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

(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.

expectation or hope that others will fully perform the duties resting on them, may all have to be considered." Miner v. Conn. River R. Co., 153 Mass. 308; 26 N. E. Rep. 995. Thus, a woman being obliged to throw herself on a railroad platform to escape being struck by a piece of timber projecting from a car in motion, had her health impaired by the fright thus occasioned. It was held that she was entitled to recover damages for such impairment of her health. Buchanan v. West Jersey R. Co., 52 N. J. 262; 19 At. Rep. 224. See Austin & N. W. Ry. Co. v. Beatty, 73 Tex. 595; 11 S. W. Rep. 858.

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

(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 last-mentioned cases had not been cited.

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

(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, 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).

Separation of law and fact in United States. See NEGLIGENCE A QUESTION OF MIXED FACT AND LAW, ante, p. 543; and BURDEN OF PROOF, ante, p. 545.

questions discussed in this chapter, and American cases are constantly, and sometimes very freely, cited and even judicially reviewed (1) 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

(1) 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 sec 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."

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.