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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER XI.

NEGLIGENCE(a) .

I.—

The General Conception.

Omission contrasted with action as ground of liability.For acts and their results (within the limits expressed by the term “natural and probable consequences,” and discussed in a foregoing chapter, and subject to the grounds of justification and excuse which have also been discussed) the actor is, generally speaking, held answerable by law. For mere omission a man is not, generally speaking, held answerable. Not that the consequences or the moral gravity of an omission are necessarily less. One who refrains from stirring to help another may be, according to the circumstances, a man of common though no more than common good will and courage, a fool, a churl, a coward, or little better than a murderer. But, unless he is under some specific duty of action, his omission will not in any case be either an offence or a civil wrong. The law does not and cannot undertake to make men render active service to their neighbours at all times when a good or a brave man would do so(b) . Some already existing relation of duty must be established, which relation will be found in most cases, though not in all, to depend on a foregoing voluntary act of the party held liable. He was not in the first instance bound to do anything at all; but by some independent motion of his own he has given hostages, so to speak, to the law. Thus I am not compelled to be a parent; but if I am one, I must maintain my children. I am not compelled to employ servants; but if I do, I must answer for their conduct in the course of their employment. The widest rule of this kind is that which is developed in the law of Negligence. One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, “those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision(c) . The caution that is required is in proportion to the magnitude and the apparent imminence of the risk: and we shall see that for certain cases the policy of the law has been to lay down exceptionally strict and definite rules. While some acts and occupations are more obviously dangerous than others, there is hardly any kind of human action that may not, under some circumstances, be a source of some danger.General duty of caution in acts. Thus we arrive at the general rule that every one is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default(d) .

Overlapping of contract and tort. In some cases this ground of liability may co-exist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts. Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract(e) . The two duties are distinct, except so far as the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by a special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use(f) . “If a smith prick my horse with a nail, &c., I shall have my action upon the case against him, without any warranty by the smith to do it well. . . . . For it is the duty of every artificer to exercise his art rightly and truly as he ought”(g) . This overlapping of the regions of Contract and Tort gives rise to troublesome questions which we are not yet ready to discuss. They are dealt with in the concluding chapter of this book. Meanwhile we shall have to use for authority and illustration many cases where there was a co-existing duty ex contractu, or even where the duty actually enforced was of that kind. For the obligation of many contracts is, by usage and the nature of the case, not to perform something absolutely, but to use all reasonable skill and care to perform it. Putting aside the responsibilities of common carriers and innkeepers, which are peculiar, we have this state of things in most agreements for custody or conveyance, a railway company’s contract with a passenger for one. In such cases a total refusal or failure to perform the contract is rare. The kind of breach commonly complained of is want of due care in the course of performance. Now the same facts may admit of being also regarded as a wrong apart from the contract, or they may not. But in either case the questions, what was the measure of due care as between the defendant and the plaintiff, and whether such care was used, have to be dealt with on the same principles. In other words, negligence in performing a contract and negligence independent of contract create liability in different ways: but the authorities that determine for us what is meant by negligence are in the main applicable to both.

Definition of negligence. The general rule was thus stated by Baron Alderson: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”(h) . It was not necessary for him to state, but we have always to remember, that negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care. This, it will be observed, says nothing of the party’s state of mind, and rightly. Jurisprudence is not psychology, and law disregards many psychological distinctions not because lawyers are ignorant of their existence, but because for legal purposes it is impracticable or useless to regard them. Even if the terms were used by lawyers in a peculiar sense, there would be no need for apology; but the legal sense is the natural one. Negligence is the contrary of diligence, and no one describes diligence as a state of mind. The question for judges and juries is not what a man was thinking or not thinking about, expecting or not expecting, but whether his behaviour was or was not such as we demand of a prudent man under the given circumstances. Facts which were known to him, or by the use of appropriate diligence would have been known to a prudent man in his place, come into account as part of the circumstances. Even as to these the point of actual knowledge is a subordinate one as regards the theoretical foundation of liability. The question is not so much what a man of whom diligence was required actually thought of or perceived, as what would have been perceived by a man of ordinary sense who did think(i) . A man’s responsibility may be increased by his happening to be in possession of some material information beyond what he might be expected to have. But this is a rare case.

As matter of evidence and practice, proof of actual knowledge may be of great importance. If danger of a well understood kind has in fact been expressly brought to the defendant’s notice as the result of his conduct, and the express warning has been disregarded or rejected(j) , it is both easier and more convincing to prove this than to show in a general way what a prudent man in the defendant’s place ought to have known. In an extreme case reckless omission to use care, after notice of the risk, may be held, as matter of fact, to prove a mischievous intention: or, in the terms of Roman law, culpa lata may be equivalent to dolus. For purposes of civil liability it is seldom (if ever) necessary to decide this point.

The standard of duty does not vary with individual ability. We have assumed that the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man—the average prudent man, or, as our books rather affect to say, a reasonable man—standing in this or that man’s shoes(k) . This idea so pervades the mass of our authorities that it can be appreciated only by some familiarity with them. In the year 1837 it was formally and decisively enounced by the Court of Common Pleas(l) . The action was against an occupier who had built a rick of hay on the verge of his own land, in such a state that there was evident danger of fire, and left it there after repeated warning. The hayrick did heat, broke into flame, and set fire to buildings which in turn communicated the fire to the plaintiff’s cottages, and the cottages were destroyed. At the trial the jury were directed “that the question for them to consider was whether the fire had been occasioned by gross negligence on the part of the defendant,” and “that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.” A rule for a new trial was obtained “on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest(m) order of intelligence.” The Court unanimously declined to accede to this view. They declared that the care of a prudent man was the accustomed and the proper measure of duty. It had always been so laid down, and the alleged uncertainty of the rule had been found no obstacle to its application by juries. It is not for the Court to define a prudent man, but for the jury to say whether the defendant behaved like one. “Instead of saying that the liability for negligence should be coextensive with the judgment of each individual—which would be as variable as the length of the foot of each individual—we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”(n) . In our own time the same principle has been enforced in the Supreme Court of Massachusetts. “If a man’s conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation”(o) .

Diligence includes competence. It will be remembered that the general duty of diligence includes the particular duty of competence in cases where the matter taken in hand is of a sort requiring more than the knowledge or ability which any prudent man may be expected to have. The test is whether the defendant has done “all that any skilful person could reasonably be required to do in such a case”(p) . This is not an exception or extension, but a necessary application of the general rule. For a reasonable man will know the bounds of his competence, and will not intermeddle (save in extraordinary emergency) where he is not competent(q) .

II.—

Evidence of Negligence.

Negligence a question of mixed fact and law. Due care and caution, as we have seen, is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thinks can be set down to his neighbour’s default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles; it is difficult to sum up their results, and not always easy to reconcile them.

