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bility is so far a question for the jury, that their verdict cannot properly be disturbed, although found for the plaintiff and at the same time recognizing some degree of fault on his part. Thus, if one vessel is damaged by another, and the jury find a verdict for the plaintiff, the Court will not send the case to a new trial, because there may be some ground to believe, that the plaintiff was negligent in navigating his vessel as well as the defendant.1 So, in an action for improperly navigating a steamboat, whereby the plaintiff's barge was sunk, it appeared that a large steamvessel preceded the defendant's steamboat, and partly occasioned the swell, which caused the injury; and also that the plaintiff's barge was improperly trimmed and insufficiently manned. The jury found a verdict for a fourth part of the damage actually sustained, alleging as a ground for so doing, that blame was not attributable to the defendants alone, the barge not being properly trimmed. Held, although this allegation might have been a reason for directing the jury to reconsider their verdict, it furnished no ground for granting a new trial.2 (a) So, in an action by the owner of a coach and horses against the driver of another coach, for driving the wheels of his coach upon one of the horses attached to the plaintiff's coach; it is a question for the jury, whether the plaintiff's driver was guilty of such misconduct as to prevent the plaintiff's recovery; and the court cannot properly give peremptory instructions to the jury, that the

1 Collinson v. Larkins, 3 Taunt. 1.

2 Smith v. Dobson, 3 M. & Gr. 59; 3 Scott, N. 336.

(a) Upon similar ground, though not involving the question of fault in the plaintiff, if persons enter the plaintiff's close adjoining to his paddock, with guns and dogs, not keeping in the footpath; and their dog pulls down and kills one of the plaintiff's deer; and the jury (considering this as an intentional, and not a merely accidental trespass,) finds for the plaintiff; the Court will not set aside their verdict; even though the Judge who tried the cause thought it a mere accident. Beckwith v. Shordike, 4 Burr.

2092.

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defendant is entitled to a verdict because of the misconduct of the plaintiff's driver.1 So it is no ground for a new trial, that the Court omitted to charge the jury upon a supposed or possible state of facts, not proved, or claimed to be proved. Therefore, where the plaintiff, in an action for driving the defendant's carriage against the plaintiff's and oversetting it, claimed, that the injury occurred entirely through the negligence of the defendant; and also, that, if the plaintiff was guilty of negligence, the defendant drove his carriage against the plaintiff's by design or gross negligence, and thereby caused the injury; and that, in either of these events, the plaintiff was entitled to recover; and the defendant did not claim to justify himself, on the ground that the plaintiff was guilty of any negligence at the time, but by a course of misconduct pursued by the plaintiff, on the road, previous to the collision, and at some distance from the place where it happened, which misconduct could not possibly concur in directly producing the injury; held, the Court might properly omit to charge the jury as to the effect of negligence on the part of the plaintiff. So, although in an action for damage occasioned by the defendant's negligence a material question is, whether or not the plaintiff might have escaped the damage by ordinary care on his own part; the defendant is not excused, merely because the plaintiff knew that some danger existed through the defendant's neglect, and voluntarily incurred such danger; and the amount of danger, and the circumstances which led the plaintiff to incur it, are for the consideration of the jury. Therefore, where commissioners of sewers had made a dangerous trench in the only outlet from a mews, putting up no fence, and leaving only a narrow passage on which they heaped rubbish; and a cabman, in the exercise of his calling, attempted to lead his horse out over the rubbish, and the horse fell and was killed, for which loss he brought an action held, that the plaintiff might recover, though he had,

1 Munroe v. Leach, 7 Met. 274.

2 Churchill v. Rosebeck, 15 Conn. 359.

at some hazard, created by the defendants, brought his horse out of the stable; and that the case was properly left to the jury, on the question whether or not the plaintiff had persisted, contrary to express warning at the time, (as to which there was contradictory evidence), in running upon a great and obvious danger.1 So, in an action against a railway company, for so negligently managing and lighting their station, that the plaintiff, a passenger, was thrown down while on his way to the carriages; upon the plea of not guilty, the defendant's counsel having rested his defence on the ground, that the accident was entirely owing to the want of ordinary care on the part of the plaintiff, and that · there was no negligence on the part of the defendants; the Judge left it to the jury to determine this question. Verdict for the plaintiff; and motion for a new trial, on the ground that the Judge ought to have told the jury, that, if the plaintiff contributed by his own negligence to the injury, the defendants were entitled to the verdict, though they might have been guilty of negligence. Held, the defendants were not entitled to a new trial, the issue on which alone they rested their defence having been left to the jury.2 So, in an action for damages by a collision between carriages, occasioned, as the declaration alleged, by the negligence of the defendant, in so driving his wagon past the horse and wagon of the plaintiff, which were standing on the public highway, that the wheels of his wagon struck against the plaintiff, &c.; the burden of disproving negligence on the part of the plaintiff rests on him, and the defendant has a right to claim an instruction to that effect to the jury; but the question of negligence is exclusively for the jury. And where the plaintiff, in his opening, adduced evidence to disprove negligence on his part, and the defendant met such proof with evidence conducing to show such negligence; the Court rightly charged the jury, that, if the plaintiff did not exercise

