Note 182 — Chapter II · NEGLIGENT INTERFERENCE (continued 7)

“The doctrine of comparative negligence no longer exists in this state.” Wilkin, J., in City v. Holcomb, 205 Ill. 643, 646.

“The intrinsic difficulty of the subject of contributory negligence has led to three distinct lines of decisions. In England and a majority of the States of the Union, the negligence of the plaintiff which contributes to the injury is held to be an absolute bar to the action. In the States of Illinois and Georgia the doctrine of comparative negligence has been adopted, that is, if on comparing the negligence of the plaintiff with that of the defendant, the former is found to be slight and the latter gross, the plaintiff may recover. In this State we hold that although the injured party may contribute to the injury by his own carelessness or wrongful conduct, yet if the act or negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the party injured being taken into consideration, by way of mitigation, in estimating the damages. In other words, if defendant was guilty of a wrong by which plaintiff is injured, and plaintiff was also in some degree negligent or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia Railroad Company v. Fain, 12 Lea, 35. At the same time we hold that if a party by his own gross negligence bring an injury upon himself, or proximately contribute to such injury, he cannot recover; neither can he recover in cases of mutual negligence where both parties are equally blamable. Id. The principal difference between our rule and the English rule, as modified by the more recent decisions, is in allowing the damages to be mitigated by the conduct of the injured party. In this respect our rule meets the objection which Mr. Thompson, in his notes on contributory negligence, makes to the construction put by some of the courts on the English rule, or to the application of the rule in particular cases. ‘It is,’ he says, ‘nothing more than a declaration that although both parties have been guilty of negligence contributing to the injury, the party who suffered the damage is to be completely exonerated, and the other party is not to be exonerated to any extent; the former is to recover of the latter without any abatement on account of his own share of the fault, all the damages which he has suffered.’ ‘This is,’ he adds, ‘manifest injustice; and yet it is practiced every day in the courts of England and in those of nearly every State in the Union.’ 2 Thompson on Neg. 1155. Our rule, moreover, is merely an adaptation of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of provocation is always admissible in evidence to mitigate the damages. Jackaway v. Dula, 7 Yer. 82; Chambers v. Porter, 5 Cold. 273, 280; Suth. on Dam. 745.” Cooper, J., in Louisville R. Co. v. Fleming, 14 Lea, (Tenn.) 128, 135. But see Southern R. Co. v. Pugh, 97 Tenn. 624.