Though the plaintiff testified that he did not look to see if a train was approaching because he expected to hear the whistle or bell if there was, it cannot be claimed that he was consciously at the time placing any reliance thereon, for he further testifies that he had no thought of a train coming and did not listen for the bell. As his counsel state in their brief, “There was no positive effort, no conscious ‘harking’ or ‘listening’ to ascertain if the train was coming.” But assuming that it might be found as a fact that he did rely on the awakening of his consciousness by the performance of the railroad’s duty of warning, the failure of the defendants to perform their duty did not release him from his. The obligation to use care was equally imposed upon each. If the defendants’ negligence excused the plaintiff from his duty of care, the plaintiff’s negligence with equal reason would excuse the defendants. If the plaintiff had the right to assume the defendants would perform their duty, and, relying thereon, approach the crossing without exercising care, the defendants had the right to assume that the plaintiff would perform his duty, and omit the warning of bell and whistle. The duty of care rested on each equally. If neither performed that duty both are in fault, and neither can recover of the other. The collision in this case resulted, it may be, because neither party performed their duty. If either had, there might and probably would have been no accident. The rights and liabilities of the parties consequent upon their acts resulting in the collision are not affected by the fact that subsequently one is plaintiff and the other defendant in a suit growing out of the collision. Their several responsibility is fixed at the time by their acts or failure to act. A suit by the engineer against Gahagan for personal injury resulting from the collision would present precisely the same legal question as that we now have. It would hardly be urged that the engineer was not guilty of contributory negligence in failing to ring the bell because he relied upon Gahagan’s performance of his duty of stopping and allowing the train to go by. The negligence of neither is an excuse for concurrent want of care in the other, because for an injury resulting from the concurrent negligence of both neither can recover. Nashua Iron and Steel Co. v. Railroad, 62 N. H. 159, 163.

The rule is laid down in Railroad Co. v. Houston, 95 U. S. 697, 702, also a crossing case, as follows: “The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars was no excuse for negligence on her part.”

It is not claimed that after the plaintiff stepped upon the track almost immediately in front of the approaching train the defendants could have prevented the injury, or that the employees in charge of the train, when the danger thus became imminent, did not do all that could be done to prevent the collision. At any time before this the plaintiff could have avoided the collision. There was no moment when the defendants could, while the plaintiff could not, have prevented the injury. The plaintiff’s act in stepping upon the track, without precaution to ascertain whether he could safely do so, was the last act in point of time in the causation producing the injury. As there was no evidence upon which it could reasonably be found that the plaintiff’s action in this respect was the exercise of care, he cannot recover unless upon the evidence some negligent act or omission of the defendants’ employees could be found to be the sole proximate cause of the injury.

The plaintiff’s negligent occupation of the track did not authorize the defendants to run upon and injure him, if by care they could have avoided it. Ordinarily, the negligent act or omission which fails to avoid the consequences of the plaintiff’s negligence is the last act in time in the series leading to the injury. Such was the case in the cases cited; the negligent occupation of the track by the plaintiffs preceded the negligence of the defendants in failing to observe and guard against the danger so produced. But as ordinary care may require vigilance to guard against a dangerous situation reasonably to be apprehended, as well as actually imminent, it cannot always follow that the last negligent act in point of time is necessarily the proximate cause of the injury. If the engineer knew or ought to have known that the plaintiff’s negligence would place him upon the crossing when the train reached it, the engineer was equally bound to avoid the collision as if he saw the plaintiff actually on the track. The question is one of evidence merely. The mere fact that the person when first seen is on the track is not decisive. If a person on foot is seen crossing the track at such distance ahead that it could not reasonably be apprehended that the train would reach him in this position, the engineer would not be in fault for not preparing to avoid a danger not reasonably to be expected. In the present case there is evidence that when the plaintiff was first seen by the engineer the collision could have been prevented. If the engineer knew or ought to have known then that the plaintiff would be upon the crossing when the train reached it, and could have avoided the collision, his failure to do so is the proximate cause of the injury.

As there was evidence the collision might then have been prevented by him, the sole remaining question is whether upon the evidence reasonable men might find the engineer ought then to have foreseen the plaintiff’s negligence. The bare fact that the plaintiff was seen approaching the track is not sufficient to authorize such a finding. If it were, the rule heretofore laid down and found to be approved by the authorities and the reason of the case, that it is the duty of the highway traveller to stop and allow the train to pass, would be reversed. It would become the duty of the train to stop and wait for the person on foot to go by. This would be unreasonable, impracticable, and put an end to the modern system of rapid transportation demanded by the public, and to effectuate which railroads are authorized by the state.

“The company’s servants may ordinarily presume that a person apparently of full age and capacity, who is walking on the track at some distance before the engine, will leave it in time to save himself from harm; or if approaching the track, that he will stop if it becomes dangerous for him to cross it. This presumption will not be justified under some circumstances, as when the person who is on the track appears to be intoxicated, asleep, or otherwise off his guard.” Pierce R. R. 331; 2 Shearm. & Red. Neg. s. 483; Chicago, etc. R. R. v. Lee, 68 Ill. 576, 581; Terre Haute, etc. R. R. v. Graham, 46 Ind. 239, 245; Lake Shore, etc. R. R. v. Miller, 25 Mich. 274, 278, 280; Boyd v. Railway, 105 Mo. 371, 381, 382. The presumption is founded upon the general principle of right acting and the instinct of self-preservation. Huntress v. Railroad, 66 N. H. 185; Lyman v. Railroad, 66 N. H. 200; 2 Thomp. Neg. 1601.

The case discloses no evidence apparent to the engineer taking the present case out of the rule.

Aside from the plaintiff’s own statement and the fact of the subsequent collision, the case contains no evidence that the plaintiff, when seen by the engineer approaching the crossing, was not alert to the situation, or tending to produce a belief that he would voluntarily rush into danger without care. Until he stepped upon the track his only danger consisted in the fact of his mental obliviousness to his duty of taking care. So defining his danger, the claim of his counsel, that if the engineer knew the plaintiff’s danger he could have avoided the injury and is in fault for not doing so, is sound; but to submit to the jury the question of fact whether the engineer ought to have known the status of the plaintiff’s mind in season to have prevented the accident, not only in the absence of evidentiary facts tending to prove such knowledge but in the face of all the facts open only to a contrary inference, would be a violation of the familiar and elementary rule that in judicial trials facts are to be found upon evidence, not conjecture. Deschenes v. Railroad, 69 N. H. 285.

The evidence upon which counsel mainly rely, tending to show that when seen by the engineer Gahagan’s face was not turned toward the train and that his appearance did not indicate whether he saw the train or not, does not tend to establish that he proposed to rush carelessly into known danger, or that he would go upon the track without care to ascertain if a train was approaching. That Gahagan knew the crossing, its danger, and his approach to it, was conceded. Hence, in the face of this admitted fact, although this evidence may have some tendency to prove the contrary, the jury could not find that Gahagan did not know he was approaching a place of danger, or that the engineer ought to have inferred a fact which it is conceded did not exist. As there is no evidence that the defendants ought to have known the plaintiff’s danger in season to have avoided the results of his negligence, they cannot be found guilty of negligence for not doing so.

Exceptions overruled.

Keith, P., in NORFOLK & W. R. CO. v. DEAN’S ADM’X (1907) 107 Virginia, 505, 506, 507, 513.

Keith, P. The Circuit Court ... rests the case solely upon the second count in the declaration, in which the case presented is that, after it became apparent to the crew in charge of defendant company’s train that intestate of plaintiff was on the track in front of the engine, that he was unconscious of his danger, and would take no measures to protect himself, the crew failed to use any measure to prevent the accident. Such being the issue to be determined, it is needless to consider so much of the evidence as relates to the use of the track as a public passway, or as to whether or not the person injured was a licensee or a trespasser. He was a human being, and when his dangerous position was seen and known, and that he himself was unconscious of his peril, and would take no measures for his own protection, it became the duty of the railroad company to do all that could be done consistent with its higher duties to others to save him from the consequences of his own act, regardless of whether he was guilty of contributory negligence or not. Seaboard & Roanoke R. Co. v. Joyner’s Adm’r, 92 Va. 355, 23 S. E. 773.

This being the narrow issue to be decided, it becomes necessary to consider the evidence bearing upon it with care....

[The learned judge then considered the testimony. He found that there was no failure of duty on the part of the train men; and he held that the demurrer to the evidence should have been sustained. He quoted, with approval, the following statements of the law.]

In N. & W. Ry. Co. v. Harman, 83 Va. 577, 8 S. E. 258, it is said that “if a person seen upon the track is an adult, and apparently in the possession of his or her faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position; and if he fails to do so, and is injured, the fault is his own, and there is, in the absence of wilful negligence on its part, no remedy against the company for the results of an injury brought upon him by his own recklessness.”

In Rangeley v. Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is said that a railroad company has the right to assume that a grown person seen on its track will get out of the way of an approaching train, and the company is not liable unless it is shown that after the company, in the exercise of ordinary care, could have discovered that he was not going to get off the track, it could have avoided the injury.

O’KEEFE, Adm’x, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY Supreme Court, Iowa, October 21, 1871. Reported in 32 Iowa Reports, 467.

Appeal from Polk District Court.

Action by an administratrix to recover damages for the death of her husband, Dennis O’Keefe, alleged to have been killed by being run over on the defendant’s road, through the negligence of the defendant’s agents and employees. Defence in denial, and also that the death was caused by the drunkenness and negligence of the plaintiff’s intestate. There was a jury trial, resulting in a verdict and judgment for plaintiff for $1000. The defendant appeals.

Cole, J. [Omitting statement of evidence.] After the evidence was closed, the defendant asked the court to instruct the jury as follows: “If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s intestate, was, a short time before the alleged injury, in a state of intoxication; that in such condition he went upon defendant’s railroad and laid himself down upon the track, or fell down unable to support himself because of such intoxication; that remaining in that condition a passing train crushed one of his legs; that after the injury he was yet under the influence of intoxicating liquors drank before the injury; that the injured limb was amputated and death ensued, you will find for the defendant, unless you further find from a preponderance of the evidence that defendant or its agents had knowledge that he was thus lying in time to prevent the accident,” to which the court added, and then gave it, “or, could have known with the exercise of ordinary caution.” This modification was excepted to at the time, and is now assigned as error.

The well-established law of this state is, that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be entitled to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of “contributory negligence,” and not the doctrine of “comparative negligence.” The latter doctrine obtains only in Illinois and Georgia, while the former obtains in the other states, and also in the Federal courts. The modification complained of ignored the doctrine of contributory negligence, and substantially told the jury that plaintiff might recover without regard to his negligence, if the defendant could have prevented the injury with the exercise of ordinary caution. The doctrine of the modification goes even farther than that of comparative negligence; for, by the latter, a plaintiff can only recover when he shows the defendant’s negligence to have been greater, by comparison, than his, while by the modification the plaintiff might recover if the defendant did not exercise ordinary caution, although the plaintiff’s intestate may have been guilty of a much greater negligence in laying himself down, in a condition of intoxication, near to or upon the track. A similar modification was made to the second instruction. In each there was error.

Reversed.

PICKETT v. WILMINGTON & WELDON RAILROAD COMPANY Supreme Court, North Carolina, September Term, 1895. Reported in 117 North Carolina Reports, 616.

Avery, J. The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff’s intestate deliberately laid down upon the track and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lying there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him.

In Gunter v. Wicker, 85 N. C. 310, this court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 M. & W. (Ex.) 545, that “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” This doctrine was subsequently approved in Saulter v. Steamship Co., 88 N. C. 123; Turrentine v. Railroad, 92 N. C. 638; Meredith v. Iron Co., 99 N. C. 576; Roberts v. Railroad, 88 N. C. 560; Farmer v. Railroad, Ibid. 564; Bullock v. Railroad, 105 N. C. 180; Wilson v. Railroad, 90 N. C. 69; Snowden v. Railroad, 95 N. C. 93; Carlton v. Railroad, 104 N. C. 365; Randall v. Railroad, 104 N. C. 108; Bullock v. Railroad, 105 N. C. 180, and it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to exercise reasonable care in keeping a lookout not only for stock and obstructions but for apparently helpless or infirm human beings on the track, and that the failure to do so supervening after the negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.

[As to argument for defendant.] But the reasons and the authorities relied upon emanate generally from courts which hold that both persons and animals upon a track are trespassers and entitled to consideration only where actually seen in time to save them....

It cannot be denied that, in a number of the states which have adopted the doctrine of Davies v. Mann, it has also been held that both man and beast were trespassers when they went upon a railway track and except at public crossings or in towns it was not the duty of the engineer to exercise care in looking to his front with a view to the protection of either. Where the law does not impose the duty of watchfulness it follows that the failure to watch is not an omission, of duty intervening between the negligence of the plaintiff in exposing himself and the accident, unless he be actually seen in time to avert it. The negligence of the corporation grows out of omission of a legal duty and there can be no omission where there is no duty prescribed.