The tendency of modern rulings of Courts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established.

Burden of proof. Where there is no contract between the parties, the burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant’s negligence; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. “Where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury”(r) .

Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing(s) . Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages: and before one can complain of another, he must show wherein care was wanting. “When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale”(t) . It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train(u) . If the carriage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do.

Thus in Cotton v. Wood(v) the plaintiff’s wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus(x) . His servants, on the plaintiff’s own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses’ feet at that particular moment. Again if a horse being ridden(y) or driven(z) in an ordinary manner runs away without apparent cause, and in spite of the rider’s or driver’s efforts trespasses on the footway and there does damage, this is not evidence of negligence. The plaintiff ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. “To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork”(a) .

Sometimes it is said that the burden of proof is on the plaintiff to show that he was himself using due care, and it has been attempted to make this supposed principle a guide to the result to be arrived at in cases where the defence of contributory negligence is set up. This view seems to be rather prevalent in America(b) , but in the present writer’s opinion it is unsound. The current of English authority is against it, and it has been distinctly rejected in the House of Lords(c) . What we consider to be the true view of contributory negligence will be presently explained.

Where there is contract or undertaking. This general principle has to be modified where there is a relation of contract between the parties, and (it should seem) when there is a personal undertaking without a contract. A coach runs against a cart; the cart is damaged, the coach is upset, and a passenger in the coach is hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner: “You promised for gain and reward to bring me safely to my journey’s end, so far as reasonable care and skill could attain it. Here am I thrown out on the road with a broken head. Your contract is not performed; it is for you to show that the misadventure is due to a cause for which you are not answerable”(d) .

When a railway train runs off the line, or runs into another train, both permanent way and carriages, or both trains (as the case may be) being under the same company’s control, these facts, if unexplained, are as between the company and a passenger evidence of negligence(e) .

In like manner, if a man has undertaken, whether for reward or not, to do something requiring special skill, he may fairly be called on, if things go wrong, to prove his competence: though if he is a competent man, the mere fact of a mishap (being of a kind that even a competent person is exposed to) would of itself be no evidence of negligence. We shall see later that, where special duties of safe keeping or repair are imposed by the policy of the law, the fact of an accident happening is held, in the same manner, to cast the burden of proving diligence on the person who is answerable for it, or in other words raises a presumption of negligence. This is said without prejudice to the yet stricter rule of liability that holds in certain cases.

Things within defendant’s control. Again there is a presumption of negligence when the cause of the mischief was apparently under the control of the defendant or his servants. The rule was declared by the Exchequer Chamber in 1865(f) , in these terms:—

“There must be reasonable evidence of negligence.

“But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Therefore if I am lawfully and as of right(g) passing in a place where people are handling heavy goods, and goods being lowered by a crane fall upon me and knock me down, this is evidence of negligence against the employer of the men who were working the crane(h) .

Common course of affairs judicially noticed. The Court will take judicial notice of what happens in the ordinary course of things, at all events to the extent of using their knowledge of the common affairs of life to complete or correct what is stated by witnesses. Judges do not affect, for example, to be ignorant that the slipping of one passenger out of several thousand in hurrying up the stairs of a railway station is not an event so much out of the run of pure accidents as to throw suspicion on the safety of the staircase(i) .

On evidence sufficient in law, question is for jury. When we have once got something more than an ambiguously balanced state of facts; when the evidence, if believed, is less consistent with diligence than with negligence on the defendant’s part, or shows the non-performance of a specific positive duty laid on him by statute, contract, or otherwise; then the judgment whether the plaintiff has suffered by the defendant’s negligence is a judgment of fact, and on a trial by jury must be left as such in the hands of the jury(j) . The question of negligence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them(k) . It is true that the rules as to remoteness of damage set some bounds to the connexion of the defendant’s negligence with the plaintiff’s loss(l) . But even in this respect considerable latitude has been allowed(m) . Railway accidents have for the last forty years or more been the most frequent occasions of defining, or attempting to define, the frontier between the province of the jury and that of the Court.

Recent railway cases on level crossings and “invitation to alight.” Two considerable and well marked groups of cases stand out from the rest. One set may be broadly described as level crossing cases, and culminated in North Eastern Railway Company v. Wanless, decided by the House of Lords in 1874(n) ; the other may still more roughly (but in a manner which readers familiar with the reports will at once understand) be called “invitation to alight” cases. These are now governed by Bridges v. North London Railway Company(o) , another decision of the House of Lords which followed closely on Wanless’s case. In neither of these cases did the House of Lords intend to lay down any new rule, nor any exceptional rule as regards railway companies: yet it was found needful a few years later to restate the general principle which had been supposed to be impugned. This was done in Metropolitan Railway Company v. Jackson(p) .

Explanation in Metr. R. Co. v. Jackson. “The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever”(q) .

“On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It is not, however, in many cases practicable completely to sever the law from the facts.

“But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn”(r) .

The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate consequence of any proved negligence of the defendants; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its “natural and probable” consequence(s) . As between the plaintiff and the defendant, however, evidence of negligence which cannot be reasonably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree(t) .

The “level crossing” type of cases. In the “level crossing” group of cases we have some one crossing a railway at a place made and provided by the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing(u) , or that there was something in their arrangements which made it impracticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, will not do. “Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury”(v) . What may reasonably be held to amount to such proof cannot be laid down in general terms. “You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do”(x) . But unless the plaintiff’s own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all(y) , the tendency of modern authority is to leave the matter very much at large for the jury. In Dublin, Wicklow and Wexford Railway Co. v. Slattery(z) , the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff’s husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one(a) .

The “invitation to alight” group. In the other group, which we have called “invitation to alight” cases, the nature of the facts is, if anything, less favourable to the defendant. A train stopping at a station overshoots the platform so that the front carriages stop at a place more or less inconvenient, or it may be dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place(b) , or else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by backing the train(c) . It is a question of fact whether under the particular circumstances the company’s servants were reasonably diligent for the accommodation of the passengers(d) , and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all(e) .

Complications with contributory negligence, &c. All these cases are apt to be complicated with issues of contributory negligence and other similar though not identical questions. We shall advert to these presently. It will be convenient now to take a case outside these particular types, and free from their complications, in which the difficulty of deciding what is “evidence of negligence” is illustrated. Such an one is Smith v. London and South Western Railway Company(f) .Other illustrations of “evidence of negligence”: Smith v. L. & S. W. R. Co. The facts are, in this country and climate, of an exceptional kind: but the case is interesting because, though distinctly within the line at which the freedom of the jury ceases, that line is shown by the tone and language of the judgments in both the Common Pleas and the Exchequer Chamber to be nearly approached. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant company’s locomotives. The material elements of fact were the following.

