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doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts irrespective of the fault which placed the plaintiff in the way of such injury. The fact that one has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. Even the criminal is not out of the protection of the law,* and is not to be struck down with impunity by other persons. If, therefore, the defendant discovered the negligence of the plaintiff in time, by the use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, he is justly chargeable with reckless injury, and cannot rely upon the negligence of the plaintiff as a protection. Or it may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.

'Hartfield . Roper, 21 Wend. 615; Vandegrift v. Rediker, 22 N. J. 185; Lafayette, &c., R. R. Co. v. Adams, 26 Ind. 76; Indianapolis, &c., R. R. Co. v. McClure, 26 Ind. 370; Mulherrin v. Delaware, &c. R. R. Co., 81 Penn. St. 366; Norris v. Litchfield, 35 N. H. 271; Daley v. Norwich, &c., R. Co., 26 Conn. 591; Chicago, &c., R. Co. v. Donahue, 75 Ill. 106; Litchfield Coal Co. v. Taylor, 81 Ill. 590; Tanner . Louisville, &c., R. R. Co., 60 Ala. 621. See Claxton's Admr. v. Railroad Co., 13 Bush, 636, and cases cited. Banks . Highland St. Ry Co., 136 Mass. 485. To allow one to recover in spite of contributory negligence, the act must have been done with design to produce injury or so that its natural and probable consequence would be to inflict injury on others. Belt. R. R., &c., Co. v. Mann, 107 Ind. 89; Louisville, &c., Co. v. Ader, 110 Ind. 376. An act may be "willful" in this sense without a direct intent. It may be such if reckless. Palmer v. Chicago, &c., Co., 14 N. E. Rep. 70 (Ind.). Injury caused by dropping of a toll gate to

prevent passage without paying is not willful. Brannen. Kokomo, &c., Co., 17 N. E. Rep. 202 (Ind.).

2 See ante, p. 181. While the mere fact that a plaintiff is doing an unlawful act when he is injured may not charge him, as matter of law, with contributory negligence, he cannot recover if the unlawful act is a cause contributing to the injury and not merely a condition of it. This was a case of collision with plaintiff's cab standing as forbidden by ordinance. Newcomb v. Boston Prot. Dep't, 16 N. E. Rep. 555 (Mass.).

3 Brown v. Hannibal, &c., R. R. Co., 50 Mo. 461; Macon, etc., R. R. Co. v. Davis, 18 Geo. 679; State v. Manchester, &c., R. R. Co., 52 N. H. 528; Cooper v. Cent. R. R. Co., 44 Iowa, 134; Kerwhacker v. Cleveland, &c., R. R. Co., 3 Ohio, (N. s.) 172.

4 See Balt. & Ohio R. R. Co. v. State, 33 Md. 512, 554. This seems to be the precise doctrine applied in Burham v. St. Louis, &c., R. R. Co., 56 Mo. 338. See Greenland v. Chap. lin, 5 Exch. 243; O'Brien v. McGlinchy, 68 Me. 552; Gunter v. Wick

The General Rule of Contributory Negligence.

Regarding the case of a negligent injury the general result of the authorities seems to be, that if the plaintiff or party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast

all the consequences upon the defendant, nor will it at[*675] tempt any *apportionment thereof. This is the English rule, and it has been accepted by the courts in this country with few exceptions. In a leading English case, often quoted, in which the responsibility for the collision of vessels was in question, Mr. Justice WIGHTMAN said: "It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, 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 or 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. In the first case the plaintiff would be entitled to recover, in the latter not; as, but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care and caution would not, however, disentitle him to recover, unless it were such that but for that negligence and want of ordinary care and caution the misfortune could 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." ' In the note a great many

American cases are named which follow this rule.'

er, 85 N. C. 310, and see cases post, p. *680.

Tuff. Warman, 5 C. B. (n. s.) 573, 585. See, also, Butterfield 0. Forester, 11 East, 60; Mayor of Colchester v. Brooke, 7 Q. B 339; Davies v. Mann, 10 M. & W. 545; Lewis v. Baltimore, &c. R. R. Co., 38 Md.588; Balt., &c., Co. v. Kean, 65 Md. 394.