We are of opinion that, when by the exercise of ordinary care an engineer can see that a human being is lying apparently helpless from any cause on the track in front of his engine in time to stop the train by the use of the appliances at his command and without peril to the safety of persons on the train, the company is liable for any injury resulting from his failure to perform his duty. If it is the settled law of North Carolina (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonably vigilant outlook along the track in his front, then the failure to do so is an omission of a legal duty. If by the performance of that duty an accident might have been averted, notwithstanding the previous negligence of another, then, under the doctrine of Davies v. Mann, and Gunter v. Wicker, the breach of duty was the proximate cause of any injury growing out of such accident, and where it is a proximate cause the company is liable to respond in damages. Having adopted the principle that one whose duty it is to see does see, we must follow it to its logical results. The court committed no error of which the defendant could justly complain in stating the general rule which we have been discussing.

DYERSON v. UNION PACIFIC RAILROAD COMPANY Supreme Court, Kansas, November 10, 1906. Reported in 74 Kansas Reports, 528.

Plaintiff sued for damages caused by being struck by the tender of an engine.

Plaintiff, an employee of the R. R. Co., had occasion to cross the track. As he was about to step upon the track, he was struck by the tender of a locomotive which was backing east at the rate of fifteen or twenty miles an hour without giving a signal of its approach and without keeping a lookout along the track. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked.

At the trial, the court rendered judgment against plaintiff upon his petition and preliminary statement to the jury which disclosed the above facts. Plaintiff brought error.

Mason, J.

Finally it is contended in behalf of the plaintiff that, even admitting his own want of care to have been such as would ordinarily bar a recovery, still he had a right to submit to the jury the question whether the employees in charge of the engine by the use of reasonable diligence could have discovered his negligence in time to avert the accident, and that an affirmative answer would have entitled him to a verdict.

In a number of cases it has been held that if the engineer by the exercise of reasonable diligence could have learned that danger was imminent but did not do so, the liability of the company will be determined in all respects as though he had in fact become aware of it, the constructive knowledge being apparently deemed the equivalent of actual knowledge. It is difficult or impossible to reconcile the decisions upon this and related questions, or to derive from them any generally accepted statement either of principle or result. Many of them are collected and discussed in chapter ix of volume i of Thompson’s Commentaries on the Law of Negligence, especially in sections 222 to 247.

There seems, however, to be no sufficient reason why the mere fact that a defendant is negligent in failing to discover a plaintiff’s negligence, or his danger, should in and of itself exclude all consideration of contributory negligence. Take the not unusual situation of a train being negligently operated, let us say by being run at too high a speed and without proper signals of warning being given. Now, any one injured as a result of such negligence has prima facie a right to recover. But, if his own negligence has contributed to his injury, then ordinarily his right is barred. How is the situation altered if the railroad employees add to their negligence in regard to speed and signals the negligence of failing to keep a sufficient lookout? The negligence is of the same sort; and, if the contributory negligence of the person injured prevents a recovery when but the two elements of negligence are present, consistency requires that it should have the same effect although a third element is added. If in the present case the plaintiff was entitled to recover in spite of his own negligence it must be because the order of its occurrence with respect to that of the defendant made the latter the proximate cause of the injury. This indeed is his contention, and to support it reliance is placed upon the following text, which was quoted with approval in Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, and the substance of which is to be found also in volume xx of the American and English Encyclopædia of Law, at page 137:—

“And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other, after its occurrence, in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of a following injury.” (7 A. & E. Encycl. of L. 387.)

This may be accepted as a correct statement of a principle of universal application, according with both reason and authority, provided the words “after its occurrence” be interpreted to mean after the person concerned had ceased to be negligent. The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary but a reasonable one. The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other. As is said in the paragraph from which the foregoing quotation is made, “it is only when the negligence of one party is subsequent to that of the other that the rule can be invoked.” In a note printed in volume ii of the supplement to the American and English Encyclopædia of Law, at page 64, many recent cases are cited bearing on the subject, and it is said:—

“This so-called exception to the rule of contributory negligence (i. e., the doctrine of ‘the last clear chance’) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.”

In the present case it may be granted that the negligence of the plaintiff began when he walked between the track and the ice-box on the way to get the bucket, and that the employees in charge of the engine were themselves negligent in not discovering this negligence on his part and the peril to which it exposed him, and taking steps to protect him. But his negligence as well as theirs continued up to the moment of the accident, or until it could not possibly be averted. His opportunity to discover and avoid the danger was at least as good as theirs. His want of care existing as late as theirs was a concurring cause of his injury, and bars his recovery. This determination is entirely consistent with what Mr. Thompson in his work above cited has styled the “last clear chance” doctrine, as is obvious from a consideration of the terms in which it is stated. As originally announced it was thus phrased:—

“The party who has the last opportunity of avoiding accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.” (1 Shear. & Red. Law of Neg., 5th ed., § 99.)

Mr. Thompson rewords it as follows:—

“Where both parties are negligent, the one that had the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it—his negligence being deemed the direct and proximate cause of it.” (1 Thomp. Com. Law Neg. § 240.)

Expressions are to be found in the reports seemingly at variance with the conclusion here reached, but for the most part the decisions holding a defendant liable for failure to discover and act upon the plaintiff’s negligence were made in cases which were in fact like Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, or were decided upon the theory that they fell within the same rule. There the plaintiff’s decedent while riding a bicycle was through his own fault run into by a street car; he clung to the fender, was carried some seventy-five feet, then fell under the wheels, and was killed. A judgment against the street-car company was upheld only upon the theory that after he had reached a position of danger from which he could not extricate himself—that is, after his negligence had ceased—the defendant’s employees were negligent in failing to discover his peril and stop the car.

In Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, the writer of the opinion said:—

“I should hesitate to say that if it appeared that the want of ordinary care on the part of the plaintiff, at the very time of the injury, contributed either to produce or to enhance the injury, he could recover; because it seems to me that is equivalent to saying that the plaintiff, by the exercise of ordinary care at the time, could have escaped the injury.” (Page 223.)

The principle thus intimated was embodied in a decision in French v. The Grand Trunk Railway Co., 76 Vt. 441, 58 Atl. 722, where it was said:—

“It is true that when a traveller has reached a point where he cannot help himself, cannot extricate himself, and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury, and will not preclude a recovery; but it is equally true that if a traveller, when he reaches the point of collision, is in a situation to help himself, and by a vigilant use of his eyes, ears, and physical strength to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. In such a case the negligence of the plaintiff is concurrent with the negligence of the defendant, and the negligence of each is operative at the time of the accident. When negligence is concurrent and operative at the time of the collision, and contributes to it, there can be no recovery.” (Page 447.)

To the same effect are these extracts:—

[As to the rule holding the defendant liable notwithstanding the contributory negligence of the plaintiff.]

Of the same rule it was said in O’Brien v. McGlinchy, 68 Me. 552:

“This rule applies usually in cases where the plaintiff or his property is in some position of danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot and the defendant can prevent an injury.... But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.” (Pages 557, 558.)

In Smith v. Railroad, 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287, the general rule was thus concretely stated:—

“Applying the rule which we have stated to accidents upon railroad tracks, it may be illustrated as follows: First, there must be a duty imposed upon the engineer, as otherwise there can be no negligence to which the negligence of the injured party is to contribute. The duty under consideration is to keep a vigilant lookout ... in order to discover and avoid injury to persons who may be on the track and who are apparently in unconscious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision, when he could have done so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence of the engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A, being on the track and after this decisive negligence, fails to look and listen and is in consequence run over and injured, his negligence is not concurrent merely but really subsequent to that of the engineer, and he cannot recover, as he and not the engineer has ‘the last clear opportunity of avoiding the accident.’ If, however, A is on the track ... and while there, and before the decisive negligence of the engineer, he by his own negligence becomes so entangled in the rails that he cannot extricate himself in time to avoid the collision, and his helpless condition could have been discovered had the engineer exercised ordinary care, then the negligence of A would be previous to that of the engineer, and the engineer’s negligence would be the proximate cause, he, and not A, having the last clear opportunity of avoiding the injury. The same result would follow in the case of a wagon negligently stalled, when no effort of the owner could remove it, and there are other cases to which the principle is applicable.” (Pages 755, 756.)

The principle running through these cases is reasonable and is consistent with the general rules that have met with practically universal acceptance. Applied to the facts of this case it requires an affirmance of the judgment.

All the Justices concurring.

Baker, J., IN CLEVELAND R. CO. v. KLEE (1900) 154 Indiana, 430, 434, 435.

Baker, J. It is alleged in the fifth paragraph: “That on or about the 22d day of June, 1894, this plaintiff, a child nine years of age, was on the said crossing of Georgia and Helen streets and upon said track of said defendant in said Georgia Street; and while in said position and place, the defendant through and by its said employees and servants, ran said locomotive against this plaintiff and negligently dragged this plaintiff without fault or negligence on his part, a long distance, to wit, two hundred feet; that the defendant knew that it had run its locomotive against this plaintiff at said crossing; and knew that it had knocked this plaintiff down in front of its said locomotive upon its said track; and knew that this plaintiff was dragging in front of said locomotive on said track; but that this defendant negligently failed to stop said locomotive before this plaintiff was injured, although by the exercise of due care and caution it could have stopped said locomotive before this plaintiff was injured; but negligently dragged this plaintiff as aforesaid, without fault or negligence on the part of this plaintiff, and negligently injured this plaintiff in his body, back, and limbs.” The injury for which compensation is sought in this paragraph was not sustained in the collision at the crossing, but was wholly inflicted after appellant knew that appellee was being dragged along the track in front of the engine. By the exercise of due care appellant could have stopped the engine before appellee was injured, but failed to do so. Appellee, after being struck and while being dragged along the track, was free from fault contributing to his injury. These allegations constitute a cause of action. Though the paragraph confesses, by not denying, that appellee was guilty of negligence in being upon the track, that negligence was only the remote condition, not the proximate cause, of the injury complained of; for the injury resulted, after the collision, entirely from occurrences in which it is alleged that appellant was negligent and appellee was not.

HOLMES v. MISSOURI PACIFIC RAILWAY COMPANY Supreme Court, Missouri, November 27, 1907. Reported in 207 Missouri Reports, 149.

Action by C. W. Holmes and wife to recover for the death of their child, F. G. Holmes. The child, eight years old, was struck and killed by a locomotive engine at the crossing of an avenue. Two points in conflict were, whether defendant was negligent, and whether the child was contributorily negligent.

The following instruction was given at plaintiff’s request: “(4) If the jury believe from the evidence that Freeborn G. Holmes was a boy of immature age, and had not the capacity of an adult, and that he exercised such care as ought reasonably to have been expected for one of his age and capacity, then he was not guilty of contributory negligence.”

To this instruction defendant excepted.

An instruction given at the request of defendant was, that, if the child failed to exercise such care and caution as an ordinarily prudent boy of his age and capacity should have exercised under the circumstances, and by reason thereof contributed to his own death, then your verdict must be for the defendant, regardless of all other facts in the case.

Verdict for plaintiff. Judgment for plaintiff in Circuit Court. Defendant appealed.

Valliant, J.... In the brief for defendant, pages 61 and 139, the idea is advanced that the only theory on which the plaintiffs’ judgment could be sustained would be that the defendant is liable for the consequences of the reckless conduct of the deceased child. That is a misconception of the theory on which the defendant’s liability rests. The defendant is liable only for its own negligence, and if its plea of contributory negligence is not sustained, still, it is not charged with the consequence of the child’s negligence; but it is only not excused thereby for the result of its own negligence. It is not always essential to a plaintiff’s recovery, in an action for tort, that the evidence should show that the accident was the result of the defendant’s negligence alone. A defendant may be liable if his negligence contributes with that of a third person to produce the injury complained of; in such case he is not held liable for the negligence of the third person, but only for his own negligence, without the contributing force of which the negligence of the third person would not have caused the injury. But the policy of the law is such that ordinarily a defendant guilty of negligence is relieved from the liability for his own conduct if the person injured was himself guilty of negligence that contributed to the result. On that theory the defendant’s act is none the less negligent, and he is none the less culpable, but the law will not allow a plaintiff to recover when he himself, or the person for whose injury he sues, was also guilty of negligence contributing with that of defendant to the result. There is reason and justice in that policy of the law; it is an admonition to every one to exercise due care for his own safety, and it authorizes another to presume that he will do so, and, so presuming, adjust his own conduct. But common experience tells us that a child may be too young and immature to observe the care necessary to his own preservation and therefore when a person comes in contact with such a child, if its youth and immaturity are obvious, he is chargeable with knowledge of that fact and he cannot indulge the presumption that the child will do what is necessary to avoid an impending danger. Therefore one seeing such a child in such a position is guilty of negligence if he does not take into account the fact that it is a child and regulate his own conduct accordingly. An act in relation to a person of mature years might be free from the imputation of negligence while an act of like character in view of a child would be blameworthy. Therefore when the law says to the defendant although the act of the deceased child contributed with your act to produce the result, yet, because of his youth and immaturity, he is not adjudged guilty of negligence, it does not charge the defendant with the consequence of the child’s conduct, but it only does not, for that reason, excuse him for its [his] own negligence.

