if slightly negligent, observed all the care the law requires of him; and where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence for which the law charges responsibility. . . . And so the two degrees of negligence (if the person observing ordinary care has been at all negligent), when compared with each other, fall within the opposite extremes of negligence, legally considered. . . . From the ruling in the numerous cases to which we have referred, the Court has not understood that the rule of comparative negligence changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety, and authorizing him to recover for such injuries where he has observed such care. And it will be quite apparent that it was not intended by the judges who decided the Jacobs case, and the earlier cases following the ruling in that case, that the rule of comparative negligence, as then announced, was to have that effect, by reference to those cases and to different expressions of opinions by those judges. . . There was, therefore, no error in the instruction as given. If either party had felt it to be necessary to have gone further, and explained to the jury that ordinary care does not exclude the idea of all negligence, however slight, but that the plaintiff was entitled to recover, notwithstanding the intestate might have been slightly negligent, provided that defendant was guilty of negligence which, in comparison with it, was gross, the Court should have been requested to so instruct the jury. Such an instruction might, without impropriety, have been given. It was not indispensable. . . . 662. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY Co. v. HESSIONS. (1894, 150 III. 546, 555.) BAKER, J. The objection to the third instruction is not well taken, for the reason that it requires the jury to believe, from the evidence, that plaintiff's intestate was in the exercise of ordinary care for his own safety, and that the injury resulted from the negligence of the defendant. Slight negligence is not necessarily incompatible with due and ordinary care, and the effect of the instructions was to so inform the jury; and while the instruction attempts to state the doctrine of comparative negligence laid down in Galena and Chicago Union Railroad Co. v. Jacobs, 20 Ill. 478, and subsequent cases following that decision, it does not vitiate the instruction. We have repeatedly held, in effect, in the later decisions, beginning with Calumet Iron and Steel Co. v. Martin, 115 Ill. 358, that the doctrine of comparative negligence, as announced in the earlier cases, was no longer the law of this State, and it is to be no longer regarded as a correct rule of law applicable in cases of this character. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Mansfield v. Moore, 124 id. 133.) The doctrine announced in the later decisions, as applied to this class of cases, requires, as a condition to recovery by the plaintiff, that the person injured be found to be in the exercise of ordinary care for his own safety, and that the injury resulted from the negligence of the defendant.. ... 663. LANARK v. DOUGHERTY. (1894, 153 Ill. 163, 165.) MAGRUDER, J. It is said, of two of these instructions, that they ignore the rule of comparative negligence. The doctrine of comparative negligence is no longer the law of this Court. The instructions in the present case require the jury to find that the plaintiff was exercising ordinary care, and that the defendant was guilty of such negligence as produced the injury. This was sufficient, without calling the attention of the jury to any nice distinctions between degrees of care or of negligence.1 . . . SUB-TOPIC E. DEFENDANT'S OPTION NOT TO AVOID THE HARM (LAST CLEAR CHANCE) 664. DAVIES v. MANN EXCHEQUER. 1842 CASE for negligence. . . . 10 M. & W. 546 At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore-feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of a road about eight yards wide, when the defendant's wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40s. Godson now moved for a new trial, on the ground of misdirection. . . . The principle of law, as deducible from the cases is, that where an accident is the result of faults on both sides, neither party can maintain an action. LORD ABINGER, C. B. I am of opinion that there ought to be no rule in this case. PARKE, B. This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company, 3 M. & W. 246, where, as appears to me, the correct rule is laid down concerning 1 [NOTES: "Negligence - Gross and Ordinary Negligence." (C. L. R., XI, 185.) "Comparative Negligence." (M. L. R., IX, 444.) ESSAYS: A. B. Davidson, "Comparative Negligence in Illinois." (1895, Northwestern Law Review, III, 93.) negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant's negligence. . . . The judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey's being there was the immediate cause of the injury. . . . Were this not so, 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. GURNEY, B., and ROLFE, B., concurred. Rule refused. 665. TANNER'S EXECUTOR v. LOUISVILLE & NASHVILLE RAILROAD COMPANY SUPREME COURT OF ALABAMA. 1877 60 Ala. 621 APPEAL from the Circuit Court of Limestone. Tried before the Hon. W. B. WOOD. This action was brought by Samuel Tanner, as the executor of the last will and testament of Peterson Tanner, deceased, against the Louisville & Nashville Railroad Company, to recover damages for the alleged wrongful act and negligence of the defendant's agents and servants, by means whereof, in September, 1872, plaintiff's testator was run over and killed by an engine and train of cars; and was commenced on the 29th August, 1873. The defendant pleaded, 1st, not guilty, . . . 