2 Indianapolis, &c., R. R. Co. v. Horst, 93 U. S. 291; Railroad Co. v. Jones, 95 U. S. 439; Reeves v. Dela

ware, &c., R. R. Co., 30 Penn.
St. 454; Pennsylvania R. R. Co. .
Lewis, 79 Penn. St. 33; Mulherrin e
Delaware, &c., R. R. Co., 81 Penn.
St. 366; Cent. R. R. Co. v. Feller, 84
Penn. St. 226; Forks Township .
King, 84 Penn. St. 230; Monongahela
. Fischer, 111 Penn. St. 9; Nor.
Cent. R. R. Co. v. Price, 29 Md 420;
Frech v. Philadelphia, &c., R. R. Co.,
39 Md. 574; Lewis v. Balt. & Ohio R
R. Co., 38 Md. 588; Baltimore, &c.,

*But while the English rule has been generally ac- [*676] cepted in this country, there has, perhaps, in two or three States, been a departure from it. The early Illinois cases accepted the English rule without question;' but in later cases, when the question of contributory negligence has been presented,

R. R. Co. v. Mulligan, 45 Md. 486; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; Hill v. New Haven, 37 Vt. 501; Barnes v. Cole, 21 Wend. 188; Johnson v. Hudson R. R. R. Co., 20 N. Y. 65; Gray v. Second Av. R. R. Co., 65 N. Y. 561; Steves v. Oswego, &c., R. R. Co., 18 N. Y. 422; Dufer v. Cully, 3 Oreg. 377; Lucas v. New Bedford, &c., R. R. Co., 6 Gray, 61; Smith v. Smith, 2 Pick. 621; Farnum v. Concord, 2 N. H. 392; State v. Manchester, &c., R. R. Co., 52 N. H. 528; Moore v. Cent R. R. Co., 24 N. J. 268; Cent. R R. Co. v. Moore, 24 N. J. 824: Telfer v. Nor. R. R. Co., 30 N. J. 188; Central R. R. Co. v. Van Horn, 38 N. J 133; Garmon v. Bangor, 38 Me. 443; Timmons v. Cent. Ohio R. R. Co., 6 Ohio, (N. s.) 105; Cleveland, &c., R. R. Co. v. Terry, 8 Ohio (N. s.) 570; Sandusky, &c., R. R. Co. v. Sloan, 27 Ohio, (N. s.) 341; Williams v. Mich. Cent. R. R. Co., 2 Mich. 259; Lake Shore, &c., R. R. Co. v. Miller, 25 Mich. 274; Mich. Cent. R. R. Co. v. Campau, 35 Mich. 469; New Haven, &c., Co. v. Vanderbilt, 16 Conn, 420; Birge v. Gardiner, 19 Coun. 507; Beers v. Housatonic R. R. Co., 19 Conn. 566; Park v. O'Brien, 23 Conn. 339; Jackson v. Commissioners, &c., 76 N. C. 282; Donaldson v. Milwaukee, &c., R. R. Co., 21 Minn. 293; Brown v. Milwaukee, &c., R. R. Co., 22 Minn. 165; Erd v. St. Paul, 22 Minn. 443; New Orleans, &c., R. R. Co. v. Hughes, 49 Miss. 258; Memphis, &c., R. R. Co. v. Thomas, 51 Miss. 637; Paducah, &c., R. R. Co. v. Hoehl, 12 Bush, 41; Koutz v. Toledo, &c., R. R. Co., 54

Ind. 515; Louisville, &c., R. R. Co. v. Boland, 53 Ind. 398; Jefferson ville, &c., R. R. Co. v. Lyon, 55 Ind. 477; West. Union Tel. Co. v. Eyser, 2 Colorado, 141; Robinson v. West. Pac. R R. Co., 48 Cal. 409; Deville v. Sou. Pac. R. R. Co., 50 Cal. 383; Hearne v. Sou. Pac. R. R. Co, 50 Cal. 482; Macon, &c., R. R. Co. v. Baber, 42 Geo. 300; Adams v. Wiggins Ferry Co., 27 Mo. 95; Smith v. Union Pac. R. R. Co., 61 Mo. 588; Harlan v. St. Louis, &c., R. R. Co., 65 Mo. 22; Laicher v. New Orleans, &c., R. R. Co., 28 La. Ann. 320; Johnson v. Canal, &c., Co.,, 27 La. Ann. 53; West. U. Tel. Co. v. Quinn, 56 Ill. 319; Mobile, etc., R. R. Co. v. Ashcraft, 48 Ala. 15; Carter v. Chambers, 79 Ala. 223; Lynam . Philadelphia, &c., R. R. Co., 4 Houst. 583; Jefferson v. Brady, 4 Houst. 626; Trout v. Virginia, &c., R. R. Co., 23 Grat. 619; Patterson v. Burlington, &c., R. R. Co., 39 Iowa, 279; Murphy . Chicago, &c., R. R. Co., 45 Iowa, 661. There is a statute in this State which provides that "every railroad company shall be liable for all damages sustained by any person, including employes of the company, in consequence of any neglect of the agents, or by any mismanagement of the engineers or other employees of the corporation, to any person sustaining such damage." In the case last cited it is decided that that statute is not intended to disturb the rule that the plaintiff shall not recover when chargeable with contributory negligence.

