Part 1 — CHAPTER II NEGLIGENT INTERFERENCE (continued 8)

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.^[187]

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.^[188]

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

2742. 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 275the 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,^[189] 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 276fore-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^[190]; 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 277lawfully 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.^[191]

278 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.^[192] ... 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 279case, 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^[193] 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, 280when 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.^[194]

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 281recovery, 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 282from 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.^[195]

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.^[196]

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.

283Read, 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 284the 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.^[197] 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.”^[198] 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.

285A rule having been obtained for a new trial, it was after argument before Barons Bramwell and Amphlett made absolute.^[199] On appeal to the Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush, Brett, and Archibald (diss. Justice Denman), reversed.^[200] This appeal was then brought.^[201]

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.^[202]

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 286fact, 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. 287The 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.^[203]

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.

288 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 289other 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 290looks 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 291his 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.

292The 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 293be 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, 294&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.

295The 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.^[204]

Carpenter, J., in NIEBOER v. DETROIT ELECTRIC RAILWAY (1901) 128 Michigan, 486, 491, 492.^[205]

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 296negligence, 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.”^[206]

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 297both 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.^[207]

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 298had 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 299there, 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, 300wantonly, 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.^[208]

301 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 302them. 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 303by 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 304the 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.’”