Hot dry weather had prevailed for some time, and at the time of the accident a strong S.E. wind was blowing.

About a fortnight earlier grass had been cut by the defendants’ servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trimmings had, on the morning of the fire(g) , been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable.

Next the hedge there was a stubble field; beyond that a road; on the other side of the road a cottage belonging to the plaintiff, 200 yards in all distant from the railway.

Two trains passed, and immediately or shortly afterwards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and consumed the plaintiff’s cottage.

There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them.

The jury found for the plaintiff; and it was held (though with some difficulty)(h) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. “The more likely the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it”(i) . Thus there was evidence enough (though it seems only just enough) to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution. On the other hand the happening of an accident in extraordinary circumstances, from a cause not apparent, and in a manner that could not have been prevented by any ordinary measures of precaution, is not of itself any evidence of negligence(k) . And a staircase which has been used by many thousand persons without accident cannot be pronounced dangerous and defective merely because the plaintiff has slipped on it, and somebody can be found to suggest improvements(l) .

No precise general rule can be given. Illustrations might be largely multiplied, and may be found in abundance in Mr. Horace Smith’s, Mr. Campbell’s, or Mr. Beven’s monograph, or by means of the citations and discussions in the leading cases themselves. Enough has been said to show that by the nature of the problem no general formula can be laid down except in some such purposely vague terms as were used in Scott v. London Dock Co.(m) .

Due care varies as apparent risk: application of this to accidents through personal infirmity. We have said that the amount of caution required of a citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of danger to others, we are entitled to assume, in the absence of anything to show the contrary, that they have the full use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding “in a country village, where few passengers are,” he is free from criminal liability at all events, provided “he calls out to all people to have a care”(n) . Now some passer-by may be deaf, and may suffer by not hearing the warning. That will be his misfortune, and may be unaccompanied by any imprudence on his part; but it cannot be set down to the fault of the workman. If the workman had no particular reason to suppose that the next passer-by would be deaf, he was bound only to such caution as suffices for those who have ears to hear. The same rule must hold if a deaf man is run over for want of hearing a shout or a whistle(o) , or a blind man for want of seeing a light, or if a colour-blind man, being unable to make out a red danger flag, gets in the line of fire of rifle or artillery practice; or if in any of these circumstances a child of tender years, or an idiot, suffers through mere ignorance of the meaning which the warning sight or sound conveys to a grown man with his wits about him. And this is not because there is any fault in the person harmed, for there may well be no fault at all. Whatever we think, or a jury might think, of a blind man walking alone, it can hardly be deemed inconsistent with common prudence for a deaf man to do so; and it is known that colour-blind people, and those with whom they live, often remain ignorant of their failing until it is disclosed by exact observation or by some accident. It is not that the law censures a deaf man for not hearing, or a colour-blind one for not perceiving a red flag. The normal measure of the caution required from a lawful man must be fixed with regard to other men’s normal powers of taking care of themselves, and abnormal infirmity can make a difference only when it is shown that in the particular case it was apparent.

Distinction where the person acting has notice of special danger to an infirm or helpless person. On the other hand it seems clear that greater care is required of us when it does appear that we are dealing with persons of less than ordinary faculty. Thus if a man driving sees that a blind man, an aged man, or a cripple is crossing the road ahead, he must govern his course and speed accordingly. He will not discharge himself, in the event of a mishap, merely by showing that a young and active man with good sight would have come to no harm. In like manner if one sees a child, or other person manifestly incapable of normal discretion, exposed to risk from one’s action, it seems that proportionate care is required; and it further seems on principle immaterial that the child would not be there but for the carelessness of some parent or guardian or his servant. These propositions are not supported by any distinct authority in our law that I am aware of(p) . But they seem to follow from admitted principles, and to throw some light on questions which arise under the head of contributory negligence.

III.—

Contributory Negligence.

Actionable negligence must be proximate cause of harm: where plaintiff’s own negligence is immediate cause, no remedy. In order that a man’s negligence may entitle another to a remedy against him, that other must have suffered harm whereof this negligence is a proximate cause. Now I may be negligent, and my negligence may be the occasion of some one suffering harm, and yet the immediate cause of the damage may be not my want of care but his own. Had I been careful to begin with, he would not have been in danger; but had he, being so put in danger, used reasonable care for his own safety or that of his property, the damage would still not have happened. Thus my original negligence is a comparatively remote cause of the harm, and as things turn out the proximate cause is the sufferer’s own fault, or rather (since a man is under no positive duty to be careful in his own interest) he cannot ascribe it to the fault of another. In a state of facts answering this general description the person harmed is by the rule of the common law not entitled to any remedy. He is said to be “guilty of contributory negligence;” a phrase well established in our forensic usage, though not free from objection. It rather suggests, as the ground of the doctrine, that a man who does not take ordinary care for his own safety is to be in a manner punished for his carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one, nor supported by modern authority, and it is already distinctly rejected by writers of no small weight(q) . And it stands ill with the common practice of our courts, founded on constant experience of the way in which this question presents itself in real life. “The received and usual way of directing a jury . . . is to say that if the plaintiff could, by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant’s negligence, he cannot recover”(r) . That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or could not have happened; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant’s. Again the penal theory of contributory negligence fails to account for the accepted qualification of the rule, “namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him”(s) . And in the latest leading case, of which there will be more to say, the criterion of what was the proximate cause of the injury is adopted throughout(t) .

The element of truth which the penal theory, as I have called it, presents in a distorted form, is that the rule is not merely a logical deduction, but is founded in public utility. “The ultimate justification of the rule is in reasons of policy, viz. the desire to prevent accidents by inducing each member of the community to act up to the standard of due care set by the law. If he does not, he is deprived of the assistance of the law”(u) .

Tuff v. Warman. The leading case which settled the doctrine in its modern form is Tuff v. Warman(x) . The action was against the pilot of a steamer in the Thames for running down the plaintiff’s barge; the plaintiff’s own evidence showed that there was no look-out on the barge; as to the conduct of the steamer the evidence was conflicting, but according to the plaintiff’s witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the want of a look-out was negligence on the part of the plaintiff, and if so, whether it “directly contributed to the accident.” This was objected to as too favourable to the plaintiff, but was upheld both in the full Court of Common Pleas and in the Exchequer Chamber. In the considered judgment on appeal(y) it is said that the proper question for the jury 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 and 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.” But negligence will not disentitle the plaintiff to recover, unless it be such that without it the harm complained of would(z) 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.”

Radley v. L. & N. W. R. Co. In Radley v. London and North Western Railway Co.(a) , this doctrine received a striking confirmation.

