in danger, used reasonable care for his own safety or that of his property, the damage would still not have happened. Thus my original negligence is a comparatively remote

St. 345; Washington v. Balt. & O. R. Co., 17 W. Va. 190; 10 Am. & Eng. R. Cas. 749; Varney v. Manchester, 58 N. H. 430; 42 Am. Rep. 592.

The converse of the rule last above announced may be found in the doctrine, that, if defendant knew, or had reason to apprehend, special dangers from his acts or omissions, or had greater capacity for understanding the harmful results likely to follow from his conduct than the Injured person had, he will be liable, notwithstanding acts or omissions on the part of the injured person, that with equal knowledge of the danger, or capacity to apprehend it, would have been contributory negligence. Jones v. Florence Mining Co., Sioux City etc. Ry. Co., 2 Dill. 294; Railroad v. Stout, 17 Wall. 657; Keff v. Milwaukee etc. R. Co., 21 Minn. 207; 18 Am. Rep. 393; Philadelphia etc. R. Co. v. Spearen, 47 Pa. St. 300; Bransom v. Labrot, 81 Ky. 638; 50 Am. Rep. 193; Holden v. Fitchburg R. Co., 129 Mass. 268; 2 Am. & Eng. R. Cas. 94; 37 Am. Rep. 343; Baltimore etc. R. Co. v. Rowan, 104 Md. 88; 23 Am. & Eng. R. Cas. 390; Louisville etc. R. Co. v. Frowley, 110 Md. 18, 22; 28 Am. & Eng. R. Cas. 308; Whirley v. Whiteman, 1 Head, 611; Smith v. Car Works(Mich.), 12 Am. & Eng. Corp. Cas. 269; Brush Electric Lighting Co. v. Kelly, 126 Ind. 222; 25 N. E. Rep. 812. Where one incurs danger in an attempt to save the life of another or in the discharge of a duty his conduct cannot be charged against him as contributory negligence. Donahoe v. Wabash, etc. R. Co., 83 Mo. 560; 53 Am. Rep. 594; Eckert v. L. I. R. Co., 57 Barb. 555; 43 N. Y. 503; 3 Am. Rep. 721; Evansville etc. R. Co. v. Hiatt, 17 Ind. 102; Pennsylvania Co. v. Roney, 89 Ind. 453; 12 Am. & Eng. R. Cas. 223; 46 Am. Rep. 173; Central R. Co. v. Crosby, 74 Ga. 737; 58 Am. Rep. 463; Atlanta etc. R. Co. v. Ray, 70 Ga. 674; 22 Am. & Eng. R. Cas. 281; Cottrill v. Chicago, M. & St. P. R. Co., 47 Wis. 634; 32 Am. Rep. 796; Central R. Co. v. Sears, 61 Ga. 279.

As said on a preceding page (391) the question whether the burden of proving contributory negligence rests on the defendant who pleads it, or its absence on the plaintiff who alleges its non-existence, is very much mooted, and a discussion of the perplexing rulings of the courts could not be undertaken here with either propriety or hope of solution. Among the cases holding that the burden is on the plaintiff are the following: Greenleaf v. Ill. etc. R. Co., 29 Ia. 14; 4 Am. Rep. 181; Slossen v. Burlington, etc. R. Co., 55 Ia. 294; 7 Am. & Eng. R. Cas. 509; Mount Vernon v. Dusonchett, 2 Ind. 586; 54 Am. Dec. 467; Cincinnati etc. R. Co. v. Butler, 103 Ind. 31; 23 Am. & Eng. R. Cas. 262; State v. Maine Cent. R. Co., 76 M. 357; 19 Am. & Eng. R. Cas. 312; 49 Am. Rep. 662; Kennard v. Burton, 25 Me. 39; 43 Am. Dec. 249; Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99; Teifel v. Hilsendegin, 44 Mich. 461; Doggett v. Richmond etc. R. Co., 78 N. C. 305; Indiana etc. R. Co. v.

cause of the harm, and as things turn out the proximate cause is the sufferer's own fault, or rather (since a man is under no positive duty to be careful in his own interest) he cannot ascribe it to the fault of another. In a state of facts answering this general description the person harmed is by the rule of the common law not entitled to any remedy. He is said to be "guilty of contributory negligence;" a phrase well established in our forensic usage, though not free from objection. It rather suggests, as the ground of the doctrine, that a man who does not take ordinary care for his own safety is to be in a manner punished for his carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one, nor supported by modern authority, and it is already distinctly rejected by writers of no small weight (g). And it stands ill with the common practice of our courts, founded on

(9) See Campbell, 180; Horace Smith, 226; and Wharton, §§ 300 sqq., who gives the same conclusions in a more elaborate form. The use of such phrases as in

pari delicto, though not without authority, is likewise confusing and objectionable.

