5. Action lies for injury from negligent driving or riding. The wrong-doer is answerable.

A party who sustains an injury from the careless or negligent driving of another, may maintain an action therefor unless he has himself been guilty of such negligence or want of due care as to have contributed or conduced to the injury. Coltman, J. in Thorogood v. Bryan, 8 Man. Grang. & Scott 180, 65 Eng. Com. Law Rep. 180.

The principle is that the wrongdoer is answerable for the mischief caused by his wrong. Wakeman v. Robinson, 1 Bingh. 213, 8 Eng. Com. Law Rep. 300; Pluckwell v. Wilson, 5 C. & P. 375, 24 Eng. Com. Law Rep. 368; Williams v. Holland, 6 C. & P. 23, 10 Bingh. 112, 25 Eng. Com. Law Rep. 50, 261; Munroe v. Leach, 7 Met. 274. A man riding through the gate on the wrong side of the turnpike may if a collision occur, be considered the wrongdoer, unless when seen by the other party the latter had such clear space that he might easily have gotten away. Chaplin v. Hawes &c. 3 C. & P. 554, 14 Eng. Coni. Law Rep. 445. In determining questions of this sort the conduct of each party must be considered. If a person be not on the side of the road appropriated for those going as he does, he is bound to use more care and diligence, and keep a better look out that he may avoid any concussion than would be requisite if he were to confine himself to his proper side of the road. Alderson, J., in Pluckwell v. Wilson. So in a town if the plaintiff leave a side walk there may be occasion for him to look behind as well as before to avoid contact with persons riding or driving in the middle of the street. Wynn v. Allard, 5 W. & S. 524. Still a defendant in a case of this kind might be guilty of such negligence as would make him the wrongdoer. S. C. S. C. A man is not authorized purposely to ride up against persons riding upon what is considered to be the wrong side of the road. Op. in Butterfield v. Forrester, 11 East 60.

6. Whether action for defendant's negligence, may be defeated because of plaintiff's want of care. How the principle is applied where the plaintiff is an adult.

A plaintiff who was riding violently in a street of a town was thrown down with his horse and injured by means of an obstruction placed there by the defendant. He failed in his action for such injury, because if instead of riding so very hard, he had used ordinary care he might have seen the obstruction and avoided it. Butterfield v. Forrester, 11 East

60. The principle is acted on in Flower v. Adam, 2 Taunt. 314, where the plaintiff might have avoided the obstruction if he had managed his horse with ordinary skill and care. In Bull. N. P. 26, it is said; "if a man lay logs of wood cross 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." This citation at first struck the supreme court of Massachusetts as maintaining a principle different from that laid down in Butterfield v. Forrester and Flower v. Adam, but on further consideration the court thought otherwise. "The meaning of the passage," Parker, C. J. says, "undoubtedly is that notwithstanding a person using due care may possibly pass the obstruction without injury, nevertheless if one is injured, that is, as we understand it, if one who uses this care does by misfortune suffer from the obstruction, he shall recover." Smith v. Smith, 2 Pick. 624, 5.

The principle of Butterfield v. Forrester was invoked in a remarkable manner in an action brought under the statute of 10 Vict. c. 93, to recover damages against an omnibus proprietor for negligently causing the death of the plaintiff's husband by knocking him down and driving over him as he had just alighted from another omnibus. The jury were told to find for the defendant if they should be of opinion that the deceased or the driver of the omnibus by which he was carried, had by any negligence or want of care contributed to the accident. There being a verdict for the defendant, a motion was made for a new trial; and it was argued that the ruling of the judge would lead to this absurd result that a passenger who is injured by a collision between two omnibuses has no remedy against the proprietor of either if the drivers of both are guilty of negligence or improper conduct. Yet the court of common pleas overruled the motion; considering the deceased as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased. said Maule, J., "the deceased himself had been driving, the case would have been quite free from doubt. So there could have been no doubt had the driver been employed to drive him and no one else." On the part of the plaintiff it was suggested that a passenger in a public conveyance had no control over the driver. "I think," added Maule, J., "that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom by his servant the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it. According to the terms of his contract, he unquestionably has

a remedy for any negligence on the part of the person with whom he contracts for the journey." Thorogood v. Bryan, 8 Man. Grang. & Scott 115, 65 Eng. Com. Law Rep. Whether this case should be regarded as law, may be doubted since the decisions of the court of exchequer in Rigby v. Hewitt, 5 W. H. & G. 240, and Greenland v. Chaplin, Id. 244.

The rule of law says Parke, B., is laid down with perfect correctness in Butterfield v. Forrester. That rule is 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. Bridge v. Grand Junction Railway Co. 3 M. & W. 244; Davies v. Mann, 10 Id. 546; Woolf v. Beard, 8 C. & P. 373; Hawkins v. Cooper, Id. 473, 34 Eng. Com. Law Rep. 435, 485; Marriott v. Stanley, 1 Man. & Grang. 568, 39 Eng. Com. Law Rep. 559; Clayards v. Dethick &c. 12 Adol. & El. N. S. 439, 64 Eng. Com. Law Rep.; Parker v. Adams, 12 Metcalf 418.

