fendant, by the same degree of care, can or cannot avoid the natural consequences of such negligence. . . . If, at the time of the injury, each of the parties, or, in the absence of antecedent negligence, if neither of them could prevent it by ordinary care, there can be no recovery. The comparatively rare cases of simultaneous negligence will ordinarily fall under one or the other of these heads. . . . The plaintiff must establish both propositions, namely, that by ordinary care he could not, and the defendant could, have prevented the injury. 667. Sir FREDERICK POLLOCK. Law of Torts. (7th ed., 1904, p. 455.) 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, but this can make no difference to what a prudent man could or would do, nor therefore to the legal measure of the diligence required.(m) Cases earlier than Tuff v. Warman (n) are now material only as illustrations. A celebrated one is the "donkey case," Davies v. Mann. (o) . . . 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. (r) 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,(s) 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 (t) and Radley v. L. & N. W. Ry. Co., (u) 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 (m) Cp. Mr. W. Schofield's article in Harv. Law Rev., iii, 263. (n) 5 C. B. N. S. 573, 27 L. J. C. P. 322. (0) (1842) 10 M. & W. 546, 12 L. J. Ex. 10, 62 R. R. 698. (r) See Harv. Law Rev., iii, 272–276. (s) 3 App. Ca. 1155. (t) 10 M. & W. 546, 62 R. R. 698. (u) 1 App. Ca. 754, 46 L. J. Ex. 573. ... 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."(v) . . . ... 668. PIERCE v. CUNARD STEAMSHIP COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 153 Mass. 87, 26 N. E. 415 1891 TORT, by the administratrix of the estate of Philip T. Pierce, to recover for personal injuries occasioned to the intestate, a carpenter, while employed by contractors in constructing, with the defendant's permission, a refrigerator for exporters of beef on one of its steamships. Trial in the Superior Court, before Thompson, J., who ruled that there was no evidence to support a verdict for the plaintiff, and ordered a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion. G. H. Ryther, for the plaintiff. G. Putnam & T. Russell, for the defendant. HOLMES, J. This is an action for injuries to the plaintiff's intestate, Pierce, which, in fact, ended in his being stifled by the smoke from a fire on the defendant's steamship Cephalonia. The only question for us is whether the plaintiff was entitled to go to the jury. There was evidence tending to prove the following facts. The intestate was at work with others between decks when the fire broke out there. He delayed a little in trying to escape, seemingly in order to get his maul or his coat. The other men ran up a movable wooden ladder to the main deck. As the last two or three came up through the hatchway, it was nearly covered with a tarpaulin, and shortly after it was completely covered, and the ladder removed, in obedience to an officer's order to close the ventilators and to cover the hatches. The jury might have found that this manifestly cut off the only practicable escape from the between decks. One of the men who stood near the officer when he gave the order said "No, there is a man there." The officer replied, "I don't care a damn; cover the hatches." A fireman testified that he heard knocking in the compartment where the intestate was, a considerable time after the hatches were covered. After the fire was put out, the intestate was found dead near the hatchway, with his coat wrapped about his head. We are far from saying that the story in this extreme form is the most probable account of what happened. . . . It is enough for us to say, that, on the facts supposed, a jury would be justified in finding a verdict against the defendant in a civil action. The evidence as to the progress which the fire had made when Pierce went back towards it is too vague for us to assume that it was negligent (v) L. Q. R., v, 87. for him to do so. Whether it was so or not is a question for the jury. But if it was, that would not necessarily prevent the defendant's being held answerable in damages. No doubt, if the ground on which it was sought to charge the defendant was the original breaking out of the fire, it would be a good answer that the plaintiff needlessly and negligently exposed himself to it a second time, after having been once in a place of safety. Hay v. Great Western Railway, 37 Upper Canada 456. But here the ground is not the fire, but an act done by the defendant after Pierce had got into the dangerous position. The nature of the act makes no difference. If the plaintiff's evidence is believed, it caused the suffocation, as truly as if the defendant had locked Pierce in first, and then set fire to the ship. The plaintiff's previous negligence is not a sufficient excuse for knowingly inflicting an injury upon him, or, short of that, for omitting the use of such care as is reasonable under the circumstances to avoid injuring him, even when the harm is not expected in terms. Murphy v. Deane, 101 Mass. 455, 465. Hibbard v. Thompson, 109 Mass. 286, 289. Marble v. Ross, 124 Mass. 44, 48. Davies v. Mann, [supra, No. 664.] Tuff v. Warman, 5 C. B. (N. S.) 573, 585. Radley v. London & North Western Railway, 1 App. Cas. 754, 759. Shearman & Redfield, Negligence, (6th ed.) § 99. . . . Exceptions sustained. 