If the defendant in such case had been guilty of no negligence there would have been no accident.

Judgment affirmed.

Gantt, C. J., and Burgess, Lamm, and Woodson, JJ., concur. Fox and Graves, JJ., dissent.

CULBERTSON v. CRESCENT CITY RAILROAD CO. Supreme Court, Louisiana, April 6, 1896. Reported in 48 Louisiana Annual Reports, Part 2, 1376.

Plaintiff sued for the killing of his son, 6 years and 11 months old, who was hit by a car at a street crossing.

In the District Court, there was a verdict for plaintiff, and judgment thereon. Defendant appealed.

Breaux, J. [After stating the claims of both parties, and reciting the testimony of plaintiff’s witnesses and of part of defendant’s witnesses.]

The motorman and the conductor substantially testify that everything was done to prevent the accident; that the boy darted in front of the car and, that the motorman quickly stopped the car.

After as careful and close an analysis of the evidence as it was possible for us to make, we think that the weight of the testimony is with the defendant.

Plaintiff’s theory that the little boy was standing on the track, between the rails, and that the motorman ought to have seen him, is not sustained by the evidence of his own witnesses; they do not testify, with any degree of certainty, where he was just preceding the accident. The witnesses for the defendant agree in stating that he was not on the track, and that the accident was occasioned by the sudden act of the child.

Granted as contended by the plaintiff that the motorman did not see the child before he was knocked down by the fender: if the child had escaped his attention, because of his sudden and unanticipated act itself, it becomes evident that the defendant is not liable. Whether he was seen or was not seen by the motorman would not render the defendant responsible, if owing to thoughtless impulse of the child he brought about the accident by a sudden act which could not be foreseen or guarded against by the motorman or any one else in charge of the car.

This brings us to the question of contributory negligence. Courts are averse to finding children guilty of contributory negligence, and are readily and properly inclined to disregard the thoughtlessness natural to boyhood, but accidents may happen for which the unconscious agent may not be responsible.

The fact that a child may not be capable of contributory negligence does not always render a defendant liable upon the mere proof of the injury. The test is negligence vel non. If the defendant or the defendant’s agent or employee was not negligent, it is not liable.

The only alternative, after the conclusion reached, is to set aside the verdict.

The verdict and judgment are reversed, annulled and avoided.

The demand of plaintiff is rejected and his action dismissed at his cost in both courts.

HUTCHINSON v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY St. Louis Court of Appeals, Missouri, April 9, 1901. Reported in 88 Missouri Appeal Reports, 376.

Appeal from St. Louis City Circuit Court.

Plaintiff (respondent) was injured while driving on the track of the street railroad at the crossing of two streets. The car collided with the rear of his wagon. Plaintiff testified that he had been driving for some three hundred yards with the left wheels of his wagon inside the north rail. Defendant’s (appellant’s) testimony tended to prove that plaintiff did not drive on the track until he had either reached or was near the crossing, and that he then turned and drove onto the track, when the motor car coming up from behind collided with the rear of his wagon.

What is undisputed is, that he did not look back to see if a car was coming before attempting to cross, nor, according to his own testimony, after he drove onto the track three hundred yards or more to the east. He drove very slowly. There was testimony tending to show the motorneer in charge of the car was watching a train on the railroad just south of Manchester avenue, which inattention prevented him from observing plaintiff’s perilous position until the car was within twenty or thirty feet of the wagon. He was required by a city ordinance, to be watching the track.

The evidence as to the warning of the car’s approach was conflicting.

The plaintiff was entitled to the use of the entire street, and, therefore, was not a trespasser, while the defendant was entitled to the right of way.

Failure to signal the car’s approach was omitted from the instructions. The only ground of recovery submitted to the jury was alleged negligence of the defendant’s motorneer in not using ordinary care to avoid injuring plaintiff after he knew, or by the proper care might have known, the latter was in a dangerous position. One instruction was given that plaintiff was guilty of contributory negligence if he failed to look back at reasonable intervals to see if a car was coming and to get off the track if he saw one. This was practically telling them he was actually negligent, for he admitted he did not look back.

Goode, J. The general principle on which the case was referred to the jury, commonly styled the humane doctrine, is well supported by authorities. It is accepted in some form in most of the state and federal jurisdictions. So far as this court is concerned, the rule is no longer debatable. All uncertainty about it being a substantive part of the law of torts has been set at rest by recent deliberate pronouncements of the Supreme Court. The authority of the rule is not impugned by the learned counsel for the appellant, who only insist that it is inapplicable to the cause in hand on account of the plaintiff’s clear contributory negligence which continued to the moment of the collision. This contention requires a brief examination of some cases in which the doctrine has been applied. They divide into two classes and the disputation which has raged over it has been on the border line between the two. As enforced in one class, the rule has always seemed to the writer to be a phase of the doctrine of proximate cause, consistent with the theory of the entire law of negligence and without which the system would be incomplete. These instances are where the plaintiff’s negligent act was detached from the injury so that the defendant’s want of care was the sole active agency in inflicting it. When an accident happens under such circumstances, the plaintiff ought not to be refused a recovery because, though remiss, his fault does not contribute to the injury. Illustrations of this class of cases are numerous in the books, beginning with the one from which all the others proceeded. Davies v. Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his beast in the highway and the defendant’s servant drove over him. It is manifest that the original negligence of the owner was separated from the injury, which was proximately caused solely by the defendant’s tort. Another apt illustration is found in the Reardon case (114 Mo. 384), where the plaintiff carelessly went on the railway track and fell in endeavoring to get off when he saw a train coming. It was held that if the engineer failed to employ ordinary care to stop the train when he saw him prostrate, the company was liable. The same ruling has been made in actions where plaintiffs had fallen asleep on tracks or become fastened in cattle guards or switches or where the person hurt was a child or otherwise not of full legal capacity (Gabel v. Railway Co., 60 Mo. 475). The doctrine is exclusively met with, so far as our reading has shown, in controversies arising from injuries due to violent impacts and collisions. The above instances exemplify its use in such cases where properly expounded, it does not clash with the doctrine of contributory negligence, though some of the applications made have laid it open to that charge. The reconciliation and harmonious working of the two rules may be achieved by considering closely whether the defendant’s carelessness was alone the proximate cause of the injury. If only the defendant’s was the proximate cause, the plaintiff, while guilty of negligence, was not guilty of contributory negligence; his failure to use care did not proximately contribute to the mischief. Time elapsed between his wrongful act and the injury, during which the wrongful act of the defendant supervened or entered, as a separate agency, which, by its own independent action, wrought the unfortunate result. If, however, the plaintiff’s want of care continues to the instant of the accident, or so near the instant as to be immediately influential in producing it, he is as much to blame as the defendant, and if the latter is compelled to compensate him, the theory of the law of negligence is thus far abandoned. When it is deemed expedient to allow a recovery under such circumstances, it must be done as a measure of public policy. The rule then becomes, in fact, an exception to the law of contributory negligence, as was said in Kelly v. Railway Co., 101 Mo. 67. The real basis of it, as it obtains in many jurisdictions in respect to injuries by cars and locomotives when the injured individual was negligent to the very instant of the collision, is to be sought, on an ultimate analysis, in its supposed necessity for the public security. The guilt of the plaintiff is excused, while that of the defendant is punished. In such instances, its administration in cases of injuries by cars and engines is attended with serious difficulty, viz.: determining when the employees of the railway company may be justly said to have had notice that the injured party was in a position of danger. Persons frequently remain on railway tracks when a car or train is approaching, until it would be impossible to stop it in time to avoid striking them, but easily get off themselves in time. Accustomed to take care of their safety where cars are constantly moving, they grow dexterous in avoiding them and run risks. Engineers and motormen have a right to presume an individual travelling on the track will leave it, and to act on that presumption until his situation becomes alarming. Riley v. Railway Company, 68 Mo. App. 661. Just when this happens must often be largely conjectural, which circumstance weighs heavily with many against the rule in question.

The doctrine in its wider scope prevails in this State. The plaintiff may recover, notwithstanding his negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was sustained, this language is spoken: “There can be no doubt, under the evidence, that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants in charge of the train, and the negligence of the deceased himself contributing thereto.” Similar expositions have been made in many other cases. Schmidt v. R’y Co., 50 S. W. 921; Klockenbrink v. Railway Co., 81 Mo. App. 351; Cooney v. Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in Hogan v. R’y Co., 150 Mo. 36. We must follow the latest controlling decision. The Morgan case was decided in banc.

In view of the strong utterances to be found in the foregoing authorities, it is useless to descant on the wisdom or fallacy of the rule, to explore its foundation, extol its justice, or regret its hardship. Our unmistakable duty is to enforce it as we would any other part of the law. The present case differs in no material respect, calling for its application, from the Morgan or Cooney cases, supra, which become therefore controlling precedents. The Morgan case is stronger because there the engineer did not see the deceased, who was flagrantly careless, to the time the engine struck him; here the motorman did not see the plaintiff. The court below did not err in refusing an instruction to find the issue for the defendant, but rightly submitted them. This practically disposes of the case.

Judgment affirmed.

STEINMETZ v. KELLY Supreme Court, Indiana, November Term, 1880. Reported in 72 Indiana Reports, 442.

Worden, J. Action by the appellee against the appellant for assault and battery. The complaint consisted of three paragraphs, a demurrer to each of which, for want of sufficient facts, was overruled. The first, the only one to which any specific objection is made in this Court, alleged that the defendant, on, &c., “violently and unlawfully assaulted the plaintiff, and struck him, and also threw him, the plaintiff, from the house of the defendant on to the street pavement, in front of the defendant’s house, with great violence, fracturing,” &c.

The defendant answered:—

First. [That there was a justifiable occasion for his use of force, and that he used no more force than was necessary.]

Second. General denial.

The plaintiff replied by general denial to the first paragraph of the answer. Trial by jury, verdict and judgment for the plaintiff for $500.

The counsel for the appellant in their brief say: “We shall not stop now to discuss the merits of the complaint further than to say that the first paragraph of the complaint shows an eviction from the defendant’s premises, and we have thought that the paragraph should aver that the injury occurred without the fault of the plaintiff.” The paragraph does not charge an injury to the plaintiff arising out of the negligence of the defendant, but an unlawful assault upon, and battery of, the plaintiff’s person. In such cases it is not necessary to allege that the plaintiff was without fault, or, in other words, was not guilty of contributory negligence. There remains nothing more to be considered except such questions as arise on a motion for a new trial.

[Omitting part of opinion.]

The defendant asked that the following interrogatory be answered by the jury, if they should return a general verdict, viz.: “Did the fault or negligence of the plaintiff contribute in any way to the injury of the plaintiff, received on the evening of the 3d of March, 1876?” The Court declined to direct the jury to answer the interrogatory, and in this we think no error was committed.

The right of the plaintiff to recover depended not upon any negligence of the defendant, but upon the assault and battery, which, if perpetrated at all by the defendant, was intentional and purposed. It may be that the defendant did not intend to inflict so severe an injury upon the plaintiff as seemed to result from the excess of force applied by him; but it does not therefore follow that he did not intend to apply that force.

The doctrine that contributory negligence on the part of the plaintiff will defeat his action has been generally applied in actions based on the negligence of the defendant, in short, in cases involving mutual negligence. But it has also been applied in some cases where the matter complained of was not negligence merely, but the commission of some act in itself unlawful, without reference to the manner of committing it, as the wilful and unauthorized obstruction of a highway, whereby a person is injured. Butterfield v. Forrester, 11 East, 60; Dygert v. Schenck, 23 Wend. 446.

The doctrine, however, can have no application to the case of an intentional and unlawful assault and battery, for the reason that the person thus assaulted is under no obligation to exercise any care to avoid the same by retreating or otherwise, and for the further reason that his want of care can in no just sense be said to contribute to the injury inflicted upon him by such assault and battery.

An intentional and unlawful assault and battery inflicted upon a person is an invasion of his right of personal security, for which the law gives him redress, and of this redress he cannot be deprived on the ground that he was negligent and took no care to avoid such invasion of his right.