3d, "that the injury to and death of said Peterson Tanner, in said complaint complained of, would not have occurred without his fault or negligence, and that his fault and negligence, above in this plea referred to, contributed to produce the said injury to and death of said Peterson Tanner." The plaintiff demurred to the second and third pleas, assigning as ground of demurrer to the third, “that mere negligence on the part of plaintiff's testator would not relieve defendant of responsibility in this action. . It appeared that the deceased, on the morning of the day on which he was killed, left his store in the town of Athens, on horseback, for the purpose of examining and marking some cross-ties, which he and his partner were delivering to the railroad company, at different points along the track, by contract between them and the company. He was riding on the track, about eight o'clock in the morning, near a crossing called the "Canada Crossing," when a train approached, consisting of an engine, tender, and one caboose car, coming from the direction of Athens; and he continued on the track, looking back at the train, and increasing the speed of his horse, until within fifty yards of the crossing, near or at the mouth of the cut in which he was, when his horse became unmanageable, and threw him, on or near the side of the track, in front of the engine, and he was run over and injured, and died two days thereafter. The only eye-witness of the accident were the persons on the train, servants of the railroad company, whose depositions were taken by the defendant. Upon all the evidence adduced, the Court charged the jury— “If you find from the evidence that ordinary care and diligence were not used by the engineer, or other person running the engine, and that the injury to Tanner was caused wantonly and intentionally, then, although Tanner may have been guilty of negligence in going on the track, the plaintiff may recover damages. ... The Court charged the jury, also, at the request of the plaintiff in writing, as follows: "4. If the agents of the defendant could have prevented the injury, by the use of ordinary care and prudence, it was their duty to do it, even if the injured party acted with carelessness and incaution." The Court refused the following charges, which were asked by the plaintiff in writing: "1. If the agents of the defendant did not, on perceiving Mr. Tanner, apply the brakes, and reverse the engine, and use all means in their power, known to skilful engineers, to stop the train; and they saw, or could have seen, Mr. Tanner, in sufficient time to have stopped the train before it got to him; then, if Mr. Tanner was injured by the train directly, or by his horse, which was run up to and frightened by the train, the defendant is liable." The plaintiff excepted to each of the charges given by the Court, and to the refusal of each of the charges asked by him. McClellan & McClellan, for appellant. ... 6. The charges given, and the refusal of the charges asked, required only care and diligence from the servants of the railroad company, and even dispensed with that if the deceased was at fault. The authorities above cited, in the first paragraph, lay down the rule as to the doctrine of contributory negligence, and clearly demonstrate the error in the charges of the Court. Rice, Jones & Wiley, contra. 1. If the plaintiff's testator by his negligence contributed to the injury complained of, there can be no recovery against the railroad company. . . . STONE, J. . . . In suits at common law by one party, to recover damages caused by the collision, the declared rule was that if the plaintiff, by his negligence, contributed proximately to the injury, he could not recover, although the fault of the defendant may have greatly exceeded his own. . . A qualification of the doctrine has been affirmed, to the effect that, notwithstanding each party may have contributed proximately to the results, yet, if the defendant wantonly, recklessly, or intentionally brought about the result, mere negligence in the plaintiff, contributing proximately to it, will not bar his right of recovery.. If, while the plaintiff is employing proper care and diligence to escape the danger to which his own previous negligence had contributed proximately to expose him, those in control of the train fail to apply proper skill and diligence to avoid the injury, when such skill and diligence, if properly resorted to, might have prevented it, this is wanton or reckless negligence, for which the railroad will be held accountable. In such case, the negligence of the person injured, which first placed him in jeopardy, becomes remotely contributory to the actual injury sustained, and is no bar to the suit. This rule, however, does not apply where the manifestation of the peril and the catastrophe are so close in point of time, as to leave no room for preventive effort. As we understand the rule of contributory negligence, it has been codified substantially as we have indicated above. . . . We hold, then, that the defence of contributory negligence is not made good, if the plaintiff, after contributing by his own negligence to place himself in peril, employs proper diligence to extricate himself, and the defendant neglects to use diligence which might have prevented the catastrophe. When Mr. Tanner was thrown from his horse, upon the track, it became manifest that he was in peril, from which he could not probably extricate himself. It then became the duty of those in charge of the train, to use every means within their power to stop the train; and if they failed to do so, and the jury should be satisfied that such exertions promptly employed, would probably have arrested the train and saved Mr. Tanner, then the charge of negligence is fastened on the railroad, and it must make reparation. ... On two questions, the charges and refusals to charge in the Circuit Court were in conflict with the rule we have declared above. . . . Judgment of the Circuit Court reversed, and cause remanded. --- 666. NASHUA IRON & STEEL Co. v. WORCESTER & NASHUA R. Co. (1882, 62 N. H. 159.) CARPENTER, J. Actions for negligence may, for convenience of consideration, be separated into four classes, namely, where, upon the occasion of the injury complained of (1) the plaintiff, (2) the defendant, or (3) neither party was present, and (4) where both parties were present. To warrant a recovery, . . . ability on the part of the defendant must concur with nonability on the part of the plaintiff to prevent it by ordinary care. He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent, "present and acting at the time" (State v. Railroad, 52 N. H. 528, 557; White v. Winnisimmet Co., 7 Cush. 155, 157; Robinson v. Cone, 22 Vt. 213), is legally without fault, and it is immaterial whether his inability results from his absence, previous negligence, or other cause. An accident may result from a hazardous situation caused by the previous negligence of one or both parties. 1. If, at the time of the injury, the defendant is unable to remove the danger which his negligence has created, the case becomes, in substance, one of the first class; the plaintiff can recover or not, according as, by ordinary care, he can or cannot protect himself from the natural consequences of the situation. 2. If the plaintiff, in like manner, is unable to obviate the danger which his prior negligence has produced, the case becomes, substantially, one of the second class; he can recover or not, according as the de |