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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 causal 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.

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It is a general rule, founded on the maxim, man shall take advantage of his own wrong, 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 (1st) in an act unlawful in itself, (2d) in negligence only.

§ 425. 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 amount only to a condition or remote cause, it will not bar his action. For instance, though trav eling 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.

§ 426. 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. Modifications exist in Illinois, Georgia, Kansas and Tennessee, under which there may be a recovery if the defendant was grossly negligent and the plaintiff negligent only to a slight degree. 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.

§ 427. 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 classification into slight, ordinary and gross is generally abandoned here, as it is where defendant's negligence is the question. 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.

§ 428. 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?

§ 429. 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 that duty in the face of certain danger, provided, of course, that he could not have done his duty in any safer way. But a person so injured must himself have been free from any fault in creating the danger. So, an engineer who stays at his post to save passengers from a collision is not to be deemed guilty of contributory negligence, unless, for instance, he violated orders in starting and thereby brought on the collision.

§ 430. Persons of defective powers.-As has been shown, persons of defective powers are not guilty of negligence for failing to exercise more care than they are capable of exercising. This is equally true where the question is upon contributory negligence of such persons. It naturally follows that a correspondingly higher degree of care is required from all who deal with such persons. An act that would be ordinarily careful, if done toward a grown person, might be negligent if done toward a child. It is always presupposed, however, that the defective condition of the person was or ought to have been known. So that, an engineer would not be negligent for expecting a man to step off the track when he sounded the

whistle, without checking speed, whereas, if he had notice that the man was deaf, it would be negligence.

§ 431. Misleading conduct.-A plaintiff is not chargeable with contributory negligence, whose erroneous act was caused or induced by the misleading conduct of the defendant. If he has a right to rely and does rely upon defendant's verbal directions or conduct, assuring him of safety, he is blameless, provided the danger is not obvious; and where by the defendant's negligence a sudden danger confronts the plaintiff, he is not in fault if in the haste and alarm he does not choose the safest course, or even if he chooses the only dangerous course.

§ 432. Imputable negligence.-The principle on which the doctrine of imputable negligence rests is that the innocent person and the guilty person are identified as in a joint enterprise, by agency or by having the right to control. The case of saver and saved has been alluded to; the negligence of the one saved being imputed to the saver. The negligence of a servant is imputed to the master, for he has the right to control. Partners, whose goods are injured by negligence of another, can not recover if the negligence of one partner contributed, for his negligence is imputable to all. The cases of carrier and passenger, and of children, require a few words

more.

§ 433. Passenger and carrier-Imputed negligence. The old English rule, established by the case of Thorogood v. Bryan, was that in an action. by a passenger against a third person for a negligent injury, the contributory negligence of the carrier will be imputed to the passenger. It was assumed

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