In a case for running against and killing a donkey in a highway, the judge told the jury that the mere fact of the plaintiff's negligence 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," said

Parke, B., "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 in 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." Davies v. Mann, 10 M. & W. 546.

An action failed against a railroad company for negligently running their train of cars against the plaintiff's wagon (while he was crossing the railroad track) whereby the wagon was destroyed and the plaintiff thrown out and injured; it being impossible to maintain that the plaintiff was free from negligence. Spencer v. Utica & S. Railroad Co. 5 Barbour 337.

7. Whether the action of a young child against one guilty of negligence can be defeated on the ground of there being a want of ordinary care on the plaintiff's part.

A person of full age getting up into the defendant's cart without any authority to do so must take all the consequences of his own misconduct. Lygo v. Newbold, 9 W. H. & G. 302. Shall this principle be applied against an infant? Suppose that in the case of the horse and cart mentioned ante, p. 658, a small boy had, during the carman's absence, got upon the cart, and that when the horse advanced the boy fell and was run over by the wheel and his leg broke, will the fact that the child was, in doing an unlawful act, a co-operating cause of his own misfortune, deprive the child of his remedy?

In New York the rule requiring of the plaintiff the exercise of ordinary care has been applied against an action for redress brought by a child of about two years of age who was run over with a sleigh and horses and had his arm broken. At the time of the accident he was standing or sitting in the beaten track of a country road; which the court thought the child's parents, or others standing in their place, could have prevented by ordinary care. On the ground that the defendants were free from gross neglect, and that the plaintiff was unnecessarily, not to say illegally, occupying the road (for he did not appear to have been travelling,) the court decided against the plaintiff; thereby holding that the injury was a consequence of such neglect as the law must impute to him through others. Hartwell v. Roper, 21 Wend. 623.

Lord Ellenborough's doctrine in Butterfield v. Forrester, is thus applied in New York in a way somewhat different from that in which it is applied in the court of queen's bench. “Ordinary care," Lord Denman considers, "must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation; and this would evidently be very small indeed in so young a child." 1 Adol. & El. Ñ. S. 36. In the case of a boy under 7 years old who had entered the cart left with the horse in the street, the court considered that a jury would naturally enquire whether the horse was vicious or steady; whether the occasion required the servant to be so long absent from her charge, and whether in that case no assistance could have been procured to watch the horse: whether the street was at that hour likely to be clear or thronged with a noisy multitude: especially whether large parties of young children might reasonably be expected to resort to the spot. Supposing upon such enquiries a case of gross

negligence on the defendant's part to be fully established, then if the plaintiff merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, the opinion of the court was that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. Lynch v. Nurdin, 1 Adol. & El. N. S. 30, 41 Eng. Com. Law Rep. 422. This decision is approved in Connecticut. Birge v. Gardiner, 19 Conn. 511, 12. There may, nevertheless, be cases in which negligence might be attributable to the person who permits the child to be at large. It is not, for example, at all likely that a person who rides in his carriage without a servant would be held liable for an injury received by a child from getting up behind for the purpose of having a ride. 9 W. H. & G. 305.

8. Right of action where there is a collision between two vessels. How it is in different cases: 1. where negligence by defendants; 2. where accident was unavoidable; 3. where plaintiff was in fault; 4. where faults on both sides.

The liability of the owners of a vessel for the master's want of skill, or for his negligence, while acting within his proper sphere, is undoubted. Carsley &c. v. White &c. 21 Pick. 254. And there is no doubt that it is the duty of a person proceeding in a vessel of which he is possessed and has the control and management, to use reasonable skill and care to prevent mischief to other vessels. In case of a collision arising from his negligence he must sustain, without compensation, the damage occasioned to his own vessel, and is liable to pay compensation for that sustained by the owners of another navigated with due skill and care; or sustained by persons or by the owners of goods on that other; and his liability is the same whether his vessel be in motion or stationary, floating or aground, under water or above it. Maule, J. in 5 Man. Gr. & Scott 616, 57 Eng. Com. Law Rep.; Vanderplank &c. v. Miller &c. 1 Moo. & Malk. 169, 22 Eng. Com. Law Rep. 280; Lack v. Seward, 4 C. & P. 106, 19 Eng. Com. Law Rep. 298; Luxford v. Large, 5 C. & P. 421, 24 Eng. Com. Law Rep. 391; St. John v. Paine &c. 10 How. 557; Newton v. Stebbins, Id. 586. Defendants were held liable for an injury occurring from their ship not giving way when it had the wind and the plaintiffs had a right to expect it would make room. Vernall v. Gainer, 1 C. & M. 22, 3 Tyrwh. 85.