13.—: Plaintiff a wrong-doer.

Harm suffered by a wrong-doer: doubtful whether any special disability. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer. But there is no such general rule of law. If there were, one consequence would be that an occupier of land (or even a fellow trespasser) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook a trespasser who was wounded by a spring-gun set without notice was held entitled to maintain his action. And generally, “a trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained”. It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.’s possession were lawful? Suppose there were no statutory regulation at all: still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong-doing, such as trespass to land, ever has in itself the effect now under consideration. Almost every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter, natural and probable.

Conflict of opinion in United States in cases of Sunday travelling. In America there has been a great question, upon which there have been many contradictory decisions, whether the violation of statutes against Sunday travelling is in itself a bar to actions for injuries received in the course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States.

The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal conduct of the plaintiff which contributed directly and proximately to the injury suffered by him is equivalent, as matter of law, to contributory negligence.

Cause of action connected with unlawful agreement. It is a rule not confined to actions on contracts that “the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party”: but its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar.