find the cases. Coulter v. American Exp. Co., 5 Lans. 67, s. c. 56 N. Y. 585; Indianapolis, &c. R. Co. v. Carr, 35 Ind. 510; Illinois Central R. Co. v. Able, 59 Ill. 131; Frink v. Potter, 17 Ill. 406; Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 47; Stokes v. Saltonstall, 13 Peters, 181; Buel v. New York Cent. R. Co., 31 N. Y. 314; Southwestern R. Co. v. Paulk, 24 Ga. 356; Johnson v. West Chester & P. R. Co., 70 Penn. St. 357; Galena & C. R. Co. v. Yarwood, 17 Ill. 509; Snow v. Housatonic R. Co., 8 Allen, 441; Sears v. Dennis, 105 Mass. 310; Babson v. Rockport, 101 Mass. 93; ante, p. 609. But whether the fright or confusion was caused by the defendant is a question for the jury, and perhaps, too, whether it was reasonable in the particular person. Johnson v. West Chester & P. R. Co.; Galena & C. R. Co. v. Yarwood, supra. And what would be reasonable in a child might not be in a man, and so of other cases. Filer v. New York Cent. R. Co., 49 N. Y. 47. (As to questions for the jury, see ante, p. 589. And as to what constitutes negligence, consult the same note, where the rules are stated for the determination of questions of the existence of negligence, as a matter of law. As to the law concerning deaf and blind persons, see Illinois Central R. Co. v. Buckner, 28 Ill. 299; Chicago & R. R. Co. v. McKean, 40 Ill. 218; Sleeper v. Sandown, 52 N. H. 244. As to drunken persons, Cassidy v. Stockbridge, 21 Vt. 391; Alger v. Lowell, 3 Allen, 402; Chicago & A. R. Co. v. Gregory, 58 Ill. 226; Thorp v. Brookfield, 36 Conn. 320; Toledo, &c. R. Co. v. Riley, 47 Ill. 514.) There are some cases which apparently present exceptions to the principle of causation, even as above explained. We refer to cases like Bird v. Holbrook, 4 Bing. 628, elsewhere noticed, in which it has been held that even a trespasser whose act has truly contributed to the injury of which he complains may sometimes recover damages. But these cases stand upon the ground that the defendant has been guilty of an enormous and inhuman act, beside which the slight trespass of the plaintiff is not worthy of consideration. The defendant has knowingly and intentionally caused the plaintiff to be maimed for venturing upon his premises on a very innocent errand. The defendant would have been no more guilty had he himself sprung the trap or engine upon the plaintiff's entry; and the trespass would be as properly the cause of the injury in this case as in the other. But, if the plaintiff had fallen into a well which had been carelessly left uncovered, the occupant of the premises would not have been liable. See ante, p. 697. As to the proper mode of instructing the jury in cases of contributory negligence, the case of Tuff v. Warman, 5 Com. B. N. s. 573, has of late been generally followed. See Hoffman v. Union Ferry Co., 47 N. Y. 176; New Jersey Express Co. v. Nichols, 33 N. J. 435; Scott v. Dublin & W. Ry. Co. 11 Irish C. L. 377; London, B., &c., Ry. Co. v. Walton, 14 Law T. N. s. 253. (As to the proper province of the court and jury, the rules of law are not different from those stated ante, p. 509. Several of the cases there cited were cases of contributory negligence.) In the above case of Tuff v. Warman, the court laid down the following as the proper question for the jury: "Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed that it might have occurred from the to the misfortune by his own negli- conduct of either without the fault of gence or want of ordinary and common the other, there would then be a case of care and caution that, but for such contributory negligence, for the consenegligence or want of ordinary care quences of which neither could recover and caution on his part, the misfor- from the other. But upon the statement tune would not have happened." "In quoted [supra] from Tuff v. Warman, the first case," say the court, "the neither would be disentitled,' and plaintiff would be entitled to recover; therefore both could recover, if both in the latter, not, as but for his own suffered injury, each from the other. fault the misfortune would not have Every case in which the proof fails to happened. Mere negligence or want show, or leaves it in doubt, which of of ordinary care or caution would not, two sufficient causes was the actual however, disentitle him to recover, un- proximate cause of the injury, is practiless it were such that, but for that cally such a case. It is manifest from negligence or want of ordinary care this illustration that, as a definition of and caution, the misfortune could not the limits of the right to recover in such have happened; nor if the defendant cases, the proposition must be logically might, by the exercise of care on his incorrect. Eliminating negatives from part, have avoided the consequences of the first branch of the proposition, it is the neglect or carelessness of the plain- that a plaintiff may recover in such tiff." This, it was added, appeared to cases unless the misfortune could not be the result deducible from the opinion have happened but for his own negliof the judges in Butterfield v. Forrester, gence. This, as we have seen, being 11 East, 60; Bridge v. Grand Junction stated affirmatively, is too broad and Ry. Co., 3 Mees. & W. 246; Davies v. not correct, although its supplement Mann, 10 Mees. & W. 548; Dowell v. or negative counterpart is correct as General Steam Nav. Co., 5 El. & B. far as it extends; to wit, that he cannot 206. recover if the misfortune could not have happened but for his own negligence." Well-founded doubts have been expressed of the correctness of such instructions as a universal formula. Under it a plaintiff might in some cases recover, contrary to all principle. "If it should appear," said Wells, J., of this case, in Murphy v. Deane, 101 Mass. 455, 464, “that the negligence of the defendant was an adequate cause to produce the result, the plaintiff must recover, even though he was himself equally, or even to a greater degree than the defendant, in fault. If the case can be supposed in which both parties were equally in fault, the fault of each being equally proximate, direct, and adequate to produce the result, so The learned judge thought that the rule, as stated by Pollock, C. B., in Greenland v. Chaplin, 5 Ex. 248, was accurate, except that it omitted the consideration of the burden of proof (as to which see infra). The rule referred to was that, when the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action. See Dowell v. General Steam Navigation Co., 5 El. & B. 195; Bridge v. Grand Junction Ry. Co., 3 Mees. & W. 244; Johnson v. Hudson River R. Co., 20 N. Y. 65; Trow v. Vermont Cent. R. Co., 24 Vt. 487; Beers v. Housatonic R. Co., 19 Conn. 566. The last clause in the rule stated in Tuff v. Warman (that the plaintiff might recover if the defendant could have avoided the consequences of his negligence) is evidently applicable only to cases in which the plaintiff's negligence precedes the defendant's. "But where," says Wells, J., ut supra, "the negligent conduct of the two parties is contemporaneous, and the fault of each relates directly and proximately to the occurrence from which the injury arises, the rule of law is rather that the plaintiff cannot recover, if by due care on his part he might have avoided the consequences of the carelessness of the defendant. Lucas v. New Bedford & T. R. Co., 6 Gray, 64; Waite v. Northeastern Ry. Co., 9 El. & B. 719 ; Robinson v. Cone, 22 Vt. 213; [Daniels v. Clegg, 28 Mich. 32; Walsh v. Miss. R. Co., 52 Mo. 434; Newhouse v. Miller, 35 Ind. 463]. Suppose the case of a collision upon a public highway; both parties careless and equally in fault, but either by the exercise of proper care on his part might have avoided the consequences of the carelessness of the other. By the proposition last quoted from Tuff v. Warman, each would be liable to the other, and each would be entitled to recover from the others for whatever injuries he might have received." The true question for the jury in the opinion of the court (aside from the burden of proof) was whether there was negligence on the part of the plaintiff, contributing directly, or as a proximate cause, to the occurrence from which the injury arose; if there was, the plaintiff could not recover. This, it will be observed, is, in effect, only another way (and for an average jury, perhaps, a more suitable) of stating the rule above mentioned, to wit, that, if the plaintiff's conduct acted as an intervening cause between the act or omission of the defendant and the injury, the plaintiff cannot recover, since he cannot prove that the defendant's misconduct was the cause of the misfortune. The object of our examination has been to ascertain the ground of the doctrine of negligence, and to show that there is (or need be) nothing peculiar in it. In Illinois and Georgia, however, the courts allow juries to apportion the negligence of the plaintiff and defendant, respectively, somewhat like the rule in cases of marine torts, and to allow the plaintiff to recover in case the defendant's negligence was greater than the plaintiff's, but denying the right of recovery where the negligence of the plaintiff was as great as, or greater than, that of the defendant. Chicago, &c., R. Co. v. Van Patten, 64 Ill. 510; Chicago & North-western R. Co. v. Sweeney, 52 Ill. 330; Illinois Cent. R. Co. v. Baches, 59 Ill. 379. See O'Keefe v. Chicago, &c., R. Co., 32 Iowa, 467. But this doctrine (called the doctrine of comparative negligence) applies, probably, only in those cases where the plaintiff's negligence directly contributed, as an intervening cause, to the misfortune. Burden of Proof. — Upon the question of the burden of proof in respect of contributory negligence, there is a diversity of authority. In New England, Illinois, and elsewhere, the rule is that the plaintiff must show, in the first instance, that, when the injury occurred, he was in the exercise o proper care, and that the misfortune was not caused by his own negligence. Murphy v. Deane, supra; Trow v. Vermont Cent. R. Co., 24 Vt. 487; Birge v. Gardiner, 19 Conn. 507; Park v. O'Brien, 23 Conn. 339; Dickey v. Maine Tel. Co., 43 Maine, 492; Dyer v. Talcott, 16 Ill. 300; Galena & B. R. Co. v. Fay, ib. 558; Dressler v. Davis, 7 Wis. 527; Evansville & I. R. Co. v. Hiatt, 17 Ind. 102. And in the first case cited it is stated that the plaintiff does not sustain that burden if the proof leaves it in doubt whether or not the injury resulted, in whole or in part, from the fault of the plaintiff. In the Supreme Court of the United States, in Pennsylvania, apparently in New York, and elsewhere, the contrary rule prevails; the plaintiff not being required to give evidence of his own care and prudence at the time of the accident. Railroad Co. v. Gladmon, 15 Wall. 401; Pennsylvania Land Co. v. Bentley, 66 Penn. St. 30; Cleveland R. Co. v. Rowan, ib. 393; Oldfield v. New York & H. R. Co., 3 E. D. Smith, 103; s. c. 14 N. Y. 310; Johnson v. Hudson River R. Co., 5 Duer, 21; s. c. 20 N. Y. 65; Button v. Hudson River R. Co., 18 N. Y. 248; Wilds v. Hudson River R. Co., 24 N. Y. 430; Smoot v. Wetumpka, 24 Ala. 112; Durant v. Palmer, 5 Dutch. 