The trespass was purposely committed by the defendant. If he could excuse it on the ground of the alleged misconduct of the plaintiff, and if he employed no more force than was necessary and reasonable, that was a complete defence. Otherwise the plaintiff, if he made out the trespass, was entitled to recover, and no negligence on his part, as before observed, could defeat his action. The case of Ruter v. Foy, 46 Iowa, 132, is in point. There the plaintiff alleged that the defendant had assaulted and beat her with a pitchfork. On the trial the defendant asked, but the Court refused, the following instruction: “If you find from the evidence that the plaintiff was injured, or contributed to her injury, by her own act or negligence, defendant would not be liable for assault and battery upon her, and plaintiff cannot recover.” On appeal the Court said upon this point: “The doctrine of contributory negligence has no application in an action for assault and battery.”

The case here is entirely unlike that of Brown v. Kendall, 6 Cush. 292. There the defendant’s dog and another were fighting. The defendant was beating the dogs with a stick in order to separate them, in doing which he accidentally hit the plaintiff in the eye with the stick. It was held that trespass vi et armis was the proper form of action, because the injury to the plaintiff was immediate; but that as the parting of the dogs was a proper and lawful act, and as the hitting of the plaintiff was not intentional, but a mere accident or casualty, the plaintiff could not recover at all without showing a want of ordinary care on the part of the defendant; and then that contributory negligence on the part of the plaintiff would defeat the action.

Although, according to the common-law system of pleading, trespass vi et armis was the proper form of action in such case, the essential and only ground on which the action could rest was the negligence of the defendant in doing an act lawful in itself whereby the plaintiff was injured, and this is so as fully as if the plaintiff had framed his declaration in case for the negligence.

The difference between that case and the present is substantial and vital. In that case the battery was unintentional, and the defendant therein was guilty of no wrong save his negligence. Here the defendant intentionally perpetrated the battery, and the plaintiff’s right to recover was not based upon the negligence of the defendant at all.

[Omitting part of opinion.]

We find no error in the record.

The judgment below is affirmed with costs.

Petition for a rehearing overruled.

Judgement affirmed.

AIKEN v. HOLYOKE STREET RAILWAY CO. Supreme Judicial Court, Massachusetts, October 21, 1903. Reported in 184 Massachusetts Reports, 269.

Tort by an infant against a street railway company for personal injuries. Writ dated July 6, 1898.

At a previous stage of this case, reported in 180 Mass. 8, the plaintiff’s exceptions were sustained by this court after a verdict had been ordered in the Superior Court for the defendant. At the new trial in the Superior Court before Lawton, J., the jury returned a verdict for the plaintiff in the sum of $5000. The defendant alleged exceptions, raising the questions stated by the court.

Knowlton, C. J. The most important question in this case grows out of the instructions to the jury upon the third count. This count charges the defendant, by its servants, with having started up the car recklessly, wantonly and with gross disregard of the plaintiff’s safety, while he was in a place of great peril upon the step of the car, and with having thrown him upon the ground and under the wheels of the car. There was evidence tending to show that the plaintiff, a boy six and one half years of age, ran near or against the car, and was upon the lower step at the forward end as the car was going around a curve from one street into another, and was clinging to the step trying to get into a stable position, and that he there cried out to the motorman, “Let me off”; that the motorman saw and heard him and knew that he was in a place of danger, and that he then turned on the power in a wanton and reckless way, with a view to start the car quickly, and that the plaintiff was thus thrown off and injured. This testimony was contradicted, but it was proper for the consideration of the jury. The judge instructed the jury that if they found the facts to be in accordance with this contention of the plaintiff, they would be warranted in finding that the conduct of the motorman was wanton and reckless, and in returning a verdict for the plaintiff. He also instructed them that to maintain the action on this ground, it must be proved that the motorman wilfully and intentionally turned on the power, with a view to making the car start forward rapidly and go at full speed quickly, but that it was not necessary to prove that he did this with the intention of throwing the boy off and injuring him. He also told them that to warrant a recovery upon this state of facts, the plaintiff need not show that he was in the exercise of due care. The defendant excepted to that part of the instruction which relates to due care on the part of the plaintiff.

The defendant contends that while it was not necessary for the plaintiff to show due care anterior to the act of the motorman, he was bound to show due care which was concurrent with this act and immediately subsequent to it. This brings us to a consideration of the rules and principles applicable to this kind of liability. It is familiar law that in the absence of a statutory provision, mere negligence, whatever its degree, if it does not include culpability different in kind from that of ordinary negligence, does not create a liability in favor of one injured by it, if his own negligence contributes to his injury. It is equally true that one who wilfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. The difference in rules applicable to the two classes of cases results from the difference in the nature of the conduct of the wrong-doers in the two kinds of cases. In the first case the wrong-doer is guilty of nothing worse than carelessness. In the last he is guilty of a wilful, intentional wrong. His conduct is criminal or quasi criminal. If it results in the death of the injured person, he is guilty of manslaughter. Commonwealth v. Pierce, 138 Mass. 165; Commonwealth v. Hartwell, 128 Mass. 415. The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defence to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence, becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. That this constructive intention to do an injury in such cases will be imputed in the absence of an actual intent to harm a particular person, is recognized as an elementary principle in criminal law. It is also recognized in civil actions for recklessly and wantonly injuring others by carelessness. Palmer v. Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250; Shumacher v. St. Louis & San Francisco Railroad, 39 Fed. Rep. 174; Brannen v. Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115. In an action to recover damages for an assault and battery, it would be illogical and absurd to allow as a defence, proof that the plaintiff did not use proper care to avert the blow. See Sanford v. Eighth Avenue Railroad, 23 N. Y. 343, 346. It would be hardly less so to allow a similar defence where a different kind of injury was wantonly and recklessly inflicted. A reason for the rule is the fact that if a wilful, intentional wrong is shown to be the direct and proximate cause of an injury, it is hardly conceivable that any lack of care on the part of the injured person could so concur with the wrong as also to be a direct and proximate contributing cause to the injury. It might be a condition without which the injury could not be inflicted. See Newcomb v. Boston Protective Department, 146 Mass. 596. It might be a remote cause, but it hardly could be a cause acting directly and proximately with the intentional wrongful act of the offender. Judson v. Great Northern Railway, 63 Minn. 248, 255. The offence supposed is different in kind from the plaintiff’s lack of ordinary care. It is criminal or quasi criminal. Not only is it difficult to conceive of a plaintiff’s negligence as being another direct and proximate cause foreign to the first, yet acting directly with it, but it would be unjust to allow one to relieve himself from the direct consequences of a wilful wrong by showing that a mere lack of due care in another contributed to the result. The reasons for the rule as to the plaintiff’s care in actions for ordinary negligence are wanting, and at the same time the facts make the rule impossible of application. The general rule that the plaintiff’s failure to exercise ordinary care for his safety, is not a good defence to an action for wanton and wilful injury caused by a reckless omission of duty, has been recognized in many decisions, as well as by writers of text-books. Aiken v. Holyoke Street Railway, 180 Mass. 8, 14, 15; Wallace v. Merrimack River Navigation & Express Co., 134 Mass. 95; Banks v. Highland Street Railway, 136 Mass. 485, 486; Palmer v. Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250; Brannen v. Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115; Florida Southern Railway v. Hirst, 30 Fla. 1; Shumacher v. St. Louis & San Francisco Railroad, 39 Fed. Rep. 174; 7 Am. & Eng. Encyc. of Law (2d ed.) 443 and note; Beach, Contr. Neg. (3d ed.) §§ 46, 50, 64, 65; Wood, Railroads (2d ed.), 1452; Elliott, Railroads, § 1175; Thompson, Neg. § 206; Cooley, Torts (2d ed.), 810. We have been referred to no case in which it is held that it makes any difference whether the plaintiff’s lack of ordinary care is only previous to the defendant’s wrong and continuing to the time of it, or whether there is such a lack after the wrong begins to take effect. It is difficult to see how there can be any difference in principle between the two cases. In this Commonwealth, as in most other jurisdictions, liability does not depend upon which of different causes contributing to an injury is latest in the time of its origin, but upon which is the direct, active, efficient cause, as distinguished from a remote cause, in producing the result.

There are expressions in some of the cases which imply the possibility of contributory negligence on the part of the plaintiff in a case of wanton and reckless injury by a defendant. If there is a conceivable case in which a plaintiff’s want of due care may directly and proximately contribute as a cause of an injury inflicted directly and proximately by the wilful wrong of another, such a want of care must be something different from the mere want of ordinary care to avoid an injury coming in a usual way. There is nothing to indicate the existence of peculiar conditions of this kind in the present case. Conduct of a plaintiff which would be negligence precluding recovery if the injury were caused by ordinary negligence of a defendant, will not commonly preclude recovery if the injury is inflicted wilfully through wanton carelessness. This is illustrated by the former decision in this case and by many others. Aiken v. Holyoke Street Railway, 180 Mass. 8; McKeon v. New York, New Haven, & Hartford Railroad, 183 Mass. 271. As to this kind of liability of the defendant, it was certainly proper to instruct the jury that, in reference to ordinary kinds of care to avoid an injury from a car, the plaintiff need not show that he was in the exercise of due care if a lack of such care would have no tendency to cause the wilful and wanton injury. The fair interpretation of the instruction given is, that it referred to ordinary kinds of care to avoid an injury from an electric car. On this branch of the case there seems to have been no reason for an instruction in regard to any special care, and probably neither counsel nor the court had any care in mind except that, in reference to which, in any view of the law, the instruction was properly given. We are of opinion that the ruling excepted to was correct.

[Omitting opinion on other points.]

Exceptions overruled.

BANKS v. BRAMAN Supreme Judicial Court, Massachusetts, June 20, 1905. Reported in 188 Massachusetts Reports, 367.

Tort, for injuries from being struck by an automobile driven by the defendant on Mount Auburn Street in Cambridge near its intersection with Belmont Street shortly after eight o’clock on the evening of May 17, 1903. Writ dated November 18, 1903.

At the trial in the Superior Court before Aiken, C. J., the jury returned a verdict for the plaintiff in the sum of $3750; and the defendant alleged exceptions, raising the questions stated by the court.

Knowlton, C. J. This is an action to recover for injuries received from being struck by an automobile alleged to have been negligently run at an excessive rate of speed, and negligently managed by the defendant. The case was submitted to the jury on two alleged grounds of liability: one, that the defendant, with gross negligence, wantonly and recklessly injured the plaintiff, and the other that the plaintiff was in the exercise of due care, and that the injury was due to the defendant’s negligence. On the first claim the judge instructed the jury as follows: “Gross negligence is great negligence. To make out the proposition of gross negligence, you must be satisfied that the way the machine was operated by Braman was reckless, was careless to the degree of recklessness; that it was run with a reckless disregard to the rights of Banks in this street. If that is established, namely, that there was a reckless disregard of the rights of Banks in the way this machine was run, then Banks is not required to show that he was himself in the exercise of due care. If the way—I repeat this for the purpose of plainness perhaps unnecessarily—if the manner in which the machine—the automobile, I mean by the machine—was run on the occasion of this accident was such that it was grossly negligent, that is, careless to such a degree that you can say it was reckless, using your common sense and judgment, and applying them to the evidence, then Banks is not required to show that he was in the exercise of due care; because if the defendant’s carelessness was gross in the sense that has been defined to you, there is an obligation to pay damages independent of the matter of due care.” The defendant excepted to this instruction. The jury were instructed as to the liability for a failure to exercise ordinary care, but there was no fuller statement of the law on this branch of the case.

The question is whether the difference between the two kinds of liability was sufficiently pointed out to give the jury an adequate understanding of it. The difference in culpability of the defendant, which distinguishes these different kinds of liability, is something more than a mere difference in the degree of inadvertence. In one case there need be nothing more than a lack of ordinary care, which causes an injury to another. In the other case there is wilful, intentional conduct whose tendency to injure is known, or ought to be known, accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together, is of the nature of a wilful, intentional wrong.

[Here the learned judge quoted at length from Aiken v. Holyoke Street Railway, 184 Mass. 269, 271.]

In dealing with the same subject in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 134, the court said: “The conduct which creates a liability to a trespasser in cases of this kind has been referred to in the books in a variety of ways. Sometimes it has been called gross negligence and sometimes wilful negligence. Plainly it is something more than is necessary to constitute the gross negligence referred to in our statutes and in decisions of this court. The term ‘wilful negligence’ is not a strictly accurate description of the wrong. But wanton and reckless negligence in this class of cases includes something more than ordinary inadvertence. In its essence it is like a wilful, intentional wrong. It is illustrated by an act which otherwise might be unobjectionable, but which is liable or likely to do great harm, and which is done in a wanton and reckless disregard of the probable injurious consequences.” The ground on which it is held that, when an act of the defendant shows an injury inflicted in this way, the plaintiff need introduce no affirmative evidence of due care, is that such a wrong is a cause so independent of previous conduct of the plaintiff, which, in a general sense, may fall short of due care, that this previous conduct cannot be considered a directly contributing cause of the injury, and, in reference to such an injury, the plaintiff, without introducing evidence, is assumed to be in a position to claim his rights and to have compensation. So far as the cause of his injury is concerned, he is in the position of one who exercises due care. Aiken v. Holyoke Street Railway, ubi supra.

