§ 167. The duty implied by law. In order to be actionable as negligence, the duty that is violated must be one implied by law, independent of contract. Though there may be a contract involved, yet the wrong done must be so far separable from the contract as to give an independent right of action. For example, a man makes a contract with a railroad company to carry him and his servant. There is no contract with the servant. But there is the duty implied by law from the relation of passenger and carrier. For any injury the servant may recover, because this duty implied by law has been violated. And the master, if injured, may recover damages on the same ground. Though there was a contract with the master, there was also the duty implied by law from the relation of passenger and carrier. Hence the master could recover for the negligence as a tort, or he could recover for the breach of contract.

§ 168. The damage.-Unless some substantial injury was done there can be no action for negligence. Damage is an essential element; and it is obvious that the damage must have been to the plaintiff specially. If from any careless act the plaintiff is injured only in the same kind and degree as the whole public there will be no cause of action.

§ 169. Cause and effect.-The connection of cause and effect between the breach of duty and the injury must be established, otherwise the negligence is not actionable. It must be shown that but for the breach of duty the injury would not have happened. But while this is necessary to be shown, it is not enough. The plaintiff must go further and show that the breach of duty was an efficient cause. For example, if a passenger carrier is guilty of delay so that he arrives at a place on the road

where a sudden storm injures the passenger, it might be evident that the injury would not have happened but for the negligent delay; and yet it is also clear that such an injury might equally well happen where the carrier is unusually diligent. The storm and not the carrier's delay is the efficient cause of the injury. It is a uniform rule, however, that if the defendant's act was an efficient cause, he is not relieved by the concurrence of other causes, whether they be called the negligence of others, inevitable accident or the act of God.

§ 170. The legal connection.-Difficulty lies not only in tracing a casual connection, but also in determining whether the connection is sufficiently close to be cognizable by the law. Theoretically there is no end to the effect of an act, and no cause back of which another cause may not be found. The law, however, is practical and draws lines beyond which the search for cause or effect shall not be prosecuted. It requires that the act shall be shown to be the proximate, not the remote cause of the injury.

§ 171. Definition of proximate cause.-Proximate cause is that which in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred.

A remote cause is one which has so far expended itself that its influence in producing the injury is too minute for the law's notice; or a cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof.

§ 172. Plaintiff's own conduct. In the search for the causes of an injury, it usually happens that some conduct of the person injured must be considered as an

agency. The question arises, how far does this affect the liability of others?

It is obvious there is but one way in which plaintiff's conduct can have any effect in relieving other causes of injury, and that is by being itself a cause. In determining whether it is or is not a cause, the plaintiff's conduct is to be considered and weighed as a fact, in the same way with all the other facts in the case. And the same rules governing casual connection apply. If no relation of cause and effect can be shown between plaintiff's conduct and the injury, the right of action against others is unaffected, it matters not what may be plaintiff's fault or innocence in such conduct.

If, on the other hand, plaintiff's conduct, whether wrongful or not, is shown to be an efficient and superseding cause, it will be deemed the sole cause. Between these two are the cases in which plaintiff's conduct is an efficient, but not a superseding cause, and these embrace the subject of plaintiff's contributory fault. It should be noted at the outset that no question can arise as to plaintiff's fault, except upon the assumption that there has been fault in the defendant; for if the defendant is innocent, the case is at an end.

It is a general rule, founded on the maxim, "no man shall take advantage of his own wrong," that if one is injured by the negligence of another, he can not recover damages unless he is himself free from fault proximately contributing to the injury. This fault in plaintiff may consist (1) in an act unlawful in itself, (2) in negligence only.

§ 173. Plaintiff's unlawful act.-If an unlawful act of the plaintiff be an efficient proximate cause of the injury to him, he can not recover against another person whose negligent act was also an efficient cause.

For

example, if two thieves break into a house with drawn pistols, and one by negligence shoot the other, no action could be maintained. It is essential, however, that the plaintiff's unlawful act be proximate in causation; for if the unlawful act amounts only to a condition or remote cause, it will not bar his action. For instance, though traveling on Sunday be made unlawful by statute, it would not bar an action against one who should negligently frighten plaintiff's horse on Sunday. For it is not a natural sequence of Sunday travel that such injury should happen.

§ 174. Contributory negligence. The common-law rule was that there could be no recovery for negligence of another if the injured person by his negligence proximately contributed to the injury. This rule has been adopted as the law in the federal courts and in the courts of nearly all of the states. Wherever the common-law rule prevails any negligence of the plaintiff that proximately contributes as a cause of the injury will defeat a recovery. In some states plaintiff's negligence is for the defense to prove, in others the plaintiff must show its absence.

§ 175. Tests of contributory negligence.-In ascertaining whether negligence exists, the plaintiff's conduct must be viewed in the light of all other facts in the case, and in general is subject to the same tests as is the defendant's conduct. There must have been a failure by plaintiff to use ordinary care, or the accident is, so far as his responsibility goes, inevitable. There must have been a want of such ordinary care as was required under the particular circumstances. The kind and degree of care depends on the facts in each case. The plaintiff's negligence may have been an act or omission. Subject

to the exceptions made under the doctrine of imputable negligence, which will be hereafter considered, the plaintiff must have been legally responsible for his conduct. Voluntary intoxication does not relieve the plaintiff from exercising all the care he should have exercised if sober. Physical infirmities are taken into account, and while plaintiff is not expected to use powers that he does not possess, he is bound so far as possible to make up for defective powers by the use of those he has, and it is essential that the plaintiff's conduct be a proximate cause of the injury.

§ 176. Plaintiff's knowledge of danger.-The fact that plaintiff knew there was danger is not conclusive that he was guilty of contributory negligence. A man may be fully conscious of danger, and yet be in the exercise of ordinary care under the circumstances. Some risks must always be taken; the question is, what risks will a prudent man take?

§ 177. Danger incurred to save life or in discharge of duty. One who is saving the life of another in peril from the defendant's negligence is not guilty of contributory negligence, unless the attempt to save is so rash as to be practically certain to result in injury, or, as is sometimes held, unless the person to be saved was himself in the wrong. A son who tried to save the life of his father, who was negligently on a railroad track, was not allowed to recover against the railroad company for its negligence.

One charged with the duty of caring for others is not guilty of contributory negligence even though he discharge the duty in the face of certain danger, provided, of course, that he could not have done his duty in any But a person so injured must himself have

safer way.