ing the burden of proof still rests on him, however. That is, the jury are authorized to draw the inference that the defendant was negligent, but are not compelled to do so."

90

65. Same subject-Illustrations.-In Carmody v. Boston Gas Light Co.," gas escaped from the defendant's pipes and was inhaled by the plaintiff while he was asleep. The plaintiff asked the judge to rule that as a matter of law the breaking of a pipe and the consequent escape of gas proved negligence. The court refused to do so, but ruled that these facts were consistent enough with negligence to justify the jury in finding upon them alone that the defendant was negligent. In the following sorts of situations the doctrine has been applied: where a building or a part of a building has fallen; where a train has become uncoupled, or a collision has occurred, or a car has been derailed; where a passenger has been thrown down by a sudden lurch; where sparks have escaped from a locomotive; and many others.

90 Palmer Brick Co. v. Chenall, 119 Ga. 837, 47 S. E. 329. 91 162 Mass. 539, 39 N. E. 184.

CHAPTER III.

CONTRIBUTORY NEGLIGENCE.

66. Meaning of the term.-Although it appears in a given case that the defendant owed the plaintiff a duty to use due care, that he violated this duty and that the plaintiff suffered an injury due in a legal sense to this violation of duty, still the plaintiff will fail of a recovery if it further appears (1) that his own conduct was not that which a reasonably prudent and careful man would have used under the circumstances, and (2) that this conduct contributed to bring about the harmful result. Such conduct on the part of the plaintiff is called contributory negligence. It will be noticed that we are not concerned here with any question of legal duty on the part of the plaintiff owed to anyone else. The rule is simply that he is barred from recovering for his injury under the foregoing circumstances.

Thus, if one should close his eyes and walk across a crowded thoroughfare, he could not recover from the driver of a vehicle whose attention was temporarily diverted and who thus negligently ran into him. One who visits a menagerie and prods a wild animal into fury cannot complain of an injury resulting from the animal's attack. One who jumps upon or from a swiftly moving car may be barred by this negligence, and so on.

67. Amount of negligence that will bar. It is immaterial whether the plaintiff's conduct falls far short of that of a reasonably prudent and careful man under the same circumstances, or moderately so, or only slightly so. In any of the three events his conduct is negligent, and his negligence is what bars him from a recovery. Of course, if his conduct does not fall short of this standard, he is not guilty of any negligence and he is not barred. In Illinois, there formerly existed a doctrine that the negligence of the defendant and the negligence of the plaintiff should be compared and that the plaintiff should not be barred if his negligence was "slight" and that of the defendant "gross." This doctrine has now been discarded everywhere,92 excepting that it has been embodied in some modern statutes relating to employees.93

68. Degree of contribution that will bar.-While the law will not look at the degree of the plaintiff's dereliction, it may look at the nature of the connection between his negligence and the injury. The common-law rule was that the plaintiff was entirely barred if his act contributed essentially to his injury. Many courts have even stated that he is barred if his act contributed "in the least degree" to his injury. But in determining whether or not the plaintiff's act really did contribute at all to his injury or whether his own negligence was so far remote as

94

92 City of Macon v. Holcomb, 205 Ill. 643, 69 N. E. 79. But if the defendant's act was wilful, the plaintiff is not barred by his own negligence. See §§ 51 and 79.

93 Wisconsin, Laws of 1907, chap. 254, p. 496, is typical.

94 Neal v. Gillett, 23 Conn. 437.

to be in no just sense a contributing factor, it is often necessary to examine the relation and character of his negligence and that of the defendant, as well as the time when each arose and the possibility of each party's having avoided the result. If his negligence did contribute at all to his injury, he cannot recover, but these inquiries go deeper and ask, "Did his negligence really contribute to his harm?”

95

69. Davies v. Mann.-In the case of Davies v. Mann, 25 there was first enunciated a doctrine that has materially modified the law's conception of what it means to "contribute" to the injury. Davies had fettered the forefeet of an ass, and had turned him into a public highway. Mann's team, the driver closely following, came down the small hill at the foot of which the ass was grazing, ran into the animal and killed it. Mann set up as a defense that Davies was guilty of contributory negligence in fettering the animal and turning it into the highway. Now, of course, the plaintiff's negligence had something to do with the injury, that is, it "contributed" to it, in a way, according to previous common law conceptions. Yet, if the defendant had deliberately run over the ass, the plaintiff could have recovered," because in no just sense could it be then said that there was any other cause of the injury than the defendant's own wilful conduct. But, although the defendant's servant did not wilfully run the ass down, yet, if he saw the ass there in time to avoid hurting him and notwithstanding was thereafter neg

95 10 M. & W. 546 (Eng.), LEADING ILLUSTRATIVE CASES. 96 § 52.

ligent, he really had control of the situation and the plaintiff's prior conduct would here, too, seem to be no longer a cause of the result that happened."7

It would be the duty of the servant thus situated to use the degree of care which a reasonably prudent and careful man would use under the circumstances before him, these circumstances now involving an observed and existing peril to the ass. If he had time to act carefully, but instead acted negligently, it would seem that the real cause of the injury was the servant's own failure to then use due care and not at all the plaintiff's former act in fettering the ass and turning him into the highway.

70. "The last clear chance."-The court instructed the jury that if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the servant, they should find for the plaintiff; and the jury so found. Literally taken, such a statement of the rule would completely overturn the whole doctrine of contributory negligence, for in every instance of negligent conduct, if the defendant had not been negligent, the injury would not have occurred; that is, "he could have avoided the accident by the exercise of due care." This is exactly the gist of every suit for negligence, and what the plaintiff must in the first instance show to fix liability even when the defendant has not plead contributory negligence. Literally taken, then, to hold the defendant liable, this statement of the rule would require nothing more to be shown in a case involving contributory negligence than in one with

97 O'Brien v. McGlinchy, 68 Me. 552. Compare § 44.