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§ 2922. Application of the Doctrine of Contributory Negligence in the Case of Injuries to Passengers.'-Applying the general rule of courts of the common law, which denies a recovery of damages where the plaintiff or the person injured was guilty of negligence which directly, proximately and materially contributed to the injury,2 we find that, notwithstanding the extraordinary degree of care which the law imposes upon a carrier of passengers,3 and notwithstanding the fact that the law puts upon the passenger himself no higher obligation, in attending to his own safety, than the rule of ordinary care, yet nevertheless, if the passenger, notwithstanding the negligence of the carrier, might have averted the injury to himself by the exercise of ordinary care on his part, such ordinary care being measured and judged by all the circumstances of the case, he can not recover damages from the carrier. But, in the application of the doctrine of contributory negligence in cases of injuries to passengers, it is to be constantly kept in mind that the law imposes upon the carrier and the passenger an unequal obligation: upon the carrier the obligation of extraordinary care," upon the passenger the obligation of no more than ordinary or reasonable care. If, therefore, the passenger might have averted the injury to himself by the exercise of an extraordinary degree of care in attending to his own safety, he may nevertheless recover damages, although the failure to exercise such a degree of care contributed to his injury. The measure of the passenger's duty being ordinary care, it has been held that slight inattention on his part, which is not the proximate cause of an injury to him resulting from the gross negligence of the railway company, does not bar a recovery for such negligence, although ordinary negligence on his part would be such a bar.8

§ 2923. Application of the Doctrine of Davies v. Mann-Prior and Subsequent Negligence."-Outside of these, some other general prin

1 This section is cited in § 2741. Nulty, 64 Ill. App. 549; 3. c. 1 Chic. 2 Vol. I, § 169, et seq. 3 Ante, § 2722.

'Morrissey.v. Wiggins' Ferry Co., 43 Mo. 380; s. c. Thomp. Carr. Pass. 243; Tobin v. Omnibus Cable Co. (Cal.), 34 Pac. Rep. 124; Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818.

Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818; Atchison &c. R. Co. v. Hughes, 55 Kan. 491: s. c. 40 Pac. Rep. 919; Werner v. Chicago &c. R. Co., 105 Wis. 300; s. c. 81 N. W. Rep. 416; West Chicago St. R. Co. v. Mc

L. J. Wkly. 373.

Ante, § 2722.

'Tobin V. Omnibus Cable Co. (Cal.), 34 Pac. Rep. 124.

Atchison &c. R. Co. v. Hughes, 55 Kan. 491; s. c. 40 Pac. Rep. 919. In an action against a carrier to recover for personal injuries, an instruction that plaintiff's omission to look out for her own safety was not negligence, is erroneous: Savannah &c. R. Co. v. Flaherty, 110 Ga. 335; s. c. 35 S. E. Rep. 677.

This section is cited in §§ 3512, 3521, 3563, 3578, 3596.

ciples relating to contributory negligence should be considered. One of these is that the negligence of the plaintiff, or that of the person injured, does not bar recovery, unless it was, in theory of law, the proximate or direct cause of the injury. The doctrine of some of the courts that there can be no recovery of damages sustained through the negligence of the defendant where the plaintiff or person injured is in the least fault10 has not met with general concurrence, especially in the case of injuries to passengers sustained through the negligence of other carriers. On the contrary, the rule in which the courts generally concur is that, although the passenger's misconduct may have contributed remotely to the injury, yet if the carrier's misconduct was the immediate cause of it, and if by the exercise of prudence the carrier could have prevented it, he is not excused; and that it ought to be left to the jury to say whether, notwithstanding the imprudence of the passenger, the carrier could not, by the exercise of reasonable diligence, have averted the injury to the passenger." This doctrine is really an outgrowth of the doctrine of a leading case where a man had negligently hoppled his ass and left it grazing in the public highway, and where the servant of another man negligently drove his horse and wagon against the animal and killed it. Here it was held that, although it was an illegal act on the part of the plaintiff so to expose his animal to danger in the highway, yet if the servant of the defendant could nevertheless have avoided injuring it through the exercise of ordinary care, the plaintiff was entitled to recover damages.12 As the author has frequently suggested in other relations, the rule of law which protected the ass of Davies,13 the oysters of the town of Colchester,1 and the hogs of Kerwhaker,15 which protects travellers at railway crossings, and which is generally applied for the purpose of protecting either persons or property when negligently exposed to injury,-will protect a passenger upon the vehicle or premises of a common carrier, whenever the situation of the passenger is such that the rule can be made applicable. So applied, the rule, negatively stated, is that the carrier is not to be compelled to pay damages for an injury to the passenger where the negligence of the passenger contributed directly, proximately or materially to the injury, unless the carrier or his servants knew, or by

