Iii.—: Contributory Negligence.

Actionable negligence must be proximate cause of harm: where plaintiff’s own negligence is immediate cause, no remedy. In order that a man’s negligence may entitle another to a remedy against him, that other must have suffered harm whereof this negligence is a proximate cause. Now I may be negligent, and my negligence may be the occasion of some one suffering harm, and yet the immediate cause of the damage may be not my want of care but his own. Had I been careful to begin with, he would not have been in danger; but had he, being so put in danger, used reasonable care for his own safety or that of his property, the damage would still not have happened. Thus my original negligence is a comparatively remote cause of the harm, and as things turn out the proximate cause is the sufferer’s own fault, or rather (since a man is under no positive duty to be careful in his own interest) he cannot ascribe it to the fault of another. In a state of facts answering this general description the person harmed is by the rule of the common law not entitled to any remedy. He is said to be “guilty of contributory negligence;” a phrase well established in our forensic usage, though not free from objection. It rather suggests, as the ground of the doctrine, that a man who does not take ordinary care for his own safety is to be in a manner punished for his carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one, nor supported by modern authority, and it is already distinctly rejected by writers of no small weight. And it stands ill with the common practice of our courts, founded on constant experience of the way in which this question presents itself in real life. “The received and usual way of directing a jury . . . is to say that if the plaintiff could, by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant’s negligence, he cannot recover”. That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or could not have happened; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant’s. Again the penal theory of contributory negligence fails to account for the accepted qualification of the rule, “namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him”. And in the latest leading case, of which there will be more to say, the criterion of what was the proximate cause of the injury is adopted throughout.

The element of truth which the penal theory, as I have called it, presents in a distorted form, is that the rule is not merely a logical deduction, but is founded in public utility. “The ultimate justification of the rule is in reasons of policy, viz. the desire to prevent accidents by inducing each member of the community to act up to the standard of due care set by the law. If he does not, he is deprived of the assistance of the law”.

Tuff v. Warman. The leading case which settled the doctrine in its modern form is Tuff v. Warman. The action was against the pilot of a steamer in the Thames for running down the plaintiff’s barge; the plaintiff’s own evidence showed that there was no look-out on the barge; as to the conduct of the steamer the evidence was conflicting, but according to the plaintiff’s witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the want of a look-out was negligence on the part of the plaintiff, and if so, whether it “directly contributed to the accident.” This was objected to as too favourable to the plaintiff, but was upheld both in the full Court of Common Pleas and in the Exchequer Chamber. In the considered judgment on appeal it is said that the proper question for the jury is “whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened.” But negligence will not disentitle the plaintiff to recover, unless it be such that without it the harm complained of would not have happened; “nor if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

Radley v. L. & N. W. R. Co. In Radley v. London and North Western Railway Co., this doctrine received a striking confirmation.

The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs’ men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those previously left on the siding. Some resistance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs’ servants ought to have moved the first set of trucks to a safe place, or at any rate not have left the piled-up truck in a dangerous position. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident “happened by the negligence of the defendants’ servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants’ servants.”

On these facts and under this direction the jury found that there was contributory negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of Lords it was held that there was a question of fact for the jury, but the law had not been sufficiently stated to them. They had not been clearly informed, as they should have been, that not every negligence on the part of the plaintiff which in any degree contributes to the mischief will bar him of his remedy, but only such negligence that the defendant could not by the exercise of ordinary care have avoided the result.

“It is true that in part of his summing-up, the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

“In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. The substantial defect of the learned judge’s charge is that that question was never put to the jury”.

“Proximate” or “decisive” cause? This leaves no doubt that the true ground of contributory negligence being a bar to recovery is that it is the proximate cause of the mischief; and negligence on the plaintiff’s part which is only part of the inducing causes will not disable him. I say “the proximate cause,” considering the term as now established by usage and authority. But I would still suggest, as I did in the first edition, that “decisive” might convey the meaning more exactly. For if the defendant’s original negligence was so far remote from the plaintiff’s damage as not to be part at least of its “proximate cause” within the more general meaning of that term, the plaintiff would not have any case at all, and the question of contributory negligence could not arise. We shall immediately see, moreover, that independent negligent acts of A. and B. may both be proximate in respect of harm suffered by Z., though either of them, if committed by Z. himself, would have prevented him from having any remedy for the other. Thus it appears that the term “proximate” is not used in precisely the same sense in fixing a negligent defendant’s liability and a negligent plaintiff’s disability.

The plaintiff’s negligence, if it is to disable him, has to be somehow more proximate than the defendant’s. It seems dangerously ambiguous to use “proximate” in a special emphatic sense without further or otherwise marking the difference. If we said “decisive” we should at any rate avoid this danger.

