Chapter XXII: Section VIII: Contributory Culpable Conduct of Plaintiff (2)

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 the 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.

A 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 fact, 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. The 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.

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 other 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 looks 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 his 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.

The 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 be 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, &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.

The 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 negligence, 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 both 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 had 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 there, 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, wantonly, 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....