the collision of a runaway team of horses, that, as the pole stood at such a distance from the traveled portion of the highway as to be safe from collisions with teams under ordinary circumstances, there could be no recovery, although the pole was not strong enough to withstand such a collision: the accident of the running away of the horses, and not the weakness of the pole, was deemed the proximate cause of the damage.'

§ 73. Contributory Negligence of the Traveler.— The rule stated in the preceding section operates to exonerate the company where the proximate cause of the accident was the negligence of the traveler, and not that of the company in the erection of its poles or wires. The well-known general rule here is subject to some exceptions in some American jurisdictions—that if the negligence of the traveler materially contributes to the injury he cannot recover, since the law has no scales by which it can separate and weigh the relative fault of the parties and say how much of the damage was due to the fault of each. The rule, in its application to injuries sustained by travelers through coming in contact with obstructions in the highway is-stated in a leading case in its simplest form-that the traveler cannot recover damages if he could have avoided the accident by the exercise of reasonable care on his part. One who recklessly thrusts himself upon a known danger is guilty of contributory negligence. So, one who deliberately drives his

1 Allen v. Atlantic, etc. Tel. Co., 21 Hun (N. Y.), 22.

* Butterfield v. Forrester, 11 East, 60; s. c., 2 Thomp. Neg. 1104. For a discussion of the doctrine of contributory negligence in its application to injuries upon the highway, see 2 Thomp. Neg. 1197, et seq. 3 Butterfield v. Forrester, supra.

horse into a place of danger near an electric railroad track, with a full knowledge of the situation and danger, for the express purpose of testing the horse as to his disposition to become frightened, is guilty of such contributory negligence as will prevent a recovery, where the horse becomes frightened at a train and runs away.' The true inquiry here is whether, under all the circumstances of the case, the plaintiff or other person injured exercised ordinary or reasonable care-the two expressions being in a legal sense synonymous. Where the court charged the jury that if the position of the person killed by coming into collision with the wires of the defendant, was dangerous, owing to defendant's negligence alone, and he exercised the care of a prudent man, that was all that was required; that where one in such position, not having time to judge the best way of doing, selects a method not the best, the law would not impute negligence as readily as if he had time to choose; that another might have done differently, but the only question was what did care and prudence require, and did he do it, it was held that the instruction was correct. It has been held that the failure of a traveler to notice in the daytime an electric light wire on the sidewalk, over which she stumbled and fell, is

1 Cornell v. Detroit, etc. R. Co. (Mich.), 46 N. W. Rep. 791.

2 Pennsylvania Tel. Co. v. Varnau (Pa.), 15 Atl. Rep. 624. One can hardly understand the conception of the late territorial court of Colorado that the plaintiff's right to recover is not affected by his having contributed to his injury, unless he was in fault in so doing (Western Union Tel. Co. v. Eyser, 2 Col. T. 141); since contributory negligence is in itself fault. In a charge to the jury on the subject of the right of recovery for an injury sustained through the improper location of telephone poles in the public street with especial reference to the contributory negligence of the driver of the vehicle, see Sheffield v. Central Union Tel. Co., 36 Fed. Rep. 164.

not contributory negligence as a matter of law, and will not prevent her from recovering for the injuries from the company. The court, speaking through Mr. Justice Berkshire, say: "A small wire lying. along a sidewalk might very reasonably be overlooked by a passer-by who has no notice thereof, and the fact that it is overlooked does not necessarily indicate negligence. We cannot hold, as a question of law, that a person may not pass along a sidewalk cautiously and fail to observe a small wire lying along or across it; and then we can imagine many circumstances whereby the attention of the pedestrian might be attracted from the sidewalk which would be sufficient to divert the attention of any reasonably prudent person.

74. Contributory Negligence of Driver not Imputable to the Passenger.-The doctrine obtained for a time in England, and to some extent in this country, under which, where one person having, roughly speaking, the custody of the person of another, was guilty of contributory negligence whereby that other was injured, the negligence of the custodian was imputed to the person injured, and he was debarred from recovering damages, notwithstanding the negligence of the defendant; but this doctrine never met with full judicial and professional approval, and has now been thoroughly

2

1 Brush Electric Lighting Co. v. Kelley (Ind.), 9 Rail. & Corp. L. J. 135; s. C., 25 N. E. Rep. 812. The court cite: Barry v. Terkildsen, 72 Cal. 254; Hussey v. Ryan, 64 Md. 426; Jennings v. Van Schaick, 108 N. Y. 530; Kelly v. Blackstone, 147 Mass. 448; Noblesville, etc. Gas Co. v. Lehr, 124 Ind. 79. The conclusion of the court is also supported by Woods v. Boston, 121 Mass. 337. See also 2 Thomp. Neg. 1197.