1 Clayards v. Dethick, 12 Ad. & El. N. S. 439.

2 Martin v. Great Northern, &c. 30 Eng. L. & Eq. 473.

reasonable care and prudence in leaving his horse unhitched and unattended, he could not recover; and also that with reference to that question, they might consider the character, disposition, and temper of the plaintiff's horse, and the manner in which he had been trained, as well as all the other circumstances of the transaction. Although admitted, that the horse was a spirited animal, the act of the plaintiff, in leaving him unfastened and unattended, is not, as matter of law, a want of ordinary care on his part; but the question of negligence is still for the jury.1

20. As has been already suggested, the wrong conduct of the plaintiff, relied upon as a defence, must in general be immediately connected with the act for which redress is sought; and, moreover, the parties concerned in the respective transactions must be the same, and so far exclusively, as not to occasion any divided responsibility on the part of the plaintiff to the defendant. Thus it is held no defence to an action of trespass, for entering a dwelling and carrying away goods, that the plaintiff kept a bawdy-house.2 So, in Indiana, under the former system of practice, the fact that a slaughter-house was a nuisance, and had injured the value of the defendant's property, could not be admitted in evidence, in an action of trespass for diverting water therefrom. So the defendant, to prevent the plaintiff's fowls from trespassing on his land, as they had done, spread poisoned food upon the land, having given the plaintiff previous notice that he should do so, and the fowls, coming afterwards upon the land, ate the food, in consequence of which some died. Held, that previous notice, in contradistinction to notice after the fact, was suf ficient; but that, notwithstanding such notice, the defendant was not justified in the use of the means he had employed, and was liable in damages. So evidence that the drivers of two coaches, on the same route, mutually attempted several times to intercept each other's progress, by "cutting each

1 Park v. O'Brien, 23 Conn. 339. 2 Love v. Moynehan, 16 Ill. 277.

8 Chenowith v. Hicks, 5 Ind. 224. Johnson v. Patterson, 14 Conn. 1.

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other off," is not sufficient to prove, that, in a subsequent collision on the same trip, they were both in fault.1 So, where the plaintiff, the defendant, and several others were parties to a written contract, by which they were together to engage in the removal of earth, from the land of the defendant to land of all the parties, for the purpose of raising and filling up the same; and, after proceeding in the execution thereof, the plaintiff, with the consent of the others, sold and conveyed his interest to the defendant, subject to the contract; and subsequently the proprietors continued the removal of the earth, and, in so doing, negligently undermined a hill on the plaintiff's land, and thereby caused a slide therefrom, which covered and injured other lands of the plaintiff; held, the fact of the plaintiff's having originally been a party to the contract did not preclude him from recovering, in case, for such injury. So, in an action of trespass against a sheriff for levying upon property, he must first show that the plaintiffs named in the execution were creditors, before he can defend, by showing that he made the levy in accordance with an execution against other parties, supposed to be the owners of the property, and that the present plaintiff was a fraudulent purchaser. So it has been held that the fact, that one man has personal property within the enclosure of another, does not authorize the former to enter the enclosure, for the purpose of taking such property. He should demand it of the owner of the land, and, if he refuse him permission to take it, such refusal would be evidence of a conversion, for which an action would lie. So, while it has been held, that, in an action for assault and battery, the preceding words, or imputations of the same kind as those which immediately led to the assault, if previously communicated to the defendant, may be offered in evidence by way of mitigation of damages;-that the inducement to the transaction, and all such particulars,

1 Munroe v. Leach. 7 Met. 274.

2 Gardner v. Heartt, 1 Denio, 466.

3 Cook v. Miller, 11 Ill. 610.

4 Roach v. Damron, 2 Humph. 425.

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