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).

This leaves no

"Proximate or "decisive" cause? doubt that the true ground of contributory negligence being a bar to recovery is that it is the proximate cause of

(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.

Proximate cause. Proximate means direct or immediate. In the case of Montgomery Gas Light Co. v. Montgomery & E. Ry. Co. (86 Ala. 381; 580; 5 Rep. 735) the court said: "It is objected, that the circuit court in defining the phrase contributory negligence embraced in it the idea, that

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 were 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,

(ƒ) Or, as Mr. Wharton puts it, not a cause but a condition.

it must have been of a character to have 'essentially contributed' to the injury set out in the complaint. It is often said, that no negligence on the part of the plaintiff, which remotely contributes to produce an injury, will debar him from a recovery; and it is variously stated, that no negligence is contributory and proximate, in the order of cause and effect, unless it'substantially' or 'essentially,' or 'directly' tends to produce such injury, or is an efficient cause' or 'actual and efficient 'cause in producing it. These terms of description are often used indifferently to distinguish the direct and immediate or judicial cause of the injury, from a remote cause or mere condition of such injury, and they cannot be said to be either erroneous or misleading." Government St. R. Co.

v. Hanlon, 53 Ala. 70, approved. See Hoag v. Railroad, 85 Pa. St. 292; Beach on Contrib. Neg. 25 and 28; Jung v. City of Stevens Point, 74 Wis. 554. "The act or omission on the part of a plaintiff claimed to have contributud to the injury must have direct relation to the act or omission charged to be negligence on the part of the defendant." McQuitken v. Central P. R. Co., 64 Cal. 463; 16 Am. & Eng. R. Cas. 353. See Trow v. Vermont C. R. Co., 24 Vt. 487; 58 Am. Dec. 191; Fowler v. Balt. & O. R. Co., 48 W. Va. 579; 8 Am. Eng. R. Cas. 480; Meeks v. Southern P. R. Co., 56 Cal. 513; 8 Am. & Eng. R. Cas. 314; Zemp v. Wilmington etc. R. Co., 9 Rich. 84; 64 Am. Dec. 763; Alexander v. Town of New Castle, 115 Ind. 51; 17 N. E. Rep. 200; Pastime v. Adams, 49 Cal. 87; Railway Co. v. Kellogg, 94 U. S. 474; Thompson v. Louisville & N. R. Co., 91 Ala. 496; 8 So. Rep. 408; Blaine v. C. & O. R., 9 W. Va. 267; Williams v. Edmunds, 75 Mich. 97; Smith v. French, 83 Me. 108; 21 At. Rep. 739; Cline v. Crescent City R. R. Co., 43 La. An. 333; 9 So. Rep. 122; St. Louis etc., Ry. Co. v. McKinsey, 78 Tex. 298; 14 S. W. Rep. 645; Mars v. Del. & H. Canal Co., 54 Hun, 631; 8 N. Y. S. Rep. 107; Banks v. Wabash Western Ry. Co., 40 Mo. App. 464; Nagel v. Railroad, 75 Mo. 661; Steamboat Farmer v. McCraw, 26 Ala. 189; Grant v. Moseley, 29 Id. 304; Beers v. Housatonic R. Co., 19 Conn. 566; Marcott v. Railroad Co., 47 Mich. 1; 49 Id. 99; 4 Am. & Eng. R. Cas. 548; James v. James (Ark.) 23 S. W. Rep. 1099.

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.

an

Self-created disability to avoid consequences of other'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

Self-created disability to avoid consequences of another's negli

gence. The rule that where a person by either act or omission deprives himself of ordinary ability to avoid the consequences of another's negligence forfeits his right to complain of injury received therefrom is recognized and established in America, although it seems that in a majority of the cases intoxication was the cause of the disability. "Intoxication on the part of the deceased will not, as a matter of law, establish the charge of contributory negligence set up in the answer, but it is a fact from which contributory negligence may be inferred. The weight of such evidence depends much upon the degree of intoxication, not drunkenness to any degree as a fact which should be considered on the question of contributory negligence." Buddenberg v. Chouteau Transp. Co., 108 Mo. 394; 18 S. W. Rep. 971, citing Beach Contrib. Neg., Sec. 66; Fitzgerald v. Town of Weston, 52 Wis. 355; 9 N. W. Rep. 13; Bishop on Non-Contract Law, Sec. 513; East Tennessee etc. R. Co. v.

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 his 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

(g) Cp. Mr. W. Schofield's article in Harv. Law Rev. 111. 263.

(h) 5 C. B. N. 8. 573, 27 L. J. C. P. 322.

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

Winters, 85 Tenn. 240; Monk v. New Utrecht, 104 N. Y. 552; Alger v. Lowell, 3 Allen, 402; Barbee v. Reese, 60 Miss. 906; Reed v. Harper, 25 Ia. 87; McKee v. Ingall, 5 Ill. 30; Illinois Cent. R. Co. v. Cragin, 71 Ill. 177; Hubbard v. Mason City, 60 Ia. 400; Weltoy v. Indianapolis, etc. R. Co., 105 Ind. 55; Anderson v. The E. B. Ward, Jr., 38 Fed. Rep. 44. See Drunkenness, ante, p. 59.

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 (7).

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

(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. (1) See Harv. Law Rev. iii. 272, 276. (m) 11 East, 60 (1809).