544; St. Anthony Falls Co. v. Eastman, 20 Minn. 277. This seems to be the more correct doctrine. To hold the contrary is in effect to raise a presumption of law that the plaintiff himself caused the accident; and this is contrary to the analogies of the law. The presumption as to the defendant is that he was acting according to law; and it is difficult to see why (in the absence of statute) the same presumption should not be raised in favor of the plaintiff. All men are presumed to act lawfully until the contrary is shown. Identification or Imputability. (a.) Passenger and Carrier. - We conclude this note on contributory negligence, and with it our chief labor on this book, with a consideration of what is sometimes called the doctrine of imputability. The rule prevails in England and in several of the States of this country that a passenger in a stage or railway coach becomes so far identified with the carrier, by the act of obtaining passage, that the negligence of the carrier is imputed to him, in the case of an action by the passenger against another through whose negligence an accident has occurred to the plaintiff's coach, resulting in injury to the plaintiff. That is, if the carrier was guilty of contributory negligence, the passenger cannot recover against the other. Thorogood v. Bryan, 8 Com. B. 115; Catlin v. Hills, ib. 123; Armstrong v. Lancashire Ry. Co., Law R. 10 Ex. 47; Cleveland, &c., R. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Reasor, 9 Ohio St. 484; Smith v. Smith, 2 Pick. 621; Lockhardt v. Lichtenthaler, 46 Penn. St. 151. In Thorogood v. Bryan, supra, Coltman, J., said that the case raised distinctly the question whether a passenger in an omnibus was to be considered so far identified with the owner that negligence on the part of the owner or his servant was to be considered negligence of the passenger himself. "As I understand the law upon this subject," said he, "it is this: that a party who sustains an injury from the careless or negligent driving of another may maintain an action, unless he has himself been guilty of such negligence or want of due care as to have contributed or conduced to the injury. In the present case, the negligence that is relied on as an excuse is, not the personal negligence of the party injured, but the neg ligenc of the driver of the omnibus in which was a passenger. But it appears to me that, having trusted the party by selecting the particular conveyance, the plaintiff has so far identified himself with the owner and her servants that, if any injury results from their negligence, he must be considered a party to it. In other words, the passenger is so far identified with the carriage in which he is travelling that want of care on the part of the driver will be a defence of the driver of the carriage which directly caused the injury." Mr. Justice Maule said: On the part of the plaintiff, it is suggested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant, the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it. . . . If there is negligence on the part of those who have contracted to carry the passengers, those who are injured have a clear and undoubted remedy against them. But it seems strange to say that, although the defendant would not, under the circumstances, be liable to the owner of the other omnibus for any damage done to his carriage, he still would be responsible to a passenger." The other judges concurred. ... The above, it is believed, are the only grounds which have been taken in any of the cases for sustaining the rule. The doctrine has not been received without objection, even in England. "If," say the learned editors of Smith's Leading Cases (vol. i. p. 220, 4th Eng. ed.), "two drunken stage-coachmen were to drive their respective carriages against each other and injure the pas sengers, each would have to bear the injury to his carriage, no doubt; but it seems highly unreasonable that each set of passengers should, by a fiction, be identified with the coachmen who drove them, so as to be restricted for remedy to actions against their own driver or his employer. This, nevertheless, appears to be the result of the decision in Thorogood v. Bryan; but it may be questioned whether the reasoning of the court in that case is consistent with those of Rigby v. Hewitt, 5 Ex. 240, and Greenland v. Chaplin, ib. 243, or with the series of decisions from Quarman v. Burnett, 6 Mees. & W. 499, to Reedie v. London & North-western Ry. Co., 4 Ex. 244. Why in this particular case both the wrong-doers should not be considered liable to a person free from all blame, not answerable for the acts of either of them, and whom they have both injured, is a question which seems to deserve more consideration than it received in Thorogood v. Bryan." And this criticism is referred to as damaging" by Williams, J., in the course of the argument of Tuff v. Warman, 2 Com. B. N. s. 740, 750. So, too, Dr. Lushington, in the High Court of Admiralty, has declined to follow Thorogood v. Bryan. The Milan, 1 Lush. 388. This was a case of collision between two vessels, in mutual fault, in which the plaintiffs, owners of a cargo on one of the vessels, were held entitled to recover half the damages from the other vessel. As to Thorogood v. Bryan the learned judge observed: "I decline to be bound by it, because it is a single case; because I know upon inquiry that it has been doubted by high authority; because it appears to me not reconcilable with other principles laid down at common law; and, lastly, because it is directly |