10 Vol. I. § 170.

11 Morrissey v. Wiggins Ferry Co., 43 Mo. 380; s. c. Thomp. Carr. Pass. 243; Carrico v. West Virginia &c. R. Co., 35 W. Va. 389; s. c. 14 S. E. Rep. 12; 11 Rail. & Corp. L. J. 64.

12 Davies v. Mann, 10 Mees. & W.

545; s. c. 2 Thomp. Neg., 1st ed., 1105. See Vol. I, § 235, et seq.

13 Davies v. Mann, supra.

14 Colchester v. Brooke, 7 Q. B. 339.

15 Kerwhaker v. Cleveland &c. R. Co., 3 Ohio St. 172; s. c. 1 Thomp. Neg., 1st ed., 472.

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due attention to their duties might have known,16 of the negligence of the passenger in time to have saved him from the injurious consequences of it. To give an apt illustration of the doctrine in the relation of carrier and passenger, it is a rule, as elsewhere seen, that if a passenger voluntarily puts himself in an improper or dangerous position on the vehicle of the carrier, he assumes the risk ordinarily incident to that position; but he does not thereby forfeit his right to care on the part of the carrier;18 and his misconduct does not excuse the carrier in failing to exercise at least ordinary care to avoid injuring him, after discovering his exposed position.19 But it can not escape attention that this doctrine, which is generally called into play in the case of collisions of vessels at sea, collisions of travellers on the highway, and collisions between travellers and railway trains, is of far less frequent application in the case of injuries to passengers through the negligence of the carrier. Again, the contributory negligence of the passenger is, in general, a defense to the carrier only where it can be applied, so to speak, as an offset to his negligence. Generally speaking, this defense has, no relevancy where the act of the carrier is an affirmative and unlawful act of trespass, as in the case of the ejection of a passenger from a railway train with excessive force and violence;20 though even here he would be precluded from recovering damages accruing from his subsequent negligence;21 and, on the other hand, his subsequent negligence might be pleadable in reduction of damages. 22

§ 2924. Whether Contributory Negligence in this Relation is a Substantive Defense which must be Pleaded and Proved. This question must be variously answered, according to the rule obtaining in the particular jurisdiction.23 In Iowa, the established doctrine is that a person seeking to recover damages of a common carrier for a personal injury, must prove, not only the negligence of the defendant, but that he did not, by his want of ordinary care, contribute to the injury. It was therefore held not error to refuse the following instruction: "The law presumes that a passenger, while being conveyed by the carrier, acts with ordinary care, and that presumption will

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16 Vol. I, § 239.

17 Post, § 2942, et seq.

18 Willmot v. Corrigan &c. R. Co., 106 Mo. 535; s. c. 17 S. W. Rep. 490.

19 Carrico v. West Virginia &c. R. Co., 35 W. Va. 389; s. c. 11 Rail. & Corp. L. J. 64; 14 S. E. Rep. 12.

"Chicago &c. R. Co. v. Bills, 118

VOL. 3 THOMP. NEG.-25

Ind. 221; s. c. 5 Rail. & Corp. L. J. 521; 20 N. E. Rep. 775.

21 Vol. I, § 251.

22 Vol. I, § 251.

23 Vol. I, § 364, et seq.

24 Patterson v. Burlington &c. R. Co., 38 Iowa 279; Murphy v. Chicago &c. R. Co., 45 Iowa 661; Bonce v. Dubuque Street R. Co., 53 Iowa 278.

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prevail, unless the evidence in the case shows to the contrary. There fore, in this case it will be presumed that Mrs. Bonce was acting with ordinary care and prudence at the time of the alleged injury, unless the contrary has been proved."