'Aurora Branch R.R. Co. v. Grimes, 13 Ill. 585.

a form of language has been used which is, to say the least, liable to be understood as a departure. The departure, if there [*677] is any, in that State, began with Galena, etc., R. R. Co. v. Jacobs, in which the English cases are reviewed at length, and without at all questioning the leading cases, either English or American, the following remarks are made: "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 degrees 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." But was not this equivalent, in the. mind of the judge, to saying that if the defendant is chargeable with the want of ordinary care, and the plaintiff is not, the latter may recover, notwithstanding that a higher degree of care might have prevented the injury? In several cases the court has declared that a mere preponderance of negligence on the part of the defendant, where both were in fault, will not justify a

1

Galena, &c., R. R. Co. v. Jacobs 20 Ill. 478, 496, per BREESE, J. The following are some of the more recent cases in which this doctrine has been approved and applied: Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Toledo, &c.. R. R. Co. v. McGinnis, 71 Ill. 346; Ill. Cent R. R. Co. v Hall, 72 Ill. 222; Rockford, &c., R. R. Co. . Hillmer, 72 III. 235; III. Centr. R. R. Co. v. Hammer, 72 Ill. 347; St. Louis, &c., R. R. Co. v. Britz, 72 Ill. 256; Chicago, &c., R. R. Co. v. Dona

hue, 75 Ill. 106; Toledo, &c., R. R Co . O'Connor, 77 Ill. 391; Chicago, &c., R. R. Co. v. Hatch, 79 Ill. 137; Sterling Bridge Co. v. Pearl, 80 Ill. 251; Kewanee v. Depew, 80 Ill. 119; Chicago, &c., R. R. Co. v. Damerell, 81 Ill. 450; Chicago, &c., R. R. Co. v. Harwood, 90 Ill. 425; Calumet, &c., Co. v. Martin, 115 ill. 358; Lake Shore, &c., Ry Co. v. O'Conner, 115 Ill. 254; Chicago, &c., Co. v. Hutchinson, 120 Ill. 587; Chicago, &c., Co. v. Warner 14 N. E. Rep. 206 (Ill.)

recovery,' and when a jury has been told that the plaintiff may recover unless his negligence contributed to the injury in a considerable degree the court has promptly set aside the verdict." And it seems to be clear that the court has aimed at *all times to make the plaintiff's right of recovery-so [*678] far as concerned contributory negligence-depend upon the question whether he had or had not been chargeable with a want of ordinary care which directly contributed to the injury. And as what is ordinary care must of course depend upon the circumstances, this would be equivalent to holding-if the idea of degrees in negligence was put aside-that the plaintiff may recover in such cases, because he was not guilty of what in law is negligence.

In Georgia a rule seems to be laid down not essentially different from that in Illinois. "It is this, that although the plaintiff be somewhat in fault, yet if the defendant be grossly negligent and thereby occasioned or did not prevent the mischief, the action may be maintained." The same is true of Kansas."

4

In a case in Tennessee, where it appeared that the engine of a railroad company was running in the night time without a head

Chicago, &c., R. R. Co. v. Clark,

70 Ill. 276; Indianapolis, &c., R. R. Co. v. Flannigan, 77 Ill. 365.

2 Sterling Bridge Co. v. Pearl, 80 Ill. 251.

See Ill. Cent. R. R. Co. v. Green, 81 Ill. 19, and cases cited. See, also Rockford, &c, R. R. Co. v. Delaney, 82 Ill. 198; Schmidt . Chicago, &c., R. R. Co., 83 Ill, 405. Says RYAN, Ch. J., in Griffin v. Willow, 43 Wis. 509, 512: "Slight negligence is not slight want of ordinary care contributing to the injury which would defeat an action for negligence. 'Slight negligence is defined to be only an absence of that degree of care and vigilance which persons of extraordinary vigilance and foresight are accustomed to use.' And such want of extraordinary care on the part of the person injured will not defeat an action for negligence. Dreher v. Fitchburg, 22 Wis. 675; Ward v. Rail

way Co. 29 Wis. 144; Hammond v. Mukwa, 40 Wis. 35. In ordinary circumstances, persons traveling upon public highways are held to the exercise of ordinary care only."

4 Augusta, &c., R. R. Co. v. McElmurry, 24 Geo. 75, 80. See Atlanta, &c., Co. v. Wyly, 65 Geo. 120.

5 Union Pacific R. R. Co. v. Rollins, 5 Kan. 167. In later cases the court disclaim asserting the doctrine of comparative negligence, but hold, nevertheless, that if the plaintiff's negligence is slight he may recover. Kansas, &c., Ry Co. v. Peavey, 29 Kan, 169; Atchison, &c., R. R. Co. v. Morgan, 31 Kan. 77. So in Texas while holding the doctrine of comparative negligence erroneous, the court has allowed a recovery if the plaintiff's negligence is not such as to amount to want of ordinary care. Houston, &c., Ry Co. v. Gorbett, 49 Tex. 573.

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