It is not easy to explain to a jury the nature of this liability. What was said by the judge in this case comes very near to a correct statement of the law. But it lacks something in fulness, and we think the jury may have understood that negligence somewhat greater in degree than a mere lack of ordinary care or a simple inadvertence, but not different from it in kind, would constitute the gross negligence referred to. We are of opinion that when there is an attempt to establish this peculiar kind of liability, which exists independently of a general exercise of due care by the plaintiff, the jury should be instructed with such fulness as to enable them to know that they are dealing with a wrong materially different in kind from ordinary negligence. Because we think the instruction may have left the jury with a misunderstanding of the law, the exceptions are sustained.

We are of opinion that there was evidence which justified the submission of the case to the jury on this ground, as well as on the ground that the plaintiff was in the exercise of due care.

Exceptions sustained.

GEORGIA PACIFIC RAILWAY CO. v. LEE Supreme Court, Alabama, November Term, 1890. Reported in 92 Alabama Reports, 262.

McClellan, J. ... Many of the rulings of the trial court in defining the gross negligence, recklessness or wantonness on the part of the defendant, which will authorize recovery, notwithstanding plaintiff’s contributory negligence, are presented for review. The fault in the court’s definitions in this regard lies, in our opinion, in the assumption that recklessness or wantonness implying wilful and intentional wrong-doing may be predicated of a mere omission of duty, under circumstances which do not, of themselves, impute to the person so failing to discharge the duty a sense of the probable consequences of the omission. The charges given by the court in this connection, and its rulings on charges requested by the defendant, proceed on the theory that a mere failure on the part of defendant’s employees to see plaintiff’s wagon and team as soon as they might have seen them by the exercise of due care was such recklessness or wantonness as implies a willingness or a purpose on their part to inflict the injury complained of. We do not think this proposition can be maintained either logically or upon the authorities. The failure to keep a lookout, which it was the duty of defendant’s employees to maintain, and which would have sooner disclosed the peril of the driver and plaintiff’s wagon and team—even conceding that such would have been the case—was, at the most, mere negligence, inattention, inadvertence; and it cannot be conceived, in the nature of things, how a purpose to accomplish a given result can be imputed to mental conditions, the very essence of which is the absence of all thought on the particular subject. To say that one intends a result which springs solely from his mind not addressing itself to the factors which conduce to it, to imply a purpose to do a thing from inadvertence in respect of it, are contradictions in terms. Wilful and intentional wrong, a willingness to inflict injury, cannot be imputed to one who is without consciousness, from whatever cause, that his conduct will inevitably or probably lead to wrong and injury. In the case at bar, this consciousness could not exist on the part of defendant’s employees until they knew plaintiff’s wagon and team were in a position of danger; and no degree of ignorance on their part of this state of things, however reprehensible in itself, could supply this element of conscious wrong, or reckless indifference to consequences, which, from their point of view, would probably or necessarily ensue.

The true doctrine, and that supported by many decisions of this court, as well as the great weight of authority in other jurisdictions, is that notwithstanding plaintiff’s contributory negligence he may yet recover, if, in a case like this, the defendant’s employees discover the perilous situation in time to prevent disaster by the exercise of due care and diligence, and fail, after the peril of plaintiff’s property becomes known to them as a fact—and not merely after they should have known it—to resort to all reasonable effort to avoid the injury. Such failure, with such knowledge of the situation and the probable consequences of the omission to act upon the dictates of prudence and diligence to the end of neutralizing plaintiff’s fault and averting disaster, notwithstanding his lack of care, is, strictly speaking, not negligence at all, though the term “gross negligence” has been so frequently used as defining it that it is perhaps too late, if otherwise desirable, to eradicate what is said to be an unscientific definition, if not indeed a misnomer; but it is more than any degree of negligence, inattention or inadvertence—which can never mean other than the omission of action without intent, existing or imputed, to commit wrong—it is that recklessness, or wantonness, or worse, which implies a willingness to inflict the impending injury, or a wilfulness in pursuing a course of conduct which will naturally or probably result in disaster, or an intent to perpetrate wrong. The theory of contributory negligence, as a defence, is that, conjointly with negligence on the part of the defendant, it conduces to the damnifying result, and defeats any action, the gravamen of which is such negligence. If defendant’s conduct is not merely negligent, but worse, there is nothing for plaintiff’s want of care to contribute to—there is no lack of mere prudence and diligence of like kind on the part of defendant to conjunctively constitute the efficient cause. Mere negligence on the one hand cannot be said to aid wilfulness on the other. And hence such negligence of a plaintiff is no defence against the consequences of the wilfulness of the defendant. But nothing short of the elements of actual knowledge of the situation on the part of defendant’s employees, and their omission of preventive effort after that knowledge is brought home to them, when there is reasonable prospect that such effort will avail, will suffice to avoid the defence of contributory negligence on the part of, or imputable to, the plaintiff.

KELLOGG v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY Supreme Court, Wisconsin, June Term, 1870. Reported in 26 Wisconsin Reports, 223.

Action to recover damages for destruction of hay, sheds, stables, &c., by a fire alleged to have originated in the negligence of the railway company. Fire was communicated by sparks from railroad engine to dry grass, weeds, &c., which had been allowed to accumulate on defendant’s land, on both sides of the track; and thence the fire passed upon plaintiff’s land where dry grass and weeds had also been permitted to accumulate. A strong wind was blowing from the track toward plaintiff’s buildings, about one hundred and forty rods distant. The dry and combustible matter on the railroad land and on plaintiff’s land, together with the wind, served to carry the fire to plaintiff’s building, &c., which were destroyed.

Trial; verdict and judgment for plaintiff. Defendant appealed.

Dixon, C. J. All the authorities agree that the presence of dry grass and other inflammable material upon the way of a railroad, suffered to remain there by the company without cause, is a fact from which the jury may find negligence against the company. The cases in Illinois, cited and relied upon by counsel for the defendant, hold this. They hold that it is proper evidence for the jury, who may find negligence from it, although it is not negligence per se. Railroad Co. v. Shanefelt, 47 Ill. 497; Illinois Central Railroad Co. v. Nunn, 51 id. 78; Railroad Co. v. Mills, 42 id. 407; Bass v. Railroad Co., 28 id. 9. The Court below ruled in the same way, and left it for the jury to say whether the suffering of the combustible material to accumulate upon the right of way and sides of the track, or the failure to remove the same, if the jury so found, was or was not, under the circumstances, negligence on the part of the company. No fault can be found with the instructions in this respect; and the next question is as to the charge of the Court, and its refusal to charge, respecting the alleged negligence of the plaintiff contributing, as it is said, to the loss or damage complained of. This is the leading and most important question in the case. It is a question upon which there is some conflict of authority.

The facts were, that the plaintiff had permitted the weeds, grass, and stubble, to remain upon his own land immediately adjoining the railway of the defendant. They were dry and combustible, the same as the weeds and grass upon the right of way, though less in quantity, because within the right of way no mowing had ever been done, and the growth was more luxuriant and heavy. The plaintiff had not cut and removed the grass and weeds from his own land, nor ploughed in or removed the stubble, so as to prevent the spread of fire in case the same should be communicated to the dry grass and weeds upon the railroad, from the engines operated by the defendant. The grass, weeds, and stubble, upon the plaintiff’s land, together with the wind, which was blowing pretty strongly in that direction, served to carry the fire to the stacks, buildings, and other property of the plaintiff, which were destroyed by it, and which were situated some distance from the railroad. The fire originated within the line of the railroad, and near the track, upon the land of the defendant. It was communicated to the dry grass and other combustible material there, by coals of fire dropped from an engine of the defendant passing over the road. The evidence tends very clearly to establish these facts, and under the instructions the jury must have so found. The plaintiff is a farmer, and, in the particulars here in controversy, conducted his farming operations the same as other farmers throughout the country. It is not the custom anywhere for farmers to remove the grass or weeds from their waste lands, or to plough in or remove their stubble, in order to prevent the spread of the fire originating from such causes.

Upon this question, as upon the others, the Court charged the jury that it was for them to say whether the plaintiff was guilty of negligence, and, if they found he was, that then he could not recover. On the other hand, the defendant asked an instruction to the effect that it was negligence per se for the plaintiff to leave the grass, weeds, and stubble upon his own land, exposed to the fire which might be communicated to them from the burning grass and weeds on the defendant’s right of way, and that for this reason there could be no recovery on the part of the plaintiff. The Court refused to give the instruction, and, I think, rightly. The charge upon this point, as well as upon the other, was quite as favorable to the defendant as the law will permit, and even more so than some of the authorities will justify. The authorities upon this point are, as I have said, somewhat in conflict. The two cases first above cited from Illinois hold that it is negligence on the part of the adjoining landowner not to remove the dry grass and combustible material from his own land under such circumstances, and that he cannot recover damages where the loss is by fire thus communicated. Those decisions were by a divided Court, by two only of the three judges composing it. They rest upon no satisfactory grounds, whilst the reasons found in the opinions of the dissenting judge are very strong to the contrary. Opposed to these are the unanimous decisions of the courts of New York, and of the English Court of Exchequer, upon the identical point. Cook v. Champlain Transportation Co., 1 Denio, 91; Vaughan v. Taff Vale Railway Co., 3 Hurl. and Nor. 743; Same v. Same, 5 id. 679. These decisions, though made many years before the Illinois cases arose, are not referred to in them. The last was the same case on appeal in the Exchequer Chamber, where, although the judgment was reversed, it was upon another point. This one was not questioned, but was affirmed, as will be seen from the opinions of the judges, particularly of Cockburn, C. J., and Willes, J. The reasoning of those cases is, in my judgment, unanswerable. I do not see that I can add anything to it. They show that the doctrine of contributory negligence is wholly inapplicable,—that no man is to be charged with negligence because he uses his own property or conducts his own affairs as other people do theirs, or because he does not change or abandon such use, and modify the management of his affairs, so as to accommodate himself to the negligent habits or gross misconduct of others, and in order that such others may escape the consequences of their own wrong, and continue in the practice of such negligence or misconduct. In other words, they show that no man is to be deprived of the free, ordinary, and proper use of his own property by reason of the negligent use which his neighbor may make of his. He is not his neighbor’s guardian or keeper, and not to answer for his neglect. The case put by the Court of New York, of the owner of a lot who builds upon it in close proximity to the shop of a smith, is an apt illustration. Or let us suppose that A. and B. are proprietors of adjoining lands. A. has a dwelling-house, barns, and other buildings upon his, and cultivates some portion of it. B. has a planing mill, or other similar manufacturing establishment upon his, near the line of A., operated by steam. B. is a careless man, habitually so, and suffers shavings and other inflammable material to accumulate about his mills and up to the line of A., and so near to the fire in the mill that the same is liable at any time to be ignited. A. knows this, and remonstrates with B., but B. persists. Upon A.’s land, immediately adjoining the premises of B., it is unavoidable, in the ordinary course of husbandry, or of A.’s use of the land, that there should be at certain seasons of the year, unless A. removes them, dry grass and stubble, which, when set fire to, will endanger his dwelling-house and other property of a combustible nature, especially with the wind blowing in a particular direction at the time. It may be a very considerable annual expense and trouble to A. to remove them. It may require considerable time and labor, a useless expenditure to him, diverting his attention from other affairs and duties. The constant watching to guard against the carelessness and negligence of B. is a great tax upon his time and patience. The question is: Does the law require this of him, lest, in some unguarded moment, the fire should break out, his property be destroyed, and he be remediless? If the law does so require, if it imposes on him the duty of guarding against B.’s negligence, and of seeing that no injury shall come from it, or, if it does come, that it shall be his fault and not B.’s, it is important to know upon what principle it is that the burden is thus shifted from B. to himself. I know of no such principle, and doubt whether any Court could be found deliberately to announce or affirm it. And yet such is the result of holding the doctrine of contributory negligence applicable to such a case. A. is compelled, all his lifetime, at much expense and trouble, to watch and guard against the negligence of B., and to prevent any injuries arising from it, and for what? Simply that B. may continue to indulge in such negligence at his pleasure. And he does so with impunity. The law affords no redress against him. If the property is destroyed, it is because of the combustible material on A.’s land, which carries the fire, and which is A.’s fault, and A. is the loser. No loss can ever possibly overtake him. A. is responsible for the negligence, but not he himself. He kindles the fire, and A. stands guard over it. He sets the dangerous element in motion, and uses and operates it for his own benefit and advantage, negligently as he pleases, whilst A., with sleepless vigilance, sees to it that no damage is done, or if there is, that he will be the sufferer. This is the reductio ad absurdum of applying the doctrine of contributory negligence in such a case. And it is absurd, I care not by what Court or where applied.

