his own convenience." untenable.

This ground would now clearly be

Admiralty rule of dividing loss. The common law rule of contributory negligence is unknown to the maritime law administered in courts of Admiralty jurisdiction. Under a rough working rule commonly called judicium rusticum, and apparently derived from early medieval codes or customs, with none of which, however, it coincides in its modern application (p), the loss is equally divided in cases of collision where both ships are found to have been in fault."The ancient rule applied only where there was no fault in either ship" (7); as adopted in England, it seems more than doubtful whether the rule made any distinction, until quite late in the eighteenth century, between cases of negligence and of pure accident. However that may be, it dates from a time when any more refined working out of principles was impossible (r). As a rule of thumb, which frankly renounces the pretence of being anything more, it is not amiss, and it appears to be generally accepted by those whom it concerns, although, as Mr. Marsden's researches have shown, for about a century it has been applied for a wholly different purpose from that for which it was introduced in the older maritime law, and in a wholly different class of cases. By the Judicature Act, 1873 (r), the judicium rusticum is expressly preserved in the Admiralty Division.

(p) Marsden on Collisions at Sea, ch. 6 (3d ed.), and see an article by the same writer in L. Q. R. ii. 357.

(g) Op. cit. 130.

(r) Writers on maritime law state the rule of the common law to be that when both ships are in fault neither can recover anything. This may have been practically so in the first half of the century, but it is neither a complete nor a correct version of the law laid down

in Tuff v. Warman, 5 C. B. N. S. 573, 27 L. J. C. P. 322. As long ago as 1838 it was distinctly pointed out that "there may have been negligence in both parties, and yet the plaintiff may be entitled to recover: " Parke B. in Bridge v. Grand Junction R. Co. (1838), 3 M. & W. 244, 248.

(r) S. 25, sub-s. 9. The first intention of the framers of the Act was otherwise. See Marsden, p. 134, 3d ed.

IV.- Auxiliary Rules and Presumptions.

Action under difficulty caused by another's negligence. There are certain conditions under which the normal standard of a reasonable man's prudence is peculiarly difficult to apply, by reason of one party's choice of alternatives, or opportunities of judgment, being affected by the conduct of the other. Such difficulties occur mostly in questions of contributory negligence. In the first place, a man who by another's want of care finds himself in a position of imminent danger cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger. That which appears the best way to a court examining the matter afterwards at leisure and with full knowledge is not necessarily obvious even to a prudent and skilful man on

Action under difficulty caused by another's negligence. Agreeing with the text, vide Wesley Coal Co. v. Healer, 84 Ill. 126, followed in Silver Cord C. M. Co. v. McDonald, 14 Colo. 191; 23 Pac. Rep. 346. Collins v. Davidson, 19 Fed. Rep. 83. In the leading case of Brookhaven Lumber Co. v. Illinois Central R. Co. (68 Miss. 432; 10 So. Rep. 66) where the facts were, that by the wrongful act of some unknown person, a switch leading upon a side track was left open, and, beyond this on the side track another switch was misplaced. At night the engineer of a passenger train, running on a down grade thirty-five miles an hour, at a distance of 300 feet, saw that the first switch was open and promptly applied the air brakes but the train rushed upon the side track, and was derailed at the second switch and ran into a mill shed, which would not have been struck but for that switch, that the engineer did not see.

In a case against the company by the owner of the property destroyed by fire communicated in the collision the court said: “the engineer was only required to act in view of what he then saw, situated as he was, and that suddenly and unexpectedly confronted with a complicated difficulty impossible to have been foreseen, he is not to be held accountable for failure to exercise that cool and unembarrassed and unerring judgment which we, freed from sudden surprise and danger, could now form and execute. He appears to have done the best he could, situated as he was, and nothing more could reasonably be required of him."

See Lawrence v. Green, 71 Cal. 421; Dutzi v. Geisel, 23 Mo. App. 676; Karr v. Parks, 40 Cal. 188; Culyer v. Decker, 20 Hun, 174; Lowery v.

a sudden alarm. Still less can the party whose fault brought on the risk be heard to complain of the other's error of judgment. This rule has been chiefly applied in maritime cases, where a ship placed in peril by another's improper navigation has at the last moment taken a wrong course (s): but there is authority for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into thinking the line safe for crossing, is not bound to minute circumspection, and if he is run over by a train the company may be liable to him although "he did not use his faculties so clearly as he might have done under other circumstances" (t). "One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is ill-judged" (u).

(s) The Bywell Castle (1879), 4 P. Div. 219; The Tasmania (1890), 15 App. Ca. 223, 226, per Lord Herschell; and see other examples collected in Marsden on Collisions at Sea, pp. 4, 5, 3d ed.

(t) N. E. R. Co. v. Wanless (1874), L. R. 7 H. L. at p. 16; cp. Slattery's ca. (1878), 3 App. Ca. at p. 1193.

(u) Briggs v. Union Street Ry. (1888), 148 Mass. 72, 76.

Manhattan Ry Co., 99 N. Y. 158; 52 Am. Rep. 12; Marks v. St. Paul, etc. Ry. Co., 30 Minn. 493; Moore v. Edison, etc. Co., 43 La. An. 792; 9 So. Rep. 433; Lincoln Rapid Transit Co. v. Nichols (Neb.), 55 N. W. Rep. 872; Gibbons v. Wilkesbarre etc. St. Ry. Co., 155 Pa. St. 279; 26 At. Rep. 417.