2 Thorogood v. Bryan, 8 C. B. 114, 129; s. C., Thomp. Carr. 273; followed in Armstrong v. Lancashire, etc. R. Co., L. R. 10 Exch. 47.

overthrown, both in England and America.' Accordingly, it has been held, in an action where a married woman was injured by the fact that the buggy in which she was riding and in which her husband was driving came in contact with one of the defendant's telegraph poles planted in the street, that if the injury was occasioned solely by the driver's negligence, the defendant was not liable; but that if the driver's negligence only contributed to the injury, his negligence could not be imputed to plaintiff, so as to defeat her action, where defendant's negligence also directly contributed to it."

§ 75. hibited to Travel.-The Supreme Court of Louisiana has recently held that the erection of wires by a telephone and telegraph company along neutral ground in a street, in such a manner as to endanger occupants of vehicles, is negligence, although a city ordinance prohibits the use of such ground for vehicles. But this decision seems to be unsound. careless doing of an act which is forbidden by a valid statute or municipal ordinance is negligence per se; a traveler is, therefore, in such a case guilty

Poles Erected in Part of the Street Pro

The

1 Bennett v. New Jersey, etc. R. Co., 36 N. J. L. 225; Hay v. LeNeve, 2 Shaw Sc. App. 405; The Milam, 1 Lush. 388, 403; Waite v. Northeastern R. Co., El. Bl. & El. 728; Greenland v. Chaplin, 5 Exch. 243; Little v. Hackett, 116 U. S. 366; New York, etc. R. Co. v. Steinbrenner, 47 N. J. L. 161; Chapman v. New Haven R. Co., 19 N. Y. 341; Dyer v. Erie R. Co., 71 N. Y. 228; Transfer Co. v. Kelly, 36 Ohio St. 86; Wabash, etc. R. Co. v. Shacklet, 105 Ill. 364; Danville, etc. Turnp. Co. v. Stewart, 2 Met. (Ky.) 119; Louisville, etc. R. Co. v. Case, 9 Bush (Ky.), 728; Cuddy v. Horn, 46 Mich. 596.

2 Sheffield v. Central Union Tel. Co., 36 Fed. Rep. 164.

3 Wilson v. Great Southern Tel., etc. Co., 41 La. An. 1041; s. C., 6 South. Rep. 781.

4 Worster v. Proprietors, 16 Pick. (Mass.) 541; Heard v. Hall, Id. 457; Karle v. Kansas City, etc. R. Co., 55 Mo. 476; Correll v. Burlington, etc. R. Co., 38 Iowa, 120; Jetter v. New York, etc. R. Co., 2 Keyes (N. Y.),

of negligence as matter of law. It is not perceived upon what ground he can properly make his own negligence, or possibly his own wilful fault in driving where the law prohibits him from driving, the ground of an action for damages.

§ 76. Injuries from Improper Location of Poles. -It has been held under the statutes of Ohio, but the principle is no doubt of general application, that a telephone company must exercise reasonable care in the location of its poles so as not to incommode public travel, but need not so locate them as to provide against all possible injuries under extraordinary circumstances. Nor can such a company justify, under a license from the city, the location of a pole in such a place in the street, as makes it dangerous to public travel; since, as already explained, the city, by granting such a license, makes itself a wrong-doer;' and upon the question whether the pole was in fact so located as to be dangerous to public travel, the license from the city will not be conclusive, but the question will be submitted to a jury, provided there is evidence from which the jury could properly draw the inference that it was so located. It has been held that a telephone company is not liable for personal injuries resulting from a collision of a traveler with a telephone pole, in consequence of his horse becoming frightened and unmanageable, where the pole which was set within the limits of the highway, could not have been placed nearer the fence without the cross-arms encroaching upon private property, and was set with due care and in such a position as not

1Sheffield v. Central Union Tel. Co., 36 Fed. Rep. 164.

2 Ante, § 29.

3 Wolfe v. Erie Tel., etc. Co., 33 Fed. Rep. 320.