Now the case of a railroad company is like the case of an individual. Both stand on the same footing with respect to their rights and liabilities. Both are engaged in the pursuit of a lawful business, and are alike liable for damage or injury caused by their negligence in the prosecution of it. Fire is an agent of an exceedingly dangerous and unruly kind, and, though applied to a lawful purpose, the law requires the utmost care in the use of all reasonable and proper means to prevent damage to the property of third persons. This obligation of care, the want of which constitutes negligence according to the circumstances, is imposed upon the party who uses the fire, and not upon those persons whose property is exposed to danger by reason of the negligence of such party. Third persons are merely passive, and have the right to remain so, using and enjoying their own property as they will, so far as responsibility for the negligence of the party setting the unruly and destructive agent in motion is concerned. If he is negligent, and damage ensues, it is his fault and cannot be theirs, unless they contribute to it by some unlawful or improper act. But the use of their own property as best suits their own convenience and purposes, or as other people use theirs, is not unlawful or improper. It is perfectly lawful and proper, and no blame can attach to them. He cannot, by his negligence, deprive them of such use, or say to them, “Do this or that with your property, or I will destroy it by the negligent and improper use of my fire.” The fault, therefore, in both a legal and moral point of view, is with him, and it would be something strange should the law visit all the consequences of it upon them. The law does not do so, and it is an utter perversion of the maxim sic utere tuo, etc., thus to apply it to the persons whose property is so destroyed by the negligence of another. It is changing it from “So use your own as not to injure another’s property,” to “So use your own that another shall not injure your property,” by his carelessness and negligence. It would be a very great burden to lay upon all the farmers and proprietors of lands along our extensive lines of railway, were it to be held that they are bound to guard against the negligence of the companies in this way,—that the law imposes this duty upon them. Always burdensome and difficult, it would, in numerous instances, be attended with great expense and trouble. Changes would have to be made in the mode of use and occupation, and sometimes the use abandoned, or at least all profitable use. Houses and buildings would have to be removed, and valuable timber cut down and destroyed. These are, in general, very combustible, especially at particular seasons of the year. The presence of these along or near the line of the railroad would be negligence in the farmer or proprietor. In the event of their destruction by the negligence of the company, he would be remediless. He must remove them, therefore, for his own safety. His only security consists in that. He must remove everything combustible from his own land in order that the company may leave all things combustible on its land and exposed without fear of loss or danger to the company to being ignited at any moment by the fires from its own engines. If this duty is imposed upon the farmers and other proprietors of adjoining lands, why not require them to go at once to the railroad and remove the dry grass and other inflammable material there? There is the origin of the mischief, and there the place to provide securities against it. It is vastly easier, by a few slight measures and a little precaution, to prevent the conflagration in the first place than to stay its ravages when it has once begun, particularly if the wind be blowing at the time, as it generally is upon our open prairies. With comparatively little trouble and expense upon the road itself, a little labor bestowed for that purpose, the mischief might be remedied. And this is an additional reason why the burden ought not to be shifted from the company upon the proprietor of the adjoining land; although, if it were otherwise, it certainly would not change what ought to be the clear rule of law upon the subject.

And the following cases will be found in strict harmony with those above cited, and strongly to sustain the principles there laid down, and for which I contend: Martin v. Western Union Railroad Co., 23 Wis. 437; Piggott v. Eastern Counties R. R. Co., 54 E. C. L. 228; Smith v. London and Southwestern R. R. Co., Law Reports, 5 C. P. 98; Vaughan v. Menlove, 7 C. & P. 525 [32 E. C. L. 613]; Hewey v. Nourse, 54 Me. 256; Turberville v. Stampe, 1 Ld. Raym. 264; S. C. 1 Salk. 13; Pantam v. Isham, id. 19; Field v. N. Y. C. R. R., 32 N. Y. 339; Bachelder v. Heagan, 18 Maine, 32; Barnard v. Poor, 21 Pick. 378; Fero v. Buffalo and State Line R. R. Co., 22 N. Y. 209; Fremantle v. The London and Northwestern R. R. Co., 100 E. C. L. 88; Hart v. Western Railroad Co., 13 Met. 99; Ingersoll v. Stockbridge & Pittsfield R. R. Co., 8 Allen, 438; Perley v. Eastern Railroad Co., 98 Mass. 414; Hooksett v. Concord Railroad, 38 N. H. 242; McCready v. Railroad Co., 2 Strobh. Law R. 356; Cleveland v. Grand Trunk Railway Co., 42 Vt. 449; 1 Bl. Comm. 131; Com. Dig. Action for Negligence (A. 6).

It is true that some of these cases arose under statutes creating a liability on the part of railroad companies, but that does not affect the principle. Negligence in the plaintiff, contributing to the loss, is a defence to an action under the statutes, the same as to an action at common law. 8 Allen, 440; 6 id. 87.

Cole, J., concurred.

Paine, J., delivered a dissenting opinion.

Judgment affirmed.

Defendants moved for a rehearing.

Dixon, C. J. (Sept. 21, 1871.)...

The learned counsel ... argue that, if logically carried out, the doctrine would utterly abrogate the rule that a party cannot recover damages where, by the exercise of ordinary care, he could have avoided the injury; and so, in the present case, after discovering the fire, the plaintiff might have leaned on his plough-handles and watched its progress, without effort to stay it, where such effort would have been effectual, and yet have been free from culpable negligence. The distinction is between a known, present, or immediate danger, arising from the negligence of another,—that which is imminent and certain, unless the party does or omits to do some act by which it may be avoided,—and a danger arising in like manner, but which is remote and possible or probable only, or contingent and uncertain, depending on the course of future events, such as the future conduct of the negligent party, and other as yet unknown and fortuitous circumstances. The difference is that between realization and anticipation. A man in his senses, in face of what has been aptly termed a “seen danger” (Shearman and Redfield, § 34, note 1), that is, one which presently threatens and is known to him, is bound to realize it, and to use all proper care and make all reasonable efforts to avoid it, and if he does not, it is his own fault; and he having thus contributed to his own loss or injury, no damage can be recovered from the other party, however negligent the latter may have been. But, in case of a danger of the other kind, one which is not “seen,” but exists in anticipation merely, and where the injury may or may not accrue, but is probable or possible only from the continued culpable negligence of another, there the law imposes no such duty upon the person who is or may be so exposed, and he is not obliged to change his conduct or the mode of transacting his affairs, which are otherwise prudent and proper, in order to avoid such anticipated injuries or prevent the mischiefs which may happen through another’s default and culpable want of care.

Rehearing denied.

THE BERNINA In the Court of Appeal, January 24, 1887. Reported in Law Reports, 12 Probate Division, 58.

Appeal from a judgment of Butt, J. (in the Probate, Divorce, and Admiralty Division, reported in 11 Prob. Div. 31), on a special case stated for the opinion of the Court, in three actions brought in personam against the owners of the steamer Bernina.

Butt, J., held, on the authority of Thorogood v. Bryan, 8 C. B. 115, that the plaintiffs were unable to recover against the defendants, and dismissed the actions.

The plaintiffs appealed.

Lindley, L. J. This was a special case. Three actions are brought in the Admiralty Division of the High Court by the respective legal personal representatives of three persons on board the Bushire against the owners of the Bernina. Those persons were killed by a collision between the two vessels, both of which were negligently navigated. One of the three persons (Toeg) was a passenger on the Bushire; one (Armstrong) was an engineer of the ship, though not to blame for the collision. The third (Owen) was her second officer, and was in charge of her, and was himself to blame for the collision. The questions for decision are, whether any, and if any, which of these actions can be maintained? and if any of them can, then whether the claims recoverable are to be awarded according to the principles which prevail at common law, or according to those which are adopted in the Court of Admiralty in cases of collision.

[The learned judge then decides that although actions under Lord Campbell’s Act for causing death can now be brought in the Admiralty Division, yet the assessment of damages is to be governed by the rules prevailing in common-law actions.]

Having cleared the ground thus far, it is necessary to return to the statute and see under what circumstances an action upon it can be supported. The first matter to be considered is whether there has been any such wrongful act, neglect, or default of the defendants as would, if death had not ensued, have entitled the three deceased persons respectively to have sued the defendants. Now, as regards one of them, namely, Owen, the second officer, who was himself to blame for the collision, it is clear that, if death had not ensued, he could not have maintained an action against the defendants. There was negligence on his part contributing to the collision, and no evidence to show that, notwithstanding his negligence, the defendants could, by taking reasonable care, have avoided the collision. There was what is called such contributory negligence on his part as to render an action by him unsustainable. It follows, therefore, that his representatives can recover nothing under Lord Campbell’s Act for his widow and children, and their action cannot be maintained. The other two actions are not so easily disposed of. They raise two questions: (1) Whether the passenger Toeg, if alive, could have successfully sued the defendants; and if he could, then (2) whether there is any difference between the case of the passenger and that of the engineer Armstrong. The learned judge whose decision is under review felt himself bound by authority to decide both actions against the plaintiffs. The authorities which the learned judge followed are Thorogood v. Bryan, 8 C. B. 115, and Armstrong v. Lancashire & Yorkshire Ry. Co., Law Rep. 10 Ex. 47; and the real question to be determined is whether they can be properly overruled or not. Thorogood v. Bryan, supra, was decided in 1849, and has been generally followed at Nisi Prius ever since when cases like it have arisen. But it is curious to see how reluctant the Courts have been to affirm its principle after argument, and how they have avoided doing so, preferring, where possible, to decide cases before them on other grounds. See, for example, Rigby v. Hewitt, 5 Ex. 240; Greenland v. Chaplin, 5 Ex. 243; Waite v. North Eastern Ry. Co., E. B. & E. 719. I am not aware that the principle on which Thorogood v. Bryan, supra, was decided has ever been approved by any Court which has had to consider it. On the other hand, that case has been criticised and said to be contrary to principle by persons of the highest eminence, not only in this country, but also in Scotland and in America. And while it is true that Thorogood v. Bryan, supra, has never been overruled, it is also true that it has never been affirmed by any Court which could properly overrule it, and it cannot be yet said to have become indisputably settled law. I do not think, therefore, that it is too late for a Court of Appeal to reconsider it, or to overrule it if clearly contrary to well settled legal principles.

Thorogood v. Bryan, supra, was an action founded on Lord Campbell’s Act. The facts were shortly as follows. The deceased was a passenger in an omnibus, and he had just got off out of it. He was knocked down and killed by another omnibus belonging to the defendants. There was negligence on the part of the drivers of both omnibuses, and it appears that there was also negligence on the part of the deceased himself. The jury found a verdict for the defendants, and there does not seem to have been any reason why the Court should have disallowed the verdict if not driven to do so on technical grounds. In those days, however, a misdirection by the judge to the jury compelled the Court to grant a new trial, whether any injustice had been done or not; and accordingly the plaintiff moved for a new trial on the ground of misdirection, and it is with reference to this point that the decision of the Court is of importance. The learned judge who tried the case told the jury in effect to find for the defendant if they thought that the deceased was killed either by reason of his own want of care or by reason of want of care on the part of the driver of the omnibus out of which he was getting. The last direction was complained of, but was upheld by the Court. The ratio decidendi was that if the death of the deceased was not occasioned by his own negligence it was occasioned by the joint negligence of both drivers, and that, if so, the negligence of the driver of the omnibus off which the deceased was getting was the negligence of the deceased; and the reason for so holding was that the deceased had voluntarily placed himself under the care of the driver. Maule, J., puts it thus: “The deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and the negligence of the driver was the negligence of the deceased.” This theory of identification was quite new. No trace of it is to be found in any earlier decision, nor in any legal treatise, English or foreign, so far as I have been able to ascertain, nor has it ever been satisfactorily explained. It must be assumed, for the purpose of considering the grounds of the decision in question, that the passenger was not himself in fault. Assuming this to be so, then, if both drivers were negligent, and both caused the injury to the passenger, it is difficult to understand why both drivers or their masters should not be liable to him. The doctrine of identification laid down in Thorogood v. Bryan, supra, is, to me, quite unintelligible. It is, in truth, a fictitious extension of the principles of agency, but to say that the driver of a public conveyance is the agent of the passengers is to say that which is not true in fact. Such a doctrine, if made the basis of further reasoning, leads to results which are wholly untenable, e. g., to the result that the passengers would be liable for the negligence of the person driving them, which is obviously absurd, but which, of course, the Court never meant. All the Court meant to say was that for purposes of suing for negligence the passenger was in no better position than the man driving him. But why not? The driver of a public vehicle is not selected by the passenger otherwise than by being hailed by him as one of the public to take him up; and such selection, if selection it can be called, does not create the relation of principal and agent or master and servant between the passenger and the driver, the passenger knows nothing of the driver and has no control over him; nor is the driver in any proper sense employed by the passenger. The driver, if not his own master, is hired, paid, or employed by the owner of the vehicle he drives or by some other person who lets the vehicle to him. The orders he obeys are his employer’s orders. These orders, in the case of an omnibus, are to drive from such a place to such a place and take up and put down passengers; and in the case of a cab the orders are to drive where the passenger for the time being may desire to go, within the limits expressly or impliedly set by the employer. If the passenger actively interferes with the driver by giving him orders as to what he is to do, I can understand the meaning of the expression that the passenger identifies himself with the driver, but no such interference was suggested in Thorogood v. Bryan, supra. The principles of the law of negligence, and in particular of what is called contributory negligence, have been discussed on many occasions since that case was decided, and are much better understood now than they were thirty years ago. Tuff v. Warman, 5 C. B. (N. S.) 573, in the Exchequer Chamber, and Radley v. London & North Western Ry. Co., 1 App. Cas. 754, in the House of Lords, show the true grounds on which a person himself guilty of negligence is unable to maintain an action against another for an injury occasioned by the combined negligence of both. If the proximate cause of the injury is the negligence of the plaintiff as well as that of the defendant, the plaintiff cannot recover anything. The reason for this is not easily discoverable. But I take it to be settled that an action at common law by A. against B. for injury directly caused to A. by the want of care of A. and B. will not lie. As Pollock, C. B., pointed out in Greenland v. Chaplin, supra, the jury cannot take the consequences and divide them in proportion according to the negligence of the one or the other party. But if the plaintiff can show that although he has himself been negligent, the real and proximate cause of the injury sustained by him was the negligence of the defendant, the plaintiff can maintain an action, as is shown not only by Tuff v. Warman, supra, and Radley v. London & North Western Ry. Co., supra, but also by the well-known case of Davies v. Mann, 10 M. & W. 546, and other cases of that class. The cases which give rise to actions for negligence are primarily reducible to three classes, as follows:—

