Note 181 — Chapter II · NEGLIGENT INTERFERENCE (continued 7)

Remainder of opinion omitted.

Start, J., in LaFlam v. Missisquoi Pulp Company, 74 Vt. 125. 143: “The defendants, by their second request, asked for an instruction that if, by the exercise of ordinary care and prudence upon the part of the plaintiff, he would not have been injured, he cannot recover. The court instructed the jury, that, if the plaintiff’s want of ordinary care or his negligence contributed in any material degree to the happening of the accident, he is not entitled to recover, even though the defendants were negligent. This was in accordance with the rule as it has sometimes been stated by this court. In Magoon v. Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, and in Hill v. New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the negligence or carelessness of the person injured contributes in any material degree to the production of the injury complained of, he cannot recover; but in Reynolds v. Boston & Maine R. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908, the holding is that, if the negligence of the plaintiff contributes in the least degree to the accident, there can be no recovery. We think this is the correct rule, and that the instruction should have conformed to it. The use of the word ‘material’ left the jury at liberty to consider the degree of the plaintiff’s negligence, which is not considered permissible in jurisdictions where the doctrine of contributory negligence prevails. To allow jurors to consider so-called degrees of negligence would, in effect, nullify this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379.”

“Negligence contributing as an efficient cause of injury will defeat an action therefor, irrespective of the quantum of negligence of the respective parties.” Jaggard, J., in O’Brien v. St. Paul City R. Co., 98 Minn. 205, 207–208.

“An effect often has many proximate, and many remote, causes. If the negligence of the plaintiff was one of the proximate causes of the injury,—if it directly contributed to the unfortunate result,—he cannot recover, even though the negligence of the defendant also contributed to it.” Sanborn, J., in Missouri Pac. R. Co. v. Moseley, 57 Fed. 921, 925.

“While purporting to give a legal definition of contributory negligence, this instruction demands that such negligence shall be found the sole and direct cause of the accident—an interpretation at war with the term ‘contributory’ itself.” Reyburn, J., in Hanheide v. St. Louis Transit Co., 104 Mo. App. 323, 330.

“... if it appears that his [plaintiff’s] negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called ‘contributory negligence.’” Whittle, J., in Richmond Traction Co. v. Martin’s Adm’r, 102 Va. 209, 213.

“... there was a lack of ordinary care on his [the deceased’s] part, and where this occurs, contributing proximately to the injury, this lack will prevent a recovery, though the negligence of the other party may have much more contributed thereto.” Beard, C. J., in Memphis Gas & Electric Co. v. Simpson, (Tenn.) 109 S. W. 1155, 1158.

American Woolen Co. v. Stewart, (C. C. A.) 217 Fed. 1; Birmingham R. Co. v. Bynum, 139 Ala. 389; St. Louis R. Co. v. Musgrove, 113 Ark. 599; Denver R. Co. v. Maydole, 33 Col. 150; Robinson v. Huber, (Del.) 63 Atl. 873; O’Keefe v. Chicago R. Co., 32 Ia. 467; Pennsylvania R. Co. v. Roney, 89 Ind. 453; Atchison R. Co. v. Henry, 57 Kan. 154; Mann v. City, 154 Ky. 154; Marble v. Ross, 124 Mass. 44; Mynning v. Detroit R. Co., 59 Mich. 257; Hurt v. St. Louis R. Co., 94 Mo. 255; Village v. Holliday, 50 Neb. 229; Pennsylvania R. Co. v. Righter, 42 N. J. Law, 180; St. Louis R. Co. v. Elsing, 37 Okl. 333; Weaver v. Pennsylvania R. Co., 212 Pa. St. 632; Weir v. Haverford Electric Co., 221 Pa. St. 611; McLean v. Atlantic R. Co., 81 S. C. 100; McDonald v. International R. Co., 86 Tex. 1; Hazen v. Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. v. Lee, 84 Va. 642; Franklin v. Engel, 34 Wash. 480; Tesch v. Milwaukee R. Co., 108 Wis. 593 Accord.