Self-created disability to avoid consequences of another’s negligence. It would seem that a person who has by his own act or default deprived himself of ordinary ability to avoid the consequences of another’s negligence can be in no better position than if, having such ability, he had failed to avoid them; unless, indeed, the other has notice of his inability in time to use care appropriate to the emergency; in which case the failure to use that care is the decisive negligence. A. and B. are driving in opposite directions on the same road on a dark night. B. is driving at a dangerous speed, and A. is asleep, but B. cannot see that he is asleep. Suppose that A., had he been awake, might have avoided a collision by ordinary care notwithstanding B.’s negligence. Can A. be heard to say that there is no contributory negligence on his part because he was asleep? It seems not. Suppose, on the other hand, that the same thing takes place by daylight or on a fine moonlight night, so that B. would with common care and attention perceive A.’s condition. Here B. would be bound, it seems, to use special caution no less than if A. had been disabled, say by a sudden paralytic stroke, without default of his own. So if a man meets a runaway horse, he cannot tell whether it is loose by negligence or by inevitable accident, nor can this make any difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required.

Earlier illustrations: Davies v. Mann. Cases earlier than Tuff v. Warman are now material only as illustrations. A celebrated one is the “donkey case,” Davies v. Mann. There the plaintiff had turned his ass loose in a highway with its forefeet fettered, and it was run over by the defendant’s waggon, going at “a smartish pace.” It was held a proper direction to the jury that, whatever they thought of the plaintiff’s conduct, he was still entitled to his remedy if the accident might have been avoided by the exercise of ordinary care on the part of the driver. Otherwise “a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road”. With this may be compared the not much later case of Mayor of Colchester v. Brooke, where it was laid down (among many other matters) that if a ship runs on a bed of oysters in a river, and could with due care and skill have passed clear of them, the fact of the oyster-bed being a nuisance to the navigation does not afford an excuse. The facts of Davies v. Mann suggest many speculative variations, and the decision has been much and not always wisely discussed in America, though uniformly followed in this country.

Butterfield v. Forrester. Butterfield v. Forrester is a good example of obvious fault on both sides, where the plaintiff’s damage was immediately due to his own want of care. The defendant had put up a pole across a public thoroughfare in Derby, which he had no right to do. The plaintiff was riding that way at eight o’clock in the evening in August, when dusk was coming on, but the obstruction was still visible a hundred yards off: he was riding violently, came against the pole, and fell with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could, they were to find for the defendant; and they did so. The judge’s direction was affirmed on motion for a new trial. “One person being in fault will not dispense with another’s using ordinary care for himself.” Here it can hardly be said that the position of the pole across the road was not a proximate cause of the fall. But it was not the whole proximate cause. The other and decisive cause which concurred was the plaintiff’s failure to see and avoid the pole in his way.

On the whole, then, if the plaintiff’s “fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong”. On the other hand, if the defendant’s fault has been the proximate cause he is not excused merely by showing that the plaintiff’s fault at some earlier stage created the opportunity for the fault which was that cause. If it is not possible to say whether the plaintiff’s or the defendant’s negligence were the proximate (or decisive) cause of the damage, it may be said that the plaintiff cannot succeed because he has failed to prove that he has been injured by the defendant’s negligence. On the other hand it might be suggested that, since contributory negligence is a matter of defence of which the burden of proof is on the defendant, the defendant would in such a case have failed to make out his defence, and the plaintiff, having proved that the defendant’s negligence was a proximate cause if not the whole proximate cause of his damage, would still be entitled to succeed. The defendant must allege and prove not merely that the plaintiff was negligent, but that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant’s negligence. It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common law, whether reasonably or not, has made no provision for apportioning damages in such cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that “hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are simultaneous and those where they are successive. In regard to the former class, such as Dublin, Wicklow & Wexford Ry. Co. v. Slattery, or the case of two persons colliding at a street corner, the rule is, that if the plaintiff could by the exercise of ordinary care have avoided the accident he cannot recover. In regard to the latter class of cases, such as Davies v. Mann and Radley v. L. & N. W. Ry. Co., the rule may be stated thus: that he who last has an opportunity of avoiding the accident, notwithstanding the negligence of the other, is solely responsible. And the ground of both rules is the same: that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury”.

Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. “It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or at all events not apart from B.” Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A. to answer to Z.: “You were not injured by my negligence at all, but only and wholly by B.’s.” It seems to be a question of fact rather than of law what respective degrees of connexion, in kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arrived at, it is now quite clear that Z. can sue both A. and B..

The exploded doctrine of “identification.” In a case now overruled, a different doctrine was set up which, although never willingly received and seldom acted on, remained of more or less authority for nearly forty years. The supposed rule was that if A. is travelling in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.’s servants, and A. is injured in a collision with another vehicle belonging to Z., and under the control of Z.’s servants, which collision is caused partly by the negligence of B.’s servants and partly by that of Z.’s servants, A. cannot recover against Z. The passenger, it was said, must be considered as having in some sense “identified himself” with the vehicle in which he has chosen to travel, so that for the purpose of complaining of any outsider’s negligence he is not in any better position than the person who has the actual control. It is very difficult to see what this supposed “identification” really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to be answerable for the negligence of the driver, guard, conductor, master, or whoever the person in charge may be. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Yet the eminent judges who invented “identification” must have meant something. They would seem to have assumed, rather than concluded, that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant’s negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled—of course within the limits set by the general rules as to remoteness of damage—to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage.