1. A. without fault of his own is injured by the negligence of B., then B. is liable to A. 2. A. by his own fault is injured by B. without fault on his part, then B. is not liable to A. 3. A. is injured by B. by the fault more or less of both combined; then the following further distinctions have to be made: (a) if, notwithstanding B.’s negligence, A. with reasonable care could have avoided the injury, he cannot sue B.: Butterfield v. Forrester, 11 East, 60; Bridge v. Grand Junction Ry. Co., 3 M. & W. 244; Dowell v. General Steam Navigation Co., 5 E. & B. 195; (b) if, notwithstanding A.’s negligence, B. with reasonable care could have avoided injuring A., A. can sue B.: Tuff v. Warman, supra; Radley v. London & North Western Ry. Co., supra; Davies v. Mann, supra; (c) if there has been as much want of reasonable care on A.’s part as on B.’s or, in other words, if the proximate cause of the injury is the want of reasonable care on both sides, A. cannot sue B. In such a case A. cannot with truth say that he has been injured by B.’s negligence, he can only with truth say that he has been injured by his own carelessness and B.’s negligence, and the two combined give no cause of action at common law. This follows from the two sets of decisions already referred to. But why in such a case the damages should not be apportioned, I do not profess to understand. However, as already stated, the law on this point is settled, and not open to judicial discussion. If now another person is introduced the same principles will be found applicable. Substitute in the foregoing cases B. and C. for B., and unless C. is A.’s agent or servant there will be no difference in the result, except that A. will have two persons instead of one liable to him. A. may sue B. and C. in one action, and recover damages against them both; or he may sue them separately and recover the whole damage sustained against the one he sues: Clark v. Chambers, 3 Q. B. D. 327, where all the previous authorities were carefully examined by the late L. C. J. Cockburn. This is no doubt hard on the defendant, who is alone sued, and this hardship seems to have influenced the Court in deciding Thorogood v. Bryan, supra. In that case the Court appears to have thought it hard on the defendant to make him pay all the damages due to the plaintiff, and that it was no hardship to the plaintiff to exonerate the defendant from liability, as the plaintiff had a clear remedy against the master of the omnibus in which he was a passenger. But it is difficult to see the justice of exonerating the defendant from all liability in respect of his own wrong and of throwing the whole liability on some one who was no more to blame than he. The injustice to the defendant, which the Court sought to avoid, is common to all cases in which a wrong is done by two people and one of them alone is made to pay for it. The rule which does not allow of contribution among wrong-doers is what produces hardship in these cases, but the hardship produced by that rule (if really applicable to such cases as these under discussion) does not justify the Court in exonerating one of the wrong-doers from all responsibility for his own misconduct or the misconduct of his servants. I can hardly believe that if the plaintiff in Thorogood v. Bryan, supra, had sued the proprietors of both omnibuses it would have been held that he had no right of action against one of them. Having given my reasons for my inability to concur in the doctrine laid down in Thorogood v. Bryan, supra, I proceed to consider how far that doctrine is supported by other authorities. [After commenting on various authorities]; Thorogood v. Bryan, supra, and Armstrong v. Lancashire & Yorkshire Ry. Co., supra, affirm that, although if A. is injured by the combined negligence of B. and C., A. can sue B. and C., or either of them, he cannot sue C. if he, A., is under the care of B. or in his employ. From this general doctrine I am compelled most respectfully to dissent, but if B. is A.’s agent or servant the doctrine is good. In Scotland the decision in Thorogood v. Bryan, supra, was discussed and held to be unsatisfactory in the case of Adams v. Glasgow & South Western Ry. Co., 3 Court Sess. Cas. 215. In America the subject was recently examined with great care by the Supreme Court of the United States in Little v. Hackett, 14 Am. Law Record, 577, 54 Am. Rep. 15, in which the English and American cases were reviewed, and the doctrine laid down in Thorogood v. Bryan, supra, was distinctly repudiated as contrary to sound principles. In this case the plaintiff was driving in a hackney carriage and was injured by a collision between it and a railway train on a level crossing. There was negligence on the part of the driver of the carriage and on the part of the railway company’s servants, but it was held that the plaintiff was not precluded from maintaining an action against the railway company. In this country Thorogood v. Bryan, supra, was distinctly disapproved by Dr. Lushington in The Milan, Lush. 388; and even Lord Bramwell, who has gone further than any other judge in upholding the decision, has expressed disapproval of the grounds on which it was based. No text-writer has approved of it, and the comments in Smith’s Leading Cases are adverse to it (vol. i. p. 266, 6th ed.). For the reasons above stated, I am of opinion that the doctrines laid down in Thorogood v. Bryan, supra, and Armstrong v. Lancashire & Yorkshire Ry. Co., supra, are contrary to sound legal principles, and ought not to be regarded as law. Consequently, I am of opinion that the decision in Toeg’s and Armstrong’s case ought to be reversed.

Concurring opinions were delivered by Lord Esher, M. R., and Lopes, L. J., the former elaborately reviewing the authorities.

Extract from opinion of Lopes, L. J.:—

If, again, the passenger is to be considered in the same position as the driver or owner, and their negligence is to be imputed to him, he would be liable to third parties; for instance, in case of a collision between two omnibuses, where the driver of one was entirely in fault, every passenger in the omnibus free from blame would have an action against every passenger in the other omnibus, because every such passenger would be identified with the driver, and is responsible for his negligence. Nor, again, in the case just put, could any passenger in the other omnibus bring an action against the owner of the omnibus in which he was carried, because the negligence of the driver is to be imputed to the passenger. If the negligence of the driver is to be attributed to the passenger for one purpose, it would be impossible to say he is not to be affected by it for others. Other cases might be put.

The more the decision in Thorogood v. Bryan, supra, is examined, the more anomalous and indefensible that decision appears.

The theory of the identification of the passengers with the negligent driver or owner is, in my opinion, a fallacy and a fiction, contrary to sound law and opposed to every principle of justice. A passenger in an omnibus whose injury is caused by the joint negligence of that omnibus and another, may, in my opinion, maintain an action, either against the owner of the omnibus in which he was carried or the other omnibus, or both. I am clearly of opinion Thorogood v. Bryan, supra, should be overruled.

Extract from opinion of Lord Esher, M. R.:—

In Armstrong’s action a point is suggested that he ought not to recover against the defendants, the owners of the Bernina, because he could not recover against the owners of the Bushire. He would, it is rightly said, in an action against the latter, be met by the doctrine of the accident being occasioned by the negligence of a fellow-servant. The suggestion would go too far. It would apply where passengers or goods are carried by railway, or in ship, under a notice limiting the liability of that railway company or shipowner. It would work manifest injustice by enabling a person to take advantage of a contract to which he was a stranger, and for the advantage of which he had given no consideration. The rule of law is, that a person injured by more than one wrong-doer may maintain an action for the whole damage done to him against any of them. There is no condition that he cannot do so unless he might, if he pleased, maintain an action against each of them. There is no disadvantage to the one sued, because there is no contribution between joint wrong-doers. The plaintiff Armstrong is therefore entitled to judgment for the whole of the damages he may be able to prove, according to the rule of damages laid down in Lord Campbell’s Act. So in the case of the plaintiff Toeg. In the case of Owen, the deceased was personally negligent, so as that his negligence was partly directly a cause of the injury. He could not have recovered, neither can his administratrix.

Appeal allowed.

Affirmed in the House of Lords under the name of Mills v. Armstrong; L. R. 13 App. Cases, 1.

SHULTZ v. OLD COLONY STREET RAILWAY COMPANY Supreme Judicial Court, Massachusetts, January 1, 1907. Reported in 193 Massachusetts Reports, 309.

Tort for personal injuries caused by the collision of an electric car of defendant with a carriage in which the plaintiff was being driven.

At the trial the evidence for plaintiff tended to show that plaintiff was being driven in a carriage by her friend B; that B owned the horse and carriage and was giving her a ride to her home; that plaintiff in no way interfered with B’s driving, in no manner controlled him or directed how he should drive, but left the driving to him; and that the defendant’s car from behind, without any warning, ran into the hind wheels of the carriage.

Defendant’s evidence tended to show that the collision was due to B’s negligently turning suddenly across the track.

The judge instructed the jury (inter alia) that if B was careless in driving and if his carelessness contributed to the injury, then plaintiff was bound by his carelessness and could not recover. To this instruction plaintiff excepted.

Verdict for defendant.

Rugg, J. This case fairly raises the question as to whether the negligence of the driver of a vehicle is to be imputed to a guest, riding with him gratuitously, and personally in the exercise of all the care which ordinary caution requires.

[The learned judge then elaborately reviewed the authorities; and, both upon authority and principle, sustained the view reached in The Bernina, ante. He then continued:]

The rule fairly deducible from our own cases, and supported by the great weight of authority by courts of other jurisdictions, is that where an adult person, possessing all his faculties and personally in the exercise of that degree of care, which common prudence requires under all the attending circumstances, is injured through the negligence of some third person and the concurring negligence of one with whom the plaintiff is riding as guest or companion, between whom and the plaintiff the relation of master and servant or principal and agent, or mutual responsibility in a common enterprise, does not in fact exist, the plaintiff being at the time in no position to exercise authority or control over the driver, then the negligence of the driver is not imputable to the injured person, but the latter is entitled to recover against the one through whose wrong his injuries were sustained. Disregarding the passenger’s own due care, the test whether the negligence of the driver is to be imputed to the one riding depends upon the latter’s control or right of control of the actions of the driver, so as to constitute in fact the relation of principal and agent or master and servant, or his voluntary, unconstrained, non-contractual surrender of all care for himself to the caution of the driver.

Applying this statement of the law to the present case, the result is that the plaintiff would not be entitled to recover if in the exercise of common prudence she ought to have given some warning to the driver of carelessness on his part, which she observed or might have observed in exercising due care for her own safety, nor if she negligently abandoned the exercise of her own faculties and trusted entirely to the vigilance and care of the driver. She cannot hide behind the fact that another is driving the vehicle in which she is riding, and thus relieve herself of her own negligence. What degree of care she should have exercised, in accepting the invitation to ride, or in observing and calling to the attention of the driver perils unnoticed by him, depends upon the circumstances at the time of the injury. On the other hand, she would be permitted to recover if, in entering and continuing in the conveyance, she acted with reasonable caution, and had no ground to suspect incompetency and no cause to anticipate negligence on the part of the driver, and if the impending danger, although in part produced by the driver, was so sudden or of such a character as not to permit or require her to do any act for her own protection.

In view of the facts of the case the requests for rulings presented by the plaintiff were not correct propositions of law and were properly refused, but the portion of the charge excepted to failed to express with accuracy and fulness the rights of the plaintiff and the liability of the defendant to her. The jury were instructed to treat the plaintiff as identified with the driver, and burdened with his negligence. For the reasons we have stated and under the circumstances disclosed, this was not an accurate statement of the law.

Exceptions sustained.

KOPLITZ v. CITY OF ST. PAUL Supreme Court, Minnesota, June 6, 1902. Reported in 86 Minnesota Reports, 373.