The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs’ men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those previously left on the siding. Some resistance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs’ servants ought to have moved the first set of trucks to a safe place, or at any rate not have left the piled-up truck in a dangerous position. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident “happened by the negligence of the defendants’ servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants’ servants.”

On these facts and under this direction the jury found that there was contributory negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer(b) held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber(c) held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of Lords it was held(d) that there was a question of fact for the jury, but the law had not been sufficiently stated to them. They had not been clearly informed, as they should have been, that not every negligence on the part of the plaintiff which in any degree contributes to the mischief will bar him of his remedy, but only such negligence that the defendant could not by the exercise of ordinary care have avoided the result.

“It is true that in part of his summing-up, the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

“In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. The substantial defect of the learned judge’s charge is that that question was never put to the jury”(e) .

“Proximate” or “decisive” cause? This leaves no doubt that the true ground of contributory negligence being a bar to recovery is that it is the proximate cause of the mischief; and negligence on the plaintiff’s part which is only part of the inducing causes(f) will not disable him. I say “the proximate cause,” considering the term as now established by usage and authority. But I would still suggest, as I did in the first edition, that “decisive” might convey the meaning more exactly. For if the defendant’s original negligence was so far remote from the plaintiff’s damage as not to be part at least of its “proximate cause” within the more general meaning of that term, the plaintiff would not have any case at all, and the question of contributory negligence could not arise. We shall immediately see, moreover, that independent negligent acts of A. and B. may both be proximate in respect of harm suffered by Z., though either of them, if committed by Z. himself, would have prevented him from having any remedy for the other. Thus it appears that the term “proximate” is not used in precisely the same sense in fixing a negligent defendant’s liability and a negligent plaintiff’s disability.

The plaintiff’s negligence, if it is to disable him, has to be somehow more proximate than the defendant’s. It seems dangerously ambiguous to use “proximate” in a special emphatic sense without further or otherwise marking the difference. If we said “decisive” we should at any rate avoid this danger.

Self-created disability to avoid consequences of another’s negligence. It would seem that a person who has by his own act or default deprived himself of ordinary ability to avoid the consequences of another’s negligence can be in no better position than if, having such ability, he had failed to avoid them; unless, indeed, the other has notice of his inability in time to use care appropriate to the emergency; in which case the failure to use that care is the decisive negligence. A. and B. are driving in opposite directions on the same road on a dark night. B. is driving at a dangerous speed, and A. is asleep, but B. cannot see that he is asleep. Suppose that A., had he been awake, might have avoided a collision by ordinary care notwithstanding B.’s negligence. Can A. be heard to say that there is no contributory negligence on his part because he was asleep? It seems not. Suppose, on the other hand, that the same thing takes place by daylight or on a fine moonlight night, so that B. would with common care and attention perceive A.’s condition. Here B. would be bound, it seems, to use special caution no less than if A. had been disabled, say by a sudden paralytic stroke, without default of his own. So if a man meets a runaway horse, he cannot tell whether it is loose by negligence or by inevitable accident, nor can this make any difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required(g) .

Earlier illustrations: Davies v. Mann. Cases earlier than Tuff v. Warman(h) are now material only as illustrations. A celebrated one is the “donkey case,” Davies v. Mann(i) . There the plaintiff had turned his ass loose in a highway with its forefeet fettered, and it was run over by the defendant’s waggon, going at “a smartish pace.” It was held a proper direction to the jury that, whatever they thought of the plaintiff’s conduct, he was still entitled to his remedy if the accident might have been avoided by the exercise of ordinary care on the part of the driver. Otherwise “a man might justify the driving over goods left on 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”(j) . With this may be compared the not much later case of Mayor of Colchester v. Brooke(k) , where it was laid down (among many other matters) that if a ship runs on a bed of oysters in a river, and could with due care and skill have passed clear of them, the fact of the oyster-bed being a nuisance to the navigation does not afford an excuse. The facts of Davies v. Mann suggest many speculative variations, and the decision has been much and not always wisely discussed in America, though uniformly followed in this country(l) .

Butterfield v. Forrester.Butterfield v. Forrester(m) is a good example of obvious fault on both sides, where the plaintiff’s damage was immediately due to his own want of care. The defendant had put up a pole across a public thoroughfare in Derby, which he had no right to do. The plaintiff was riding that way at eight o’clock in the evening in August, when dusk was coming on, but the obstruction was still visible a hundred yards off: he was riding violently, came against the pole, and fell with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could, they were to find for the defendant; and they did so. The judge’s direction was affirmed on motion for a new trial. “One person being in fault will not dispense with another’s using ordinary care for himself.” Here it can hardly be said that the position of the pole across the road was not a proximate cause of the fall. But it was not the whole proximate cause. The other and decisive cause which concurred was the plaintiff’s failure to see and avoid the pole in his way.

On the whole, then, if the plaintiff’s “fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong”(n) . On the other hand, if the defendant’s fault has been the proximate cause he is not excused merely by showing that the plaintiff’s fault at some earlier stage created the opportunity for the fault which was that cause(o) . If it is not possible to say whether the plaintiff’s or the defendant’s negligence were the proximate (or decisive) cause of the damage, it may be said that the plaintiff cannot succeed because he has failed to prove that he has been injured by the defendant’s negligence(p) . On the other hand it might be suggested that, since contributory negligence is a matter of defence of which the burden of proof is on the defendant(q) , the defendant would in such a case have failed to make out his defence, and the plaintiff, having proved that the defendant’s negligence was a proximate cause if not the whole proximate cause of his damage, would still be entitled to succeed. The defendant must allege and prove not merely that the plaintiff was negligent, but that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant’s negligence(r) . It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common law, whether reasonably or not(s) , has made no provision for apportioning damages in such cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that “hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are simultaneous and those where they are successive. In regard to the former class, such as Dublin, Wicklow & Wexford Ry. Co. v. Slattery(t) , or the case of two persons colliding at a street corner, the rule is, that if the plaintiff could by the exercise of ordinary care have avoided the accident he cannot recover. In regard to the latter class of cases, such as Davies v. Mann(u) and Radley v. L. & N. W. Ry. Co.(x) , the rule may be stated thus: that he who last has an opportunity of avoiding the accident, notwithstanding the negligence of the other, is solely responsible. And the ground of both rules is the same: that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury”(y) .

Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. “It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or at all events not apart from B.” Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A. to answer to Z.: “You were not injured by my negligence at all, but only and wholly by B.’s.” It seems to be a question of fact rather than of law what respective degrees of connexion, in kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arrived at, it is now quite clear that Z. can sue both A. and B.(z) .

