1850.

GREENLAND

v.

CHAPLIN.

At the trial, before Pollock, C. B., at the Middlesex Sittings after last Michaelmas Term, it appeared that the plaintiff was a passenger on board a steam-boat called "The Sons of the Thames," which was going from Westminster to London Bridge. The defendant's steam-boat, called "The Bachelor," was going the same way, and, as the vessels approached the Adelphi Pier, "The Bachelor" struck "The Sons of the Thames" on the bow, where the anchor was carried, and, in consequence, it fell upon and broke the plaintiff's leg. There was conflicting evidence as to the degree of negligence attributable to the respective steam-boats, and especially as to the propriety of the mode in which the anchor on board "The Sons of the Thames" was carried in the bow of the vessel. The learned Judge told the jury, that if they were of opinion that the collision was owing to the bad navigation of " The Bachelor," they should find a verdict for the plaintiff; but if they thought that there was any negligence, either in the stowage of the anchor, or in the plaintiff putting himself in the place where he was, on board "The Sons of the Thames," they should find for the defendant. The jury having found a verdict for the plaintiff, with 2007. damages,

Shee, Serjt., in last Hilary Term obtained a rule nisi to set aside the verdict, as against evidence, no objection being taken as to the mode in which the question was left to the jury.

Humfrey and A. Fry shewed cause (April 27).—The question of negligence was one peculiarly for the jury, and their finding ought not to be disturbed unless it is manifestly wrong. The case was left to the jury too favourably for the defendant, for, as the collision arose from the negligent navigation of the defendant's vessel, it was immaterial in what way the anchor was placed on board the

other vessel. The general rule of law, as laid down in Davies v. Mann (a), is, that although there may have been negligence on the part of the plaintiff yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover. Parke, B., there says, "This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company (b), where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could by ordinary care have avoided the consequences of the defendant's negligence." Even if the jury had thought that the mode of carrying the anchor was improper, the defendant would nevertheless be liable for injury caused by his negligent conduct in striking the anchor: Sills v. Brown (c). A trespasser is entitled to compensation for injury done to him by a spring-gun placed without notice on the land on which he trespasses: Bird v. Holbrook (d). In Cattlin v. Hills (e), where the facts of the case were similar to the present, Cresswell, J., told the jury that they must dismiss from their minds all that had been said about the stowing of the anchor, for that the plaintiff would be entitled to a verdict, even though they should think the anchor had been improperly left unfastened. It is not necessary in this case to dispute the authority of Thorogood v. Bryan (f).

Shee, Serjt., Bramwell, and A. W. Simpson, in support of the rule. The plaintiff cannot recover if the injury in part arose from the negligent stowage of the anchor. Thorogood v. Bryan decided that a passenger in a carriage, or on board a vessel, is so far identified with the owner,

1850.

GREENLAND

v.

CHAPLIN.

1850.

GREENLAND

V.

CHAPLIN.

that negligence on the part of the owner or his servant is to be considered negligence of the passenger himself. The persons navigating "The Bachelor" had a right to expect that the anchor of "The Sons of the Thames" would be safely stowed, or, at all events, that passengers would be kept out of the way of injury. The true principle is, that the person injured cannot recover if negligence on his part conduced to the accident. Here three things concurred to cause the injury, viz. the plaintiff placing himself in a dangerous situation, the anchor being improperly stowed, and the defendant's vessel striking the other. This case is governed by Butterfield v. Forrester (a), where Lord Ellenborough said, "One person being in fault will not dispense with another's using ordinary care for himself." That rule was recognised and adopted in Bridge v. The Grand Junction Railway Company. [Pollock, C. B.—Can it be said that a person guilty of negligence is responsible for all the possible consequences, which he could never have foreseen, and which no one would have anticipated? For instance, if a person chooses to walk in a crowded street with an open knife under his coat, and another person negligently runs against him, is that other person to be responsible for all the injury which the knife may inflict on the person who carries it?] Flower v. Adam (b) is an express authority that, if the proximate cause of damage be the plaintiff's unskilfulness, although the primary cause be the misfeasance of the defendant, the former cannot

recover.

Cur adv. vult.

POLLOCK, C. B., now said:-In this case, which is very analogous to Rigby v. Hewitt, and where the same question might have arisen, the plaintiff recovered a verdict, with 2007. damages. The foundation of the action was, that a steam

(a) 11 East, 60.

(b) 2 Taunt. 314.

boat, belonging to the defendant, had been so negligently conducted that it ran against a steam-boat on board of which the plaintiff was a passenger, in consequence of which an anchor, which was displaced, fell over and broke the plaintiff's leg. At the trial, the jury found that the management of the vessel on board which the plaintiff was, was right, and that the conduct of the defendant's vessel was negligent and wrong. I must say, though there was evidence on both sides, and it would have been equally satisfactory to me if the verdict had been the other way, that it was a question proper to be disposed of by a jury, and that their verdict ought not now to be disturbed. My Brother Shee contended, that the accident in part arose from the negligent stowage of the anchor, and from the plaintiff being in a part of the vessel where he ought not to have been. But the jury negatived both these propositions, and found a verdict for the plaintiff, notwithstanding I told them, no doubt incorrectly, that, if they thought either that there was negligence in the stowage of the anchor, or that the accident arose from the plaintiff being in a part of the vessel where he ought not to have been, they ought to find for the defendant. The jury, however, found as a fact, that neither the one nor the other of those matters in reality existed; and the motion for a new trial was made on this ground,-that the law, as laid down by me, was correct, and that the verdict of the jury was wrong, it being against the evidence. I must own that, on the fullest consideration which I can give to the result of the evidence, I am not prepared to say that I am dissatisfied with the verdict; the rule will therefore be discharged. But I may add that, on consideration, I am of opinion that the law, as laid down by me in this respect, was not correct. I entirely concur with the rest of the Court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, "Part of that mischief would not have arisen if you yourself had not been.

1850.

GREENLAND

v.

CHAPLIN.

1850.

GREENLAND

ข.

CHAPLIN.

guilty of some negligence." I think that where 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; and certainly I am not aware that, according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party. But here I may again state, that it occurs to me there is considerable doubt, and at present I guard myself against being supposed to decide with reference to any case which may hereafter arise; but, at the same time, I am desirous that it may be understood that I entertain considerable doubt, whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. Whenever that case shall arise, I shall certainly desire to hear it argued, and to consider whether the rule of law be not this: that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur. I beg to say that, in expressing this doubt whether the responsibility for consequential damage extends to the extreme case to which I have adverted, I am expressing my own opinion only, and not that of the rest of the Court.

Rule discharged.