Note 191 — Chapter II · NEGLIGENT INTERFERENCE (continued 8)

“The other instruction was in these words: ‘There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff’s negligence.’

“The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial.” Gray, J., in Inland Coasting Co. v. Tolson, 139 U. S. 551, 558.

“Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M. & W. 546) 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.” Lamar, J., in Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429.