The phrase “contributory negligence of a third person,” which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing him harm by negligence, may prove if he can that not his negligence, but wholly and only John’s, harmed Andrew. It is useless for him to show that John’s negligence was “contributory” to the harm, except so far as evidence which proved this, though failing to prove more, might practically tend to reduce the damages.

It is impossible to lay down rules for determining whether harm has been caused by A.’s and B.’s negligence together, or by A.’s or B.’s alone. The question is essentially one of fact. There is no reason, however, why joint negligence should not be successive as well as simultaneous, and there is some authority to show that it may be. A wrongful or negligent voluntary act of Peter may create a state of things giving an opportunity for another wrongful or negligent act of John, as well as for pure accidents. If harm is then caused by John’s act, which act is of a kind that Peter might have reasonably foreseen, Peter and John may both be liable; and this whether John’s act be wilful or not, for many kinds of negligent and wilfully wrongful acts are unhappily common, and a prudent man cannot shut his eyes to the probability that somebody will commit them if temptation is put in the way. One is not entitled to make obvious occasions for negligence. A. leaves the flap of a cellar in an insecure position on a highway where all manner of persons, adult and infant, wise and foolish, are accustomed to pass. B. in carelessly passing, or playing with the flap, brings it down on himself, or on C. In the former case B. has suffered from his own negligence and cannot sue A. In the latter B. is liable to C. but it may well be that a prudent man in A.’s place would have foreseen and guarded against the risk of a thing so left exposed in a public place being meddled with by some careless person, and if a jury is of that opinion A. may also be liable to C.. Where A. placed a dangerous obstruction in a road, and it was removed by some unexplained act of an unknown third person to another part of the same road where Z., a person lawfully using the road, came against it in the dark and was injured, A. was held liable to Z., though there was nothing to show whether the third person’s act was or was not lawful or done for a lawful purpose.

Accidents to children in custody of adult. Another special class of cases requires consideration. If A. is a child of tender years (or other person incapable of taking ordinary care of himself), but in the custody of M., an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M., Z. will not be liable to A. if M.’s negligence alone was the proximate cause of the mischief. Therefore if M. could, by such reasonable diligence as is commonly expected of persons having the care of young children, have avoided the consequences of Z.’s negligence, A. is not entitled to sue Z.: and this not because M.’s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.’s negligence, and not something else for which Z. is not answerable and which Z. had no reason to anticipate, should be the proximate cause.

Children, &c., unattended. Now take the case of a child not old enough to use ordinary care for its own safety, which by the carelessness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian make any difference to the legal result? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant’s duty can be measured by his notice of special risk and his means of avoiding it; there is no reason for making it vary with the diligence or negligence of a third person in giving occasion for the risk to exist. If the defendant is so negligent that an adult in the plaintiff’s position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff’s helplessness, and fails to use such special precaution as is reasonably possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plaintiff to be incapable of taking care of himself, and has used such diligence as would be sufficient towards an adult; or if, being aware of the danger, he did use such additional caution as he reasonably could; or if the facts were such that no additional caution was practicable, and there is no evidence of negligence according to the ordinary standard, then the defendant is not liable.

No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone. In America there have been such decisions in Massachusetts, New York, and elsewhere: “but there are as many decisions to the contrary”: and it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries they are right.

Child v. Hearn. In one peculiar case the now exploded doctrine of “identification” was brought in, gratuitously as it would seem. The plaintiff was a platelayer working on a railway; the railway company was by statute bound to maintain a fence to prevent animals from straying off the adjoining land; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep out pigs. Some pigs of the defendant’s found their way on to the line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff’s case appears to be bad on one or both of two grounds; there was no proof of actual negligence on the defendant’s part, and even if his common-law duty to fence was not altogether superseded, as regards that boundary, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their duty; and also the damage was too remote. But the ground actually taken was “that the servant can be in no better position than the master when he is using the master’s property for the master’s purposes,” or “the plaintiff is identified with the land which he was using for his own convenience.” This ground would now clearly be untenable.

Admiralty rule of dividing loss. The common law rule of contributory negligence is unknown to the maritime law administered in courts of Admiralty jurisdiction. Under a rough working rule commonly called judicium rusticum, and apparently derived from early medieval codes or customs, with none of which, however, it coincides in its modern application, the loss is equally divided in cases of collision where both ships are found to have been in fault. “The ancient rule applied only where there was no fault in either ship”; as adopted in England, it seems more than doubtful whether the rule made any distinction, until quite late in the eighteenth century, between cases of negligence and of pure accident. However that may be, it dates from a time when any more refined working out of principles was impossible. As a rule of thumb, which frankly renounces the pretence of being anything more, it is not amiss, and it appears to be generally accepted by those whom it concerns, although, as Mr. Marsden’s researches have shown, for about a century it has been applied for a wholly different purpose from that for which it was introduced in the older maritime law, and in a wholly different class of cases. By the Judicature Act, 1873, the judicium rusticum is expressly preserved in the Admiralty Division.