Chapter XXI: Section VIII: Contributory Culpable Conduct of Plaintiff (1)

NEAL _v._ GILLETT
SUPREME COURT OF ERRORS, CONNECTICUT, JUNE TERM, 1855.
_Reported in 23 Connecticut Reports, 437._

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

SANFORD, J. [Omitting opinion on another point.][176] The question presented upon the second point, is, whether a plaintiff is entitled to recover for an injury, produced by the combined operation of his own want of “ordinary care,” and the gross negligence of the defendant. The exact boundaries between the several degrees of care and their correlative degrees of carelessness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by “ordinary care,” is meant “that degree of care which may reasonably be expected from a person in the party’s situation” (41 E. C. L. R. 425),[177] that is, “reasonable care” (19 Conn. R. 572); and that “gross negligence” imports not a malicious intention or design to produce a particular injury, but a thoughtless disregard of consequences; the absence, rather than the actual exercise, of volition with reference to results.

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

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

In the recent case of Park _v._ O’Brien, 23 Conn. R. 339, this Court said, “It is necessary for the plaintiff, to prove, first, negligence on the part of the defendant, and, secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, the plaintiff must show that such injury was not caused, wholly, or in part, by his own negligence;[178] for although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence.” “Hence, to say that the plaintiff must show the latter” [the want of the plaintiff’s concurring negligence], “is only saying that he must show that the injury was owing to the negligence of the defendant.”

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

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

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

_New trial to be granted._[179]

PAYNE _v._ CHICAGO & ALTON RAILROAD COMPANY
SUPREME COURT, MISSOURI, JUNE 25, 1895.
_Reported in 129 Missouri Reports, 405._

Action for personal injuries alleged to be caused by the negligence of defendant. Answer: a general denial, and a plea of contributory negligence.[180]

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

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

In the Circuit Court plaintiff had judgment. Defendant appealed.

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

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

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

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

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

As the evidence on the issue of contributory negligence was very clear, we think the errors in this instruction prejudicial and must cause a reversal.[181]

_Judgment reversed, and cause remanded._

BREESE, J., IN GALENA, &c. R. Co. _v._ JACOBS
(1858) _20 Illinois, 478, 496–497._

[After citing decisions in other jurisdictions.] It will be seen from these cases that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested by both parties; for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to entitle him to recover.... We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action.[182]

UNITED STATES COMPILED STATUTES, 1913, § 8659.

In all actions hereafter brought against any such common carrier[183] by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.[184] (Act of April 22, 1908, c. 149, § 3, 35 Stat. L. 66.)

ENGLAND, WORKMEN’S COMPENSATION ACT, 1906, § 1 (c.)

If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.[185]

THE MAX MORRIS
SUPREME COURT OF THE UNITED STATES, NOVEMBER 17, 1890.
_Reported in 137 United States Reports, 1._

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

This was a suit in Admiralty, brought in the District Court of the United States for the Southern District of New York, by Patrick Curry against the steamer Max Morris.[186]

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

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

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

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

MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the Court.

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

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

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

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

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

* * * * *

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

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

* * * * *

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

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

_Decree affirmed._[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....

2. To leave the loss where it falls.

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

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

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

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

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

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

ENGLAND, MARITIME CONVENTIONS ACT (1911), § 1.

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

Provided that—

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

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

BUTTERFIELD _v._ FORRESTER
IN THE KING’S BENCH, APRIL 22, 1809.
_Reported in 11 East, 60._

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

_Vaughan_, Serjt., now objected to this direction, on moving for a new trial; and referred to Buller’s Ni. Pri. 26,[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 fore-feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of a road about eight yards wide, when the defendant’s wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40_s._

_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 lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.

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

GURNEY, B., and ROLFE, B., concurred.

_Rule refused._[191]

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 case, but
incidentally proceeded to affirm the rule above quoted, citing Davies
_v._ Mann, 10 M. & W. 546; Inland & Seaboard Coasting Co. _v._ Tolson,
and other cases. There was no evidence in the Ives Case that the
plaintiff’s intestate was seen by those who were managing the train in
time to have avoided the accident. The court, in that case, however,
reaffirmed the rule that a traveller, on going upon a railroad track,
ought to make vigilant use of his senses of sight and hearing, and
listen for signals, and look in the different directions from which a
train might come, and said:—

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

It cannot be contended that in the Ives Case the Supreme Court
intended to lay down the broad rule that no contributory negligence of
the party injured will defeat his right to recover, if it be shown
that the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of that negligence. To so hold
would be to destroy the whole doctrine of contributory negligence. As
applied to the present case, it would mean that the plaintiff in error
was bound to know that the defendant in error was upon its track, and
that he would not step aside in time to avoid the train. Such is not
the doctrine of cases such as Northern Pacific Railroad _v._
Freeman[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, when killed, was on a trestle. The
train was backing down behind her, at a speed of from five to ten
miles an hour. There was evidence on plaintiff’s part that no bell was
rung, no whistle blown, no warning given of the approach of the train;
also that there was no lookout on the train, and no rear-end lights.

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

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

The judge qualified this instruction by adding:—

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

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

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

Verdict for plaintiff and judgment thereon. Defendant appealed.[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 recovery,
unless the injury is wantonly or wilfully inflicted; for the law
cannot measure how much of the injury is due to the plaintiff’s own
fault, and will not recompense one for injury resulting to himself
from his own misconduct. The objection to the charge is that it
instructed the jury that although plaintiff’s negligence contributed
to her injury as a proximate cause, she could recover if the defendant
by ordinary care could have avoided the injury. Is it not manifest
that such a rule would abolish contributory negligence as a defence?
The qualifying terms, “unless the railroad company could have avoided
injuring her notwithstanding her negligence,” would necessarily
mislead a jury; for they would at once say the railroad company could
have avoided the injury by not being negligent in the manner alleged
in the complaint, by having suitable rear end lights, by a reasonable
lookout, by loud warning of the train’s approach, by running at such
slow speed as to enable any one warned to get off the track; and then
utterly ignore the defendant’s plea and evidence of contributory
negligence, because of the instruction that plaintiff, notwithstanding
her negligence which proximately caused her injury, could still
recover, if the defendant could have avoided the injury. The jury
ought to have been instructed without qualification, that if plaintiff
was negligent and that negligence contributed as a proximate cause to
her injury, she could not recover, unless the injury was wantonly or
wilfully inflicted.

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

CORDINER _v._ LOS ANGELES TRACTION COMPANY
DISTRICT COURT OF APPEALS, SECOND DISTRICT, CALIFORNIA, APRIL 16, 1907.
_Reported in 4 California Appellate Decisions, 480._

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

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

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

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

RADLEY _v._ LONDON AND NORTH WESTERN RAILWAY COMPANY
IN THE HOUSE OF LORDS, DECEMBER 1, 1876.
_Reported in Law Reports, 1 Appeal Cases, 754._

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