The master is not liable for an error of judgment of the servant in extricating an injured person from a perilous situation. "A right of action under such circumstances, can arise only where the injury was inflicted or increased because of the doing or the omission to do some act or acts the doing of which or the omission to do which was other than the result of an error of judgment as to the means to be used in extricating the plaintiff. Any other rule would, where there were various steps in the happening of an action culminating in the injuries suffered, authorize a division of liability as to those various steps, which contribute to the happening of the whole accident." Rhing v. B'way & S. A. R. Co., 53 Hun, 323; 6 N. Y. S. Rep. 641.

But "if one acts unreasonably rashly, or becomes frightened at a trivial occurrence, not calculated to alarm a reasonably prudent man, and thereby brings injury upon himself, there is no liability." South Covington etc. Ry. Co. v. Ware, 84 Ky. 271; 1 S. W. Rep. 493. See McLean v. Schuyler Steam Tow-Boat Line, 52 Hun, 43; 4 N. Y. S. Rep. 790.

One

No duty to anticipate negligence of others. might generalize the rule in some such form as this: not only a man cannot with impunity harm others by his negligence, but his negligence cannot put them in a worse position with regard to the estimation of default. You shall not drive a man into a situation where there is loss or

No duty to anticipate negligence of others. "Any citizen in the possession of his own business may everywhere act upon the assumption that no other citizen will by misfeasance, or nonfeasance, cause him an injury, unless there is something in the circumstances of the case which casts upon him the duty of actual vigilance for his own safety. "New York etc. R. Co. v. A. R. Co., 129 N. Y. 602; 29 N. E. Rep. 829. "It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any.' Beach Contrib. Neg. 41, and cases cited. The authorities cited by the learned commentator go much further than the text, and state the rule to be that every one has a right to presume that others, owing a special duty to guard against danger, will perform that duty." Engel v. Smith, 82 Mich. 1; 46 N. W. Rep. 22. "It cannot, therefore, be said as a matter of law, that one is guilty of negligence who does not anticipate, and take special precaution against, injury from the reckless and improper conduct of others in riding or driving at an unusual and dangerous rate of speed." Stringer v. Frost, 116 Md. 480; 19 N. E. Rep. 331. Again, in Brosnan v. Sweetzer (127 Ind. 1; 26 N. E. Rep. 555), where the defendant had in their store a trap-door in the floor in front of the counter. Plaintiff, a customer, walked over this floor while closed, and when attempting to walk back while it was open, though she did not see it, she fell through and was injured. The court said: "She had the right to rely upon the floor being in good, safe condition. to suspect danger."

She had no reason

Rep. 938; Bowen

See Frank v. City of St. Louis, 110 Mo. 516; 19 S. W. v. Flanagan, 84 Va. 313; Hannem v. Pence, 40 Minn. 127; 41 N. W. Rep. 659; Dickson v. Hollister, 123 Pa. St. 430; 23 W. N. C. 128; Galvin v. Mayor, etc. of New York, 112 N. Y. 228; 19 N. E. Rep. 675; Perry v. Smith, 156 Mass. 340; 31 N. E. Rep. 9; Kennayde v. Pacific R. Co., 45 Mo. 255; White v. Cincinnati, etc. Ry. Co., 89 Ky. 478; 12 S. W. Rep. 936; Jacksonville, T. & K. Ry. Co. v. Peninsular Land etc. Co., 27 Fla. 157; 9 So. Rep. 675; Fisk v. Wait, 104 Mass. 71; Moulton v. Aldrich, 28 Kan. 300; Fox v. Sackett, 10 Allen, 533; Damour v. Lyons, 44 Ia. 276; Harpel v. Curtis, 1 E. D. Smith, 78; Brown v. Lynn, 31 Pa. St. 510; Barton v. Syracuse, 37 Barb. 292; Morrisey v. Wiggins Ferry Co., 47 N. W. 521; Thomp. Car. of Pass. 243; Robinson v. Railroad Co., 48 Cal. 409.

risk every way, and then say that he suffered by his own imprudence. Neither shall you complain that he did not foresee and provide against your negligence. We are entitled to count on the ordinary prudence of our fellowmen until we have specific warning to the contrary. The driver of a carriage assumes that other vehicles will observe the rule of the road, the master of a vessel that other ships will obey the statutory and other rules of navigation, and the like. And generally no man is bound (either for the establishment of his own claims, or to avoid claims of third persons against him) to use special precaution against merely possible want of care or skill on the part of other persons who are not his servants or under his authority or control (x).

It is not, as a matter of law, negligent in a passenger on a railway to put his hand on the door or the windowrod, though it might occur to a very prudent man to try first whether it was properly fastened; for it is the company's business to have the door properly fastened (y). On the other hand if something goes wrong which does not cause any pressing danger or inconvenience, and the passenger comes to harm in endeavouring to set it right himself, he cannot hold the company liable (z).

Choice of risks under stress of another's negligence. We have a somewhat different case when a person, having an apparent dilemma of evils or risks put before him by

(x) See Daniel v. Metrop. R. Co. (1871), L. R. 5 H. L. 45, 40 L. J. C. P. 121.

(y) Gee v. Metrop. R. Co. (1873), Ex. Ch. L. R. 8 Q. B. 161, 42 L. J. Q. B. 105. There was some difference of opinion how far the question of contributory negligence in fact was fit to be put to the jury.

(z) This is the principle applied in Adams v. L. & Y. R. Co. (1869), L. R. 4 C. P. 739, 38 L. J. C. P. 277, though (it seems) not rightly in the particular case; see in Gee v. Metrop. R. Co., L. R. 8 Q. B. at pp. 161, 173, 176.

"One may,

Choice of risks under stress of another's negligence. without fault of his own, be in a situation where he must choose a peril ous alternative. The degree of danger, the stress of circumstances, the