9925

$2925. Rule where the Inference of Contributory Negligence Arises out of the Plaintiff's Own Testimony.-But, outside of any question of pleading, or of the burden of proof, where an unavoidable inference of contributory negligence arises out of the testimony of the plaintiff and of his witnesses, it is plain that this will operate, as matter of law, to defeat his recovery, and that it would be a reproach to the administration of justice if it did not.26 When, therefore, a state of facts showing that the contributory negligence of the person injured was the efficient cause of the injury, arises out of the evidence of the plaintiff, the defendant, upon this evidence, is entitled to a nonsuit;27 but if he does not ask for this, and if the evidence which he himself introduces helps out the plaintiff's case, he will not, on account of any infirmity in the plaintiff's testimony, be entitled to a nonsuit at the close of the whole case.

§ 2926. Want of Care on the Part of the Passenger must Contribute Materially and Directly to the Injury.-That a want of ordinary or reasonable care on the part of the passenger must have contributed materially and directly to the injury in respect of which he sues, in order to defeat his right of action,28 is a legal truism which will find copious illustrations in this chapter. To illustrate the meaning of the proposition, let us suppose that the passenger is, contrary to the rules of the company, and in obvious indifference to his own safety, riding in a place of danger on a railway train; yet if his negligence in that particular does not contribute to his injury or death, it will not bar a recovery, as where a bridge breaks down and all on board the train are overwhelmed in a common calamity. A statement of the rule which is the same in substance, though not in words is, that in order to preclude a recovery by a passenger, for an injury received while riding on the vehicle of the carrier, he must himself have contributed "substantially or directly" to the injury. To embody this phrase in an instruction to the jury, in an action for damages for such an injury, has been held not erroneous."

25 Bonce v. Dubuque &c. R. Co., supra.

26 Vol. I, § 432.

28 Citizens' St. R. Co. v. Twiname, 111 Ind. 587; s. c. 13 N. E. Rep. 55. 20 Trumbull v. Erickson, 97 Fed.

27 Dietrich v. Baltimore &c. R. Co., Rep. 891. 58 Md. 347.

The

The meaning may be extracted from the facts of the case. plaintiff, a passenger in a crowded car of the defendant, gave up his seat to an old woman. An accident took place in which he was hurt. If he had retained his seat, he would not have been hurt. It was held that the act was not to be imputed to him as negligence, and was not the proximate cause of the injury which befell him;30 and the propriety of this conclusion is perfectly plain, when it is remembered that proximate cause is probable cause, and that remote cause is improbable cause, and when it is reflected that no one giving up his seat, in the exercise of a proper act of courtesy or humanity, to an old woman, could anticipate that by so doing he was placing himself in a position of greater danger. On a similar principle, it can not be regarded as negligence as matter of law, for a passenger on a train to leave his seat in the coach and stand on the platform of the baggage car just ahead of it; and if, while in this situation, he is shot by the accidental discharge of a pistol in the hands of the conductor of the train, he will not be precluded, by reason of his contributory negligence, from recovering damages from the company 31 And, on principle, even if such an act on the part of the passenger could be deemed negligent, it could not be regarded as the proximate cause of such an injury; since such an injury could not be anticipated by a passenger, and it might as well be visited upon him while seated in the coach, as while out upon the platform.

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§ 2927. Passenger Acting Erroneously under Impulse of Fear Produced by Negligence of the Carrier.32-It is a principle of obvious justice that one person can not impute negligence to the act of another, which act has been induced by the negligent or wrongful act or omission of the former; and this rule applies as between carrier and passenger. It follows that where the passenger acts erroneously under a sudden impulse of fear produced by the negligence of the carrier or his servants, in consequence of which erroneous action the passenger is killed or injured, whereas he would have escaped unharmed but for the same,-there may be a recovery of damages; for here, though the error of the passenger is nearer in time to the hurt which he receives than is the negligence of the carrier, yet in a juridical sense it is more remote. Perhaps it is a better statement of this doctrine to say that, in theory of law, the passenger is not guilty of contributory negligence at all, but that his error is the natural, and

Trumbull v. Erickson, 97 Fed. Rep. 891.

1 Gerstle v. Union &c. R. Co., 23 Mo. App. 361.

32 This section is cited in §§ 2951, 2983, 3025, 3558, 3631.

33 Schultze v. Missouri &c. R. Co., 32 Mo. App. 438.

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