The exploded doctrine of “identification.” In a case now overruled, a different doctrine was set up which, although never willingly received and seldom acted on, remained of more or less authority for nearly forty years. The supposed rule was that if A. is travelling in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.’s servants, and A. is injured in a collision with another vehicle belonging to Z., and under the control of Z.’s servants, which collision is caused partly by the negligence of B.’s servants and partly by that of Z.’s servants, A. cannot recover against Z. The passenger, it was said, must be considered as having in some sense “identified himself” with the vehicle in which he has chosen to travel, so that for the purpose of complaining of any outsider’s negligence he is not in any better position than the person who has the actual control(a) . It is very difficult to see what this supposed “identification” really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to be answerable for the negligence of the driver, guard, conductor, master, or whoever the person in charge may be. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Yet the eminent judges(b) who invented “identification” must have meant something. They would seem to have assumed, rather than concluded, that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant’s negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled—of course within the limits set by the general rules as to remoteness of damage—to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage.

The phrase “contributory negligence of a third person,” which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing him harm by negligence, may prove if he can that not his negligence, but wholly and only John’s, harmed Andrew. It is useless for him to show that John’s negligence was “contributory” to the harm, except so far as evidence which proved this, though failing to prove more, might practically tend to reduce the damages.

It is impossible to lay down rules for determining whether harm has been caused by A.’s and B.’s negligence together, or by A.’s or B.’s alone. The question is essentially one of fact. There is no reason, however, why joint negligence should not be successive as well as simultaneous, and there is some authority to show that it may be. A wrongful or negligent voluntary act of Peter may create a state of things giving an opportunity for another wrongful or negligent act of John, as well as for pure accidents. If harm is then caused by John’s act, which act is of a kind that Peter might have reasonably foreseen, Peter and John may both be liable; and this whether John’s act be wilful or not, for many kinds of negligent and wilfully wrongful acts are unhappily common, and a prudent man cannot shut his eyes to the probability that somebody will commit them if temptation is put in the way. One is not entitled to make obvious occasions for negligence. A. leaves the flap of a cellar in an insecure position on a highway where all manner of persons, adult and infant, wise and foolish, are accustomed to pass. B. in carelessly passing, or playing with the flap, brings it down on himself, or on C. In the former case B. has suffered from his own negligence and cannot sue A. In the latter B. is liable to C. but it may well be that a prudent man in A.’s place would have foreseen and guarded against the risk of a thing so left exposed in a public place being meddled with by some careless person, and if a jury is of that opinion A. may also be liable to C.(c) . Where A. placed a dangerous obstruction in a road, and it was removed by some unexplained act of an unknown third person to another part of the same road where Z., a person lawfully using the road, came against it in the dark and was injured, A. was held liable to Z., though there was nothing to show whether the third person’s act was or was not lawful or done for a lawful purpose(d) .

Accidents to children in custody of adult. Another special class of cases requires consideration. If A. is a child of tender years (or other person incapable of taking ordinary care of himself), but in the custody of M., an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M.(e) , Z. will not be liable to A. if M.’s negligence alone was the proximate cause of the mischief. Therefore if M. could, by such reasonable diligence as is commonly expected of persons having the care of young children, have avoided the consequences of Z.’s negligence, A. is not entitled to sue Z.: and this not because M.’s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.’s negligence, and not something else for which Z. is not answerable and which Z. had no reason to anticipate, should be the proximate cause.

Children, &c., unattended. Now take the case of a child not old enough to use ordinary care for its own safety, which by the carelessness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian make any difference to the legal result? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant’s duty can be measured by his notice of special risk and his means of avoiding it; there is no reason for making it vary with the diligence or negligence of a third person in giving occasion for the risk to exist. If the defendant is so negligent that an adult in the plaintiff’s position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff’s helplessness, and fails to use such special precaution as is reasonably possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plaintiff to be incapable of taking care of himself(f) , and has used such diligence as would be sufficient towards an adult; or if, being aware of the danger, he did use such additional caution as he reasonably could; or if the facts were such that no additional caution was practicable, and there is no evidence of negligence according to the ordinary standard(g) , then the defendant is not liable.

No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone(h) . In America there have been such decisions in Massachusetts(i) , New York, and elsewhere: “but there are as many decisions to the contrary”(j) : and it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries they are right.

Child v. Hearn. In one peculiar case(k) the now exploded doctrine of “identification”(l) was brought in, gratuitously as it would seem. The plaintiff was a platelayer working on a railway; the railway company was by statute bound to maintain a fence to prevent animals(m) from straying off the adjoining land; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep out pigs(n) . Some pigs of the defendant’s found their way on to the line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff’s case appears to be bad on one or both of two grounds; there was no proof of actual negligence on the defendant’s part, and even if his common-law duty to fence was not altogether superseded, as regards that boundary, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their duty; and also the damage was too remote(o) . But the ground actually taken was “that the servant can be in no better position than the master when he is using the master’s property for the master’s purposes,” or “the plaintiff is identified with the land which he was using for his own convenience.” This ground would now clearly be untenable.

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”(q) ; 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(s) , the judicium rusticum is expressly preserved in the Admiralty Division.

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 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) .

No duty to anticipate negligence of others. One 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 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 fellow-men 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 another’s default, makes an active choice between them. The principle applied is not dissimilar: it is not necessarily and of itself contributory negligence to do something which, apart from the state of things due to the defendant’s negligence, would be imprudent.

Clayards v. Dethick. The earliest case where this point is distinctly raised and treated by a full Court is Clayards v. Dethick(a) . The plaintiff was a cab-owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defendant was present at that time(b) . The jury were directed “that it could not be the plaintiff’s duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous: that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger: though if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained.” This direction was approved. Whether the plaintiff had suffered by the defendants’ negligence, or by his own rash action, was a matter of fact and of degree properly left to the jury: “the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.” The decision has been adversely criticised by Lord Bramwell, but principle and authority seem on the whole to support it(c) .

One or two of the railway cases grouped for practical purposes under the catch-word “invitation to alight” have been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where he is (though an unsafe or unfit one) he will not have time to alight at all, he may be justified in taking the risk of alighting as best he can at that place(d) ; notwithstanding that he might, by declining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense(e) .

Doctrine of New York Courts. There has been a line of cases of this class in the State of New York, where a view is taken less favourable to the plaintiff than the rule of Clayards v. Dethick. If a train fails to stop, and only slackens speed, at a station where it is timed to stop, and a passenger alights from it while in motion at the invitation of the company’s servants(f) , the matter is for the jury; so if a train does not stop a reasonable time for passengers to alight, and starts while one is alighting(g) . Otherwise it is held that the passenger alights at his own risk. If he wants to hold the company liable he must go on to the next station and sue for the resulting damage(h) .