Greene, 106 Ind. 279; 25 Am. & Eng. R. Cas. 322; 55 Am. Rep. 736; Chase v. Maine etc. R. Co., 77 Me. 62; 19 Am. & Eng. R. Cas. 356. Contra, O'Brien v. Tatum, 84 Ala. 186; 4 So. Rep. 159; Buesching v. St. Louis Gaslight Co., 73 Mo. 229; 39 Am. Rep. 503; Rapp v. St. J. & I. R. Co., 106 Mo. 423; 17 S. W. Rep. 487; Watson v. Oxanna Land Co., 92 Ala. 320; 8 So. Rep. 772; Georgia Pac. Ry. v. Davis, 92 Ala. 300; 9 So. Rep. 252; Denver & R. G. R. Co. v. Ryan, 17 Colo. 98; 28 Pac. Rep. 78; Hough v. Railroad Co., 100 U. S. 213; Railroad Co. v. Gladman, 15 Wall. 401; Indianapolis etc. R. Co. v. Horst, 93 U. S. 291; Dallas etc. R. Co. v. Spicker, 61 Tex. 427; 21 Am. & Eng. R. Cas. 160; 48 Am. Rep. 297; Prideaux v. Mineral Point, 43 Wis. 513; 28 Am. Rep. 558; Fowler v. Baltimore etc. R. Co., 18 W. Va. 579; 8 Am. & Eng. R. Cas. 480; McDougall v. Cent. R. Co., 63 Cal. 431; 12 Am. & Eng. R. Cas. 143; May v. Hanson, 5 Cal. 360; 63 Am. Dec. 135; Louisville etc. R. Co. v. Goetz, 79 Ky. 442; 14 Am. & Eng. R. Cas. 627; 42 Am. Rep. 227; Hocum v. Weitherick, 22 Minn. 152; Sanderson v. Frazier, 8 Colo. 79; 54 Am. Rep. 544; Sheff v. Huntington, 16 W. Va. 307; Bromley v. Birmingham M. R. Co. (Ala.), 11 So. Rep. 341; Washington & G. R. Co. v. Fobriner, 147 U. S. 571; 13 S. Ct. Rep. 557.

constant experience of the way in which this question "The received and usual way

presents itself in real life.

of directing a jury is to say that if 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, he cannot recover" (r). That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or could not have happened; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant's. Again the penal theory of contributory negligence fails to account for the accepted qualification of the rule," 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 plaintiff's negligence will not excuse him" (s). And in a recent leading case, of which there will be more to say, the criterion of what was the proximate cause of the injury is adopted throughout (t).

The element of truth which the penal theory, as I have called it, presents in a distorted form, is that the rule is not merely a logical deduction, but is founded in public utility. "The ultimate justification of the rule is in reasons of policy, viz. the desire to prevent accidents by inducing each member of the community to act up to the standard of due care set by the law. If he does not, he is deprived of the assistance of the law" (u).

(r) Lord Blackburn, 3 App. Ca. at p. 1207.

(8) Lord Penzance, Radley v. L. & N. W. R. Co. (1876), 1 App. Ca. at p. 759. (t) The Bernina (1887), 12 P. D. 36, 56 L. J. P. 38; affd. nom. Mills v. Armstrong

(1888), 13 App. Ca. 1, 57 L. J. P. 65; see especially the judgment of Lindley L. J., and cp. Little v. Hackett (1886), 116 U. S. 366, 371.

(u) W. Schofield in Harv. Law Rev. 111. 270.

Tuff v. Warman.

The leading case which settled the doctrine in its modern form is Tuff v. Warman (x). The action was against the pilot of a steamer in the Thames for running down the plaintiff's barge; the plaintiff's own evidence showed that there was no look-out on the barge; as to the conduct of the steamer the evidence was conflicting, but according to the plaintiff's witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the want of a look-out was negligence on the part of the plaintiff, and if so, whether it" directly contributed to the accident." This was objected to as too favourable to the plaintiff, but was upheld both in the full Court of Common Pleas and in the Exchequer Chamber. In the considered judgment on appeal (y) it is said that the proper question for the jury is "whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened." But negligence will not disentitle the plaintiff to recover, unless it be such that without it the harm complained of would (z) not have happened; "nor if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff."

Radley v. L. & N. W. R. Co. In Radley v. London and North Western Railway Co. (a), this doctrine received a striking confirmation.

The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery

(x) 2 C. B. N. S. 740, 5 C. B. N. S. 573,

27 L. J. C. P. 322 (1857-8).

(y) 5 C. B. N. S. at p. 585.

(2) Not "could: " see Beven on Negligence, 132.

(a) 1 App. Ca. 754, 46 L. J. Ex. 573, reversing the judgment of the Exchequer Chamber, L. R. 10 Ex. 100, and restoring that of the Court of the Exchequer, L. R. 9 Ex. 71 (1874-6).

owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs' men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those previously left on the siding. Some resistance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs' servants ought to have moved the first set of trucks to a safe place, or at any rate not have left the piled-up truck in a dangerous position. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident happened by the negligence of the defendant's servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendant's servants."

66

On these facts and under this direction the jury found that there was contributory negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer (b) held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber (c) held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of

(b) Bramwell and Amphlett BB.

(c) Blackburn, Mellor, Lush, Grove, Brett, Archibald JJ.; diss. Denman J.