Action in the District Court for Ramsey County to recover $2040 for personal injuries caused by a defective street in defendant city. The case was tried before Brill, J., and a jury, which rendered a general verdict in favor of plaintiff for $300. The jury also returned a special verdict, in answer to the specific question submitted by the court, that the driver of the vehicle from which plaintiff was thrown was guilty of negligence which contributed to the injury. From a judgment entered pursuant to the general verdict, defendant appealed.

Start, C. J. The plaintiff was one of a party of twenty-six young people who celebrated the Fourth of July last by a picnic at Lake Johanna, about twelve miles from St. Paul. The picnic was a mutual affair, in that the party consisted of about an equal number of young men and young women, each lady being invited and escorted by a gentleman, for whom and herself she furnished lunch; but at meal time the several lunches were merged, and became a common spread. The ladies had nothing to do with the matter of the transportation of the party to and from the lake. This was the exclusive business of the gentlemen, with which the ladies had no more to do than the young men had with the lunches. The gentlemen selected one of their number (Mr. Gibbons) to manage the transportation of the party. He hired for this purpose a long covered omnibus, drawn by four horses, and a driver and assistant, to drive the party to the lake and return. The party were driven to and from the lake in this conveyance, with the hiring of which, or the payment therefor, or the control thereof, the ladies, including the plaintiff, had nothing to do, other than may be inferred, if at all, from the fact that they were members of the picnic party. On the return trip, when the conveyance had reached Dale Street, in the city of St. Paul, it was tipped over, by reason of an embankment therein, whereby the plaintiff was injured.

At the time of the accident all of the party were riding inside of the omnibus, except Mr. Gibbons, who was outside, on the driver’s seat, with the driver and his assistant, and was then driving the horses; but this fact was unknown to the plaintiff or any of the party inside of the conveyance. The negligence of the city in the care of the street was the proximate cause of the plaintiff’s injury, but the negligence of Mr. Gibbons in driving the horses contributed thereto. The plaintiff was personally free from any negligence in the premises. This action was brought by the plaintiff to recover damages on account of such injuries, and the jury returned a verdict for $300, and a special verdict that Mr. Gibbons was guilty of contributory negligence in driving the conveyance. Thereupon the defendant moved for judgment in its favor upon the special verdict, notwithstanding the general verdict for the plaintiff. The motion was denied, and judgment entered for the plaintiff, from which the defendant appealed to this court.

The only question for our decision is whether the negligence of Mr. Gibbons must be imputed to the plaintiff, and a recovery denied her for that reason. The rule as to imputed negligence, as settled by this court in cases other than those where the parties stand in the relation of parent and child or guardian and ward, is that negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct, nor participated therein, nor had the right or power to control it. If, however, two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, expressed or implied, to act for all in respect to the control of the means or agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to all the others. Follman v. City of Mankato, 35 Minn. 522, 29 N. W. 317; Flaherty v. Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160; Howe v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 62 Minn. 71, 64 N. W. 102; Johnson v. St. Paul City Ry. Co., 67 Minn. 260, 69 N. W. 900; Finley v. Chicago, M. & St. P. Ry. Co., 71 Minn., 471, 74 N. W. 174; Wosika v. St. Paul City Ry. Co., 80 Minn. 364, 83 N. W. 386; Lammers v. Great Northern Ry. Co., 82 Minn. 120, 84 N. W. 728.

It is too obvious to justify discussion that the plaintiff in this case neither expressly nor impliedly had any control over the drivers of the omnibus, or either of them, or of Mr. Gibbons, and that he and she were not engaged in a joint enterprise in any such sense as made her so far responsible for his negligence in driving the horses that it must be imputed to her. The claim of the defendant to the contrary is unsupported by the facts as disclosed by the record.

Judgment affirmed.

FECHLEY v. SPRINGFIELD TRACTION COMPANY St. Louis Court of Appeals, Missouri, May 8, 1906. Reported in 119 Missouri Appeal Reports, 358.

Error to Circuit Court, Greene County. Verdict and judgment for defendant. Plaintiff appeals.

Appellant, Fechley, was damaged by the collision of a street car with a one-horse buggy in which he was riding. The buggy was owned and driven by Pierce, at whose invitation Fechley was riding. Pierce, upon his own statement, was negligent in not seasonably looking, or taking proper precautions, to ascertain if a car was approaching before he attempted to drive across two parallel railway tracks. The facts as to the alleged negligence of Fechley are sufficiently stated in the extracts from the opinion, given below.

One error assigned was the submission to the jury of the issue of appellant’s contributory negligence.

Goode, J. [After stating the case; and holding that the negligence of Pierce would not bar Fechley from recovering against the company if the motorman’s negligence was in part the proximate cause of the collision.]

Appellant himself must have been free from negligence proximately contributing to his injury or he is entitled to no damages, granting that Pierce’s fault does not preclude a recovery and that the motorman’s fault was a factor in bringing about the casualty. Few, if any, courts have held that an occupant of a vehicle may entrust his safety absolutely to the driver of a vehicle, regardless of the imminence of danger or the visible lack of ordinary caution on the part of the driver to avoid harm. The law in this state, and in most jurisdictions, is that if a passenger who is aware of the danger and that the driver is remiss in guarding against it, takes no care himself to avoid injury, he cannot recover for one he receives. This is the law not because the driver’s negligence is imputable to the passenger, but because the latter’s own negligence proximately contributed to his damage. Marsh v. Railroad, 104 Mo. App. 577, 78 S. W. 284; Dean v. Railroad, 129 Pa. St. 514; Township of Crescent v. Anderson, 114 Pa. St. 643; Koehler v. Railroad, 66 Hun, 566; Hoag v. Railroad, 111 N. Y. 179; Brickell v. Railroad, 120 N. Y. 290; 2 Thompson, Negligence, sec. 1620; Beach, Con. Neg., sec. 115; 3 Elliott, Railroads, sec. 1174.

[After discussing the pleadings.]

Therefore the question occurs whether, on the testimony for appellant, the court would have been justified in holding him guilty of contributory negligence; and we hold that such a ruling would have been proper. Appellant swore he knew cars were operated east and west on Commercial Street, but did not know there were double tracks on it. The two tracks were right before his eyes as he drove down Commercial Street and as Pierce turned the horse to cross them. He said he could have looked out of the buggy by merely pushing the curtain back with his hand. He was not bound to do this if Pierce’s conduct was of such a character as to induce a reasonably prudent man to think there was no danger in driving across the tracks. But Fechley did not have the right to rely on the precaution taken by Pierce, unless, under the circumstances, a man of ordinary prudence would have relied on it. As we have pointed out, the testimony shows Pierce took no precaution which could be effective. He did not stop at all; nor did he look for a car until the horse was stepping over the south rail of the north track. The two tracks were less than five feet apart and the buggy moved but a few feet after Pierce looked, before the car struck it near the front of the rear wheels. Meanwhile Fechley was leaning back in the buggy, though he must have seen they had crossed the south track and were advancing diagonally on the north one, and, if he was paying any attention to the situation, must have known that a car was likely to come along on that track from the east. Pierce’s behavior was so grossly careless, that Fechley was imprudent in doing nothing personally to insure his safety. The essential fact is that Pierce did not look in time, as Fechley knew, or, in reason, ought to have known. Therefore Fechley should have stopped Pierce or told him to look for a car, or have looked himself, before they had advanced so far into danger. It is palpable from appellant’s own testimony that he was giving no heed to his safety, but either was relying blindly on Pierce, or, for some reason, was not aware of the proximity of the tracks.

[After stating authorities.]

On the testimony for appellant the case strikes us as one of concurrent negligence; for the buggy had not gone more than from six to twelve feet after Pierce looked for a car, until the collision occurred. There is an inconsistency in appellant’s theory. He would have it that there was an appearance of danger of a collision which should have warned the motorman, as soon as the buggy was turned to go over the tracks and before Pierce looked for a car, but that appellant himself was not negligent in failing to guard against this apparent danger. That argument for appellant emphasizes and makes clear his own carelessness. The counsel in the case give several close calculations in support of their respective theories, and appellant’s attorneys endeavor to demonstrate that the motorman could have stopped the car before it reached the buggy, if he had begun to get control of it when the horse turned to go over the south track. They insist that appellant, though he may have been guilty of contributory negligence, was entitled to a finding by the jury, under proper instructions, on the issue of whether or not the motorman could have prevented the accident after the turn, it being assumed that the danger of a collision then became apparent. The court submitted that issue by a charge which was extremely favorable to appellant.

[Omitting remainder of opinion.]

Judgment affirmed.

NEWMAN v. PHILLIPSBURG HORSE CAR COMPANY Supreme Court, New Jersey, July Term, 1890. Reported in 52 New Jersey Law Reports, 446.

The plaintiff was a child two years of age; she was in the custody of her sister, who was twenty-two; the former, being left by herself for a few minutes, got upon the railroad track of the defendant, and was hurt by the car. The occurrence took place in a public street of the village of Phillipsburg. The carelessness of the defendant was manifest, as at the time of the accident there was no one in charge of the horse drawing the car, the driver being in the car collecting fares.

The Circuit judge submitted the three following propositions to this Court for its advisory opinion, viz.:—

First. Whether the negligence of the persons in charge of the plaintiff, an infant minor, should be imputed to the said plaintiff.

Second. Whether the conduct of the persons in charge of the plaintiff at the time of the injury complained of, was not so demonstrably negligent that the said Circuit Court should have nonsuited the plaintiff, or that the Court should have directed the jury to find for the defendant.

Third. Whether a new trial ought not to be granted, on the ground that the damages awarded are excessive.

Argued at February term, 1890, before Beasley, C. J., and Scudder, Dixon and Reed, JJ.

The opinion of the court was delivered by—

Beasley, C. J. There is but a single question presented by this case, and that question plainly stands among the vexed questions of the law.

The problem is, whether an infant of tender years can be vicariously negligent, so as to deprive itself of a remedy that it would otherwise be entitled to. In some of the American states this question has been answered by the Courts in the affirmative, and in others in the negative. To the former of these classes belongs the decision in Hartfield v. Roper & Newell, reported in 21 Wend. 615. This case appears to have been one of first impression on this subject, and it is to be regarded, not only as the precursor, but as the parent of all the cases of the same strain that have since appeared.

The inquiry with respect to the effect of the negligence of the custodian of the infant, too young to be intelligent of situations and circumstances, was directly presented for decision in the primary case thus referred to, for the facts were these: The plaintiff, a child of about two years of age, was standing or sitting in the snow in a public road, and in that situation was run over by a sleigh driven by the defendants. The opinion of the Court was, that as the child was permitted by its custodian to wander into a position of such danger it was without remedy for the hurts thus received, unless they were voluntarily inflicted, or were the product of gross carelessness on the part of the defendants. It is obvious that the judicial theory was, that the infant was, through the medium of its custodian, the doer, in part, of its own misfortune, and that, consequently, by force of the well-known rule, under such conditions, he had no right to an action. This, of course, was visiting the child for the neglect of the custodian, and such infliction is justified in the case cited in this wise: “The infant,” says the Court, “is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; in respect to third persons his act must be deemed that of the infant; his neglects the infant’s neglects.”

It will be observed that the entire content of this quotation is the statement of a single fact, and a deduction from it; the premise being, that the child must be in the care and charge of an adult, and the inference being that, for that reason, the neglects of the adult are the neglects of the infant. But surely this is, conspicuously, a non sequitur. How does the custody of the infant justify, or lead to, the imputation of another’s fault to him? The law, natural and civil, puts the infant under the care of the adult, but how can this right to care for and protect be construed into a right to waive, or forfeit, any of the legal rights of the infant? The capacity to make such waiver or forfeiture is not a necessary, or even convenient, incident of this office of the adult, but, on the contrary, is quite inconsistent with it, for the power to protect is the opposite of the power to harm, either by act or omission. In this case in Wendell it is evident that the rule of law enunciated by it is founded in the theory that the custodian of the infant is the agent of the infant; but this is a mere assumption without legal basis, for such custodian is the agent, not of the infant, but of the law. If such supposed agency existed, it would embrace many interests of the infant, and could not be confined to the single instance where an injury is inflicted by the coöperative tort of the guardian. And yet it seems certain that such custodian cannot surrender or impair a single right of any kind that is vested in the child, nor impose any legal burthen upon it. If a mother travelling with her child in her arms should agree with a railway company, that in case of an accident to such infant by reason of the joint negligence of herself and the company the latter should not be liable to a suit by the child, such an engagement would be plainly invalid on two grounds: first, the contract would be contra bonos mores, and second, because the mother was not the agent of the child authorized to enter into the agreement. Nevertheless, the position has been deemed defensible that the same evil consequences to the infant will follow from the negligence of the mother, in the absence of such supposed contract, as would have resulted if such contract should have been made and should have been held valid.