On the other hand, where the defendant’s negligence has put the plaintiff in a situation of imminent peril, the plaintiff may hold the defendant liable for the natural consequences of action taken on the first alarm, though such action may turn out to have been unnecessary(i) . It is also held that the running of even an obvious and great risk in order to save human life may be justified, as against those by whose default that life is put in peril(k) . And this seems just, for a contrary doctrine would have the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some ablebodied person should expose himself to the same danger to effect a rescue.

Separation of law and fact in United States. American jurisprudence is exceedingly rich in illustrations of the questions discussed in this chapter, and American cases are constantly, and sometimes very freely, cited and even judicially reviewed(l) in our courts. It may therefore be useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of “mixed law and fact.” I refer to those States where the judge is forbidden by statute (in some cases by the Constitution of the State)(m) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the Court would have different legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiff or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the Court as the proper instructions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in this country, and it is a matter of great importance, where an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a Court to lay down as matter of law that particular acts are or are not contributory negligence(n) . Probably the common American doctrine that the plaintiff has to prove, as a sort of preliminary issue, that he was in the exercise of due care, has its origin in this practice. It is not necessary or proper for an English lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things hardly intelligible, and perhaps even suppose the substantive differences between English and American opinion upon points of pure law to be greater than they really are.

[(a) ]Those who seek fuller information on the subject of this chapter may find it in Mr. Thomas Beven’s exhaustive and scholarly monograph (“Principles of the Law of Negligence,” London, 1889).

[(b) ]See Note M. to the Indian Penal Code as originally framed by the Commissioners. Yet attempts of this kind have been made in one or two recent Continental proposals for the improvement of criminal law.

[(c) ]Lord Blackburn, 3 App. Ca. at p. 1206.

[(d) ]Cp. per Brett M. R., Heaven v. Pender (1883) 11 Q. B. Div. at p. 507.

[(e) ]This appears to be the substance of the rule intended to be laid down by Brett M. R. in Heaven v. Pender (1883) 11 Q. B. D. at pp. 507—510; his judgment was however understood by the other members of the Court (Cotton and Bowen L.JJ.) as formulating some wider rule to which they could not assent. The case itself comes under the special rules defining the duty of occupiers (see Chap. XII. below). And, so far as the judgment of Brett M. R. purported to exhibit those rules as a simple deduction from the general rule as to negligence, it is submitted that the dissent of the Lords Justices was well founded. And see Beven on Negligence, 63.

[(f) ]Cp. the present writer’s “Principles of Contract,” p. 138, 6th ed., and Prof. Ames’s articles, “The History of Assumpsit,” in Harv. Law. Rev. ii. 1, 53.

[(g) ]F. N. B. 94 D. As to the assumption of special skill being a material element, cp. Shiells v. Blackburne (1789) 2 H. Bl. 158, 2 R. R. 750; where “gross negligence” appears to mean merely actionable negligence.

[(h) ]Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. at p. 784, 25 L. J. Ex. at p. 213; adopted by Brett J. in Smith v. L. & S. W. R. Co. (1870) L. R. 5 C. P. at p. 102.

[(i) ]Brett M. R., 11 Q. B. Div. 508.

[(j) ]As in Vaughan v. Menlove (1837) 3 Bing. N. C. 468, where the defendant, after being warned that his haystack was likely to take fire, said he would chance it (pp. 471, 477).

[(k) ]Compare the Aristotelian use of ὁ φρόνιμος or ὁ σπουδαῖος in determining the standard of moral duty.

[(l) ]Vaughan v. Menlove (1837) 3 Bing. N. C. 468.

[(m) ]This misrepresents the rule of law: not the highest intelligence, but intelligence not below the average prudent man’s, being required.

[(n) ]Tindal C. J., 3 Bing. N. C. at p. 475.

[(o) ]Commonwealth v. Pierce (1884) 138 Mass. 165, 52 Am. Rep. 264, per Holmes J. See too per Bayley J. in Jones v. Bird (1822) 5 B. & A. at pp. 845-6.

[(p) ]Bayley J., 5 B. & A. at p. 846.

[(q) ]See p. 25, above.

[(r) ]Williams J. in Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129; Cotton v. Wood (1860) 8 C. B. N. S. 568, 29 L. J. C. P. 333; Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41.

[(s) ]Wakelin v. L. & S. W. R. Co., last note.

[(t) ]Erle C. J., Cotton v. Wood, note (r).

[(u) ]Lord Halsbury, 12 App. Ca. at p. 45.

[(v) ](1860) 8 C. B. N. S. 568, 29 L. J. C. P. 333, note (r) above.

[(x) ]It would be convenient if one could in these running-down cases on land personify the vehicle, like a ship.

[(y) ]Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129.

[(z) ]Manzoni v. Douglas (1880) 6 Q. B. D. 145, 50 L. J. Q. B. 289, where it was unsuccessfully attempted to shake the authority of Hammack v. White. The cases relied on for that purpose belong to a special class.

[(a) ]Lindley J., 6 Q. B. D. at p. 153.

[(b) ]E. g. Murphy v. Deane, 101 Mass. 455.

[(c) ]Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41, 47, 51, 56 L. J. Q. B. 229, per Lord Watson and Lord Fitzgerald.

[(d) ]In other words (to anticipate part of a special discussion) the obligation does not become greater if we regard the liability as ex delicto instead of ex contractu; but neither does it become less.

[(e) ]Carpue v. London & Brighton R. Co. (1844) 5 Q. B. 747, 751, 13 L. J. Q. B. 138; Skinner v. L. B. & S. C. R. Co. (1850) 5 Ex. 787.

[(f) ]Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220.

[(g) ]That is, not merely by the defendant’s licence, as will be explained later.

[(h) ]3 H. & C. 596, Crompton, Byles, Blackburn, Keating JJ., diss. Erle C. J. and Mellor J.; but no dissenting judgment was delivered, nor does the precise ground of dissent appear.

[(i) ]Crafter v. Metrop. R. Co. (1866) L. R. 1 C. P. 300, 35 L. J. C. P. 132.

[(j) ]This is well put in the judgment in M‘Cully v. Clark (Pennsylvania, 1861) Bigelow L. C. 559.

[(k) ]Gardner v. Michigan Central R. R. (1893) 150 U. S. 349, 361.

[(l) ]Metrop. R. Co. v. Jackson (1877) 3 App. Ca. 193, 47 L. J. C. P. 303.

[(m) ]See Williams v. G. W. R. Co. (1874) L. R. 9 Ex. 157, 43 L. J. Ex. 105, supra, p. 38. Cp. per Lord Halsbury, 12 App. Ca. at p. 43.

[(n) ]L. R. 7 H. L. 12, 43 L. J. Q. B. 185.

[(o) ]L. R. 7 H. L. 213, 43 L. J. Q. B. 151 (1873-4.)

[(p) ]3 App. Ca. 193, 47 L. J. C. P. 303 (1877).

[(q) ]Lord Cairns, at p. 197. Strictly the jurors have to say not whether negligence ought to be inferred, but whether, as reasonable men, they do infer it.

[(r) ]Lord Blackburn, at p. 207. Cp. Ryder v. Wombwell (1868), in Ex. Ch., L. R. 4 Ex. 32, 38 L. J. Ex. 8, which Lord Blackburn goes on to cite with approval.

[(s) ]See pp. 32, 36, above.

[(t) ]Cp. Pounder v. N. E. R. Co., ’92, 1 Q. B. 385, 61 L. J. Q. B. 136 (plaintiff assaulted by persons who had crowded in), and Cobb v. G. W. R. Co. ’93, 1 Q. B. 459, 62 L. J. Q. B. 335, 4 R. 283, C. A.

[(u) ]As in Wanless’s case, L. R. 7 H. L. 12, 43 L. J. Q. B. 185, where the gates (intended primarily for the protection of carriage traffic) were left open when they ought not to have been, so that the plaintiff was thrown off his guard.

[(v) ]Lord Watson, Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41, 47, 56 L. J. Q. B. 229.

[(x) ]Bowen L. J., Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. at p. 76.

[(y) ]Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. 70, 53 L. J. Q. B. 58: a case which perhaps belongs properly to the head of contributory negligence, of which more presently. Only the circumstance of daylight seems to distinguish this from Slatter’s case (next note).

[(z) ]3 App. Ca. 1155. Nearly all the modern cases on “evidence of negligence” were cited in the argument (p. 1161). Observe that the question of the verdict being against the weight of evidence was not open (p. 1162).

[(a) ]The majority consisted of Lord Cairns (who thought the verdict could not have stood if the accident had happened by daylight), Lord Penzance, Lord O’Hagan, Lord Selborne, and Lord Gordon; the minority of Lord Hatherley, Lord Coleridge, and Lord Blackburn. Ellis v. G. W. R. Co. (Ex. Ch. 1874) L. R. 9 C. P. 551, 43 L. J. C. P. 304, does not seem consistent with this decision; there was difference of opinion in that case also.

[(b) ]Cockle v. S. E. R. Co. (1872) Ex. Ch. L. R. 7 C. P. 321, 41 L. J. C. P. 140.

[(c) ]Siner v. G. W. R. Co. (1869) Ex. Ch. L. R. 4 Ex. 117, 38 L. J. Ex. 67.

[(d) ]Bridges v. N. London R. Co. p. 402, above.

[(e) ]Robson v. N. E. R. Co. 2 Q. B. Div. 85, 46 L. J. Q. B. 50; Rose v. N. E. R. Co. 2 Ex. Div. 248, 46 L. J. Ex. 374 (both in 1876).

[(f) ]L. R. 5 C. P. 98, 39 L. J. C. P. 68, in Ex. Ch. 6 C. P. 14, 40 L. J. C. P. 21 (1870). The accident took place in the extraordinarily warm and dry summer of 1868.

[(g) ]See statement of the facts in the report in Ex. Ch. L. R. 6 C. P. at p. 15.

[(h) ]Brett J. dissented in the Common Pleas, and Blackburn J. expressed some doubt in the Ex. Ch. on the ground that the particular damage in question could not have reasonably been anticipated.

[(i) ]Lush J. in Ex. Ch. L. R. 6 C. P. at p. 23.

[(k) ]Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212, supra, p. 42.

[(l) ]Crafter v. Metrop. R. Co. (1868) L. R. 1 C. P. 300, 35 L. J. C. P. 132: the plaintiff slipped on the brass “nosing” of the steps (this being the material in common use, whereof the Court took judicial notice “with the common experience which every one has,” per Willes J. at p. 303), and it was suggested that lead would have been a safer material.

[(m) ]P. 400, above.

[(n) ]Blackst. Comm. iv. 192. D. 9. 2, ad. leg. Aquil. 31. In a civil action it would probably be left to the jury whether, on the whole, the work was being done with reasonable care.

[(o) ]Cp. Skelton v. L. & N. W. R. Co. (1867) L. R. 2 C. P. 631, 36 L. J. C. P. 249, decided however on the ground that the accident was wholly due to the man’s own want of care.

[(p) ]In the United States there is some: see Wharton, §§ 307, 310; Cooley on Torts, 683; Beven on Negligence, 8.

[(q) ]See Campbell, 180; Horace Smith, 226; and Wharton, §§ 300 sqq., who gives the same conclusions in a more elaborate form. The use of such phrases as in pari delicto, though not without authority, is likewise confusing and objectionable.

[(r) ]Lord Blackburn, 3 App. Ca. at p. 1207.

[(s) ]Lord Penzance, Radley v. L. & N. W. R. Co. (1876) 1 App. Ca. at p. 759.

[(t) ]The Bernina (1887) 12 P. D. 36, 56 L. J. P. 38; affd. nom. Mills v. Armstrong (1888) 13 App. Ca. 1, 57 L. J. P. 65; see especially the judgment of Lindley L. J., and cp. Little v. Hackett (1886) 116 U. S. 366, 371.

[(u) ]W. Schofield in Harv. Law Rev. iii. 270.

[(x) ]2 C. B. N. S. 740, 5 C. B. N. S. 573, 27 L. J. C. P. 322 (1857-8).

[(y) ]5 C. B. N. S. at p. 585.

[(z) ]Not “could:” see Beven on Negligence, 132.

[(a) ]1 App. Ca. 754, 46 L. J. Ex. 573, reversing the judgment of the Exchequer Chamber, L. R. 10 Ex. 100, and restoring that of the Court of the Exchequer, L. R. 9 Ex. 71 (1874-6).

[(b) ]Bramwell and Amphlett BB.

[(c) ]Blackburn, Mellor, Lush, Grove, Brett, Archibald JJ.; diss. Denman J.

[(d) ]By Lord Penzance, Lord Cairns, Lord Blackburn (thus retracting his opinion in the Ex. Ch.), and Lord Gordon.

[(e) ]Lord Penzance, 1 App. Ca. at p. 760.

[(f) ]Or, as Mr. Wharton puts it, not a cause but a condition. But the contrast of “cause” and “condition” is dangerous to refine upon: the deep waters of philosophy are too near.

[(g) ]Cp. Mr. W. Schofield’s article in Harv. Law Rev. iii. 263.

[(h) ]5 C. B. N. S. 573, 27 L. J. C. P. 322.

[(i) ]10 M. & W. 546, 12 L. J. Ex. 10 (1842).

[(j) ]Parke B., 10 M. & W. at p. 549; cp. his judgment in Bridge v. Grand Junction R. Co. (1838) 3 M. & W. at p. 248.

[(k) ]7 Q. B. 339, 376, 15 L. J. Q. B. 59.

[(l) ]See Harv. Law Rev. iii. 272—276.

[(m) ]11 East 60, 10 R. R. 433 (1809).

[(n) ]Little v. Hackett (1886) 116 U. S. 366, 371; Butterfield v. Forrester, last page.

[(o) ]Radley v. L. & N. W. R. Co.; Davies v. Mann.

[(p) ]Per Lindley L. J., The Bernina, 12 P. D. 58, 89.

[(q) ]Lord Watson (Lord Blackburn agreeing), Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. at pp. 47-49.

[(r) ]Bridge v. Grand Junction R. Co. (1838) 3 M. & W. 248.

[(s) ]See per Lindley L. J., 12 P. D. 89.

[(t) ]3 App. Ca. 1155.

[(u) ]12 M. & W. 546.

[(x) ]1 App. Ca. 754, 46 L. J. Ex. 573.

[(y) ]L. Q. R. v. 87.

[(z) ]Little v. Hackett (1886) 116 U. S. 366; Mills v. Armstrong (1888) 13 App. Ca. 1, overruling Thorogood v. Bryan (1849) 8 C. B. 115, 18 L. J. C. P. 336.

[(a) ]Judgments in Thorogood v. Bryan, see 12 P. D. at pp. 64—67, 13 App. Ca. at pp. 6, 7, 17.

[(b) ]Coltman, Maule, Cresswell, and Vaughan Williams JJ.

[(c) ]Hughes v. Macfie (1863) 2 H. & C. 744, 33 L. J. Ex. 177; and see Clark v. Chambers (1878) 3 Q. B. D. at pp. 330—336, p. 43, above; Dixon v. Bell, 5 M. & S. 198, 17 R. R. 308, p. 458, below.

[(d) ]Clark v. Chambers, last note.

[(e) ]Waite v. N. E. R. Co. (1859) Ex. Ch. E. B. & E. 719, 27 L. J. Q. B. 417, 28 L. J. Q. B. 258. This case is expressly left untouched by Mills v. Armstrong, 13 App. Ca. 1 (see at pp. 10, 19), 57 L. J. P. 65).

[(f) ]This might happen in various ways, by reason of darkness or otherwise.

[(g) ]Singleton v. E. C. R. Co. (1889) 7 C. B. N. S. 287, is a case of this kind, as it was decided not on the fiction of imputing a third person’s negligence to a child, but on the ground (whether rightly taken or not) that there was no evidence of negligence at all.

[(h) ]Mangan v. Atterton (1866) L. R. 1 Ex. 239, 35 L. J. Ex. 161, comes near it. But that case went partly on the ground of the damage being too remote, and since Clark v. Chambers (1878) 3 Q. B. D. 327, 47 L. J. Q. B. 427, supra, p. 43, it is of doubtful authority. For our own part we think it is not law. Cp. Mr. Campbell’s note to Dixon v. Bell, 17 R. R. 308.

[(i) ]Holmes, The Common Law, 128.

[(j) ]Bigelow L. C. 729, and see Horace Smith 241. In Vermont (Robinson v. Cone, 22 Vt. 213, 224, ap. Cooley on Torts, 681) the view maintained in the text is distinctly taken. “We are satisfied that, although a child or idiot or lunatic may to some extent have escaped into the highway, through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person is on the highway, or on a railway, he is bound to a proportionate degree of watchfulness, and what would be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger.” So, too, Bigelow 730, and Newman v. Phillipsburg Horse Car Co., 52 N. J. 446, Jer. Smith, 2 Sel. Ca. on Torts, 212.

[(k) ]Child v. Hearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100.

[(l) ]P. 422, above.

[(m) ]“Cattle,” held by the Court to include pigs.

[(n) ]That is, pigs of average vigour and obstinacy; see per Bramwell B., whose judgment (pp. 181, 182) is almost a caricature of the general idea of the “reasonable man.” It was alleged, but not found as a fact, that the defendant had previously been warned by some one of his pigs being on the line.

[(o) ]Note in Addison on Torts, 5th ed. 27.

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

[(q) ]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., 3 M. & W. 244, 248.

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

[(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.

[(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.

[(a) ]12 Q. B. 439 (1848). The rule was laid down by Lord Ellenborough at nisi prius as early as 1816: Jones v. Boyce, 1 Stark. 493, cited by Montague Smith J., L. R. 4 C. P. at p. 743. The plaintiff was an outside passenger on a coach, and jumped off to avoid what seemed an imminent upset; the coach was however not upset. It was left to the jury whether by the defendant’s fault he “was placed in such a situation as to render what he did a prudent precaution for the purpose of self-preservation.”

[(b) ]Evidence was given by the defendants, but apparently not believed by the jury, that their men expressly warned the plaintiff against the course he took.

[(c) ]See Appendix B. to Smith on Negligence, 2d ed. I agree with Mr. Smith’s observations ad fin., p. 279.

[(d) ]Robson v. N. E. R. Co. (1875-6) L. R. 10 Q. B. 271, 274, 44 L. J. Q. B. 112 (in 2 Q. B. Div. 85, 46 L. J. Q. B. 50); Rose v. N. E. R. Co. (1876) 2 Ex. Div. 248, 46 L. J. Ex. 374.

[(e) ]Contra Bramwell L. J. in Lax v. Corporation of Darlington (1879) 5 Ex. D. at p. 35; but the lastmentioned cases had not been cited.

[(f) ]Filer v. N. Y. Central R. R. Co. (1872) 49 N. Y. (4 Sickels) 47.

[(g) ]63 N. Y. at p. 559.

[(h) ]Burrows v. Erie R. Co. (1876) 63 N. Y. (18 Sickels) 556.

[(i) ]Coulter v. Express Co. (1874) 56 N. Y. (11 Sickels) 585; Twomley v. Central Park R. R. Co. (1878) 69 N. Y. (24 Sickels) 158. Cp. Jones v. Boyce (1816) 1 Stark. 493.

[(k) ]Eckert v. Long Island R. R. Co. (1871) 43 N. Y. 502, 3 Am. Rep. 721 (action by representative of a man killed in getting a child off the railway track in front of a train which was being negligently driven).

[(l) ]E. g. Lord Esher’s judgment in The Bernina, 12 P. Div. at pp. 77—82. Cp. per Lord Herschell in Mills v. Armstrong, 13 App. Ca. at p. 10.

[(m) ]Stimson, American Statute Law, p. 132, § 605.

[(n) ]For a strong example see Kane v. N. Central R. Co. 128 U. S. 91. In Washington &c. R. R. Co. v. McDade (1889) 135 U. S. 554, 564, “counsel for the defendant asked the Court to grant twenty separate prayers for instructions to the jury.”