669. RICHMOND TRACTION Co. v. MARTIN. (1903, 102 Va. 209, 45 S. E. 886.) WHITTLE, J. The well-known rule in this class of cases is that a plaintiff seeking to recover damages for an injury caused by the negligence of the defendant must himself be free from negligence. . . . The general rule adverted to is subject, however, to the qualification that where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover, notwithstanding his negligence; the doctrine in that respect being that the law regards the immediate or proximate cause which directly produces the injury, and not the remote cause which may have antecedently contributed to it. From that principle arises the well-established exception to the general rule, that if, after the defendant knew, or in the exercise of ordinary care ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case, the subsequent care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff. . . 670. STANFORD v. ST. LOUIS & SAN FRANCISCO R. Co. (1909, 162 Ala. —, 50 So. 110.) MAYFIELD, J. Plaintiff's intestate was killed in the town of Sulligent by defendant's freight train at about one o'clock in the afternoon of December 16, 1906. The freight train was standing upon a side track at Sulligent just prior to the accident, awaiting the arrival of the passenger train due at that hour. . . . Just as the passenger train whistled for the station of Sulligent, the conductor of the freight train signalled the engineer to couple up the train so that it would be ready to move out as soon as the passenger train had arrived or passed. As the train was thus being coupled up the intestate was in some manner caught by the moving cars and crushed to death. The evidence was ... ... in conflict as to whether deceased was passing along one of these highways and attempting to go through the opening made for that purpose between two of the cars, and was thus caught between the two cars as they were being moved together to be coupled. . . . The evidence was also in dispute as to whether any of the train crew in charge of the movements of the train consented or signalled to intestate that he could cross the track or the cars at the time and in the manner he attempted so to do. . . There was, however, evidence which would authorize the jury to infer, that, if the plaintiff's intestate was guilty of negligence, such negligence preceded that of the defendant. . . . And that, therefore, he had no chance to avoid the negligence of defendant, while the defendant did have the opportunity to avoid injuring intestate after his negligence, which may have been induced by defendant, and that if the defendant had exercised reasonable care after knowing of intestate's peril and negligence, it could and would have thereby avoided injuring him. Some of the evidence thus makes a clear and typical case for the application of the doctrine of "subsequent negligence" or "last clear chance." This rule or doctrine, first announced in England, has been adopted and is now well recognized in this State. Hanlon's Case, 53 Ala. 70; Tanner's Case, [supra, No. 665]. . . . The Court, at the request of the defendant in writing, gave the jury a great number of charges, some of which ignored this phase of the evidence; and virtually charged the jury that plaintiff could not recover in the case if they believed from the evidence that the space between the cars had been closed when deceased attempted to cross the railroad track unless they further believed that defendant was guilty of wanton negligence or wilful injury — wholly ignoring or disregarding the doctrine of subsequent negligence or "last clear chance," which some of the evidence tended to establish.1 . . . 1 [PROBLEMS: The plaintiff was crossing the street at a busy corner, and the defendant's automobile approached at a negligent speed. The sound of the horn frightened the plaintiff, and with poor judgment she stepped directly into the track of the automobile, and was injured. The defendant could have stopped the car in time with the emergency brake, but was unskilful in the use of it, and by mistake pulled the speed lever instead of the brake lever, after discovering the plaintiff's situation. Is the defendant liable? (1909, Navailles v. Dielmann, 124 La. 421, 50 So. 449.) ESSAYS: William Schofield, "Davies v. Mann, Theory of Contributory Negligence." (H. L. R., III, 263.) Francis H. Bohlen, “Contributory Negligence." (H. L. R., XXI, 233.) "Contributory Negligence - Last clear chance." (C. L. R., XI, 90.) 365.) - (H. L. R., XVI, "Crossing Accident - Contributory Negligence." (Y. L. J., XX, 593.)] SUB-TOPIC F. PLAINTIFF'S PRIOR OPTION NOT TO AVOID THE Risk of HARM (AVOIDABLE DAMAGE; ASSUMPTION OF RISK) 1. In General 673. LOKER v. DAMON SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1835 17 Pick. 284 TRESPASS quare clausum. The declaration set forth, that the defendants destroyed and carried away ten rods of the plaintiff's fences, in consequence of which certain cattle escaped through the breach and destroyed the plaintiff's grass, and that he thereby lost the profits of his close from September, 1832, to July, 1833. At the trial before MORTON, J., the plaintiff proved, that the defendants, in the latter part of November, removed portions of the stone wall inclosing the locus, and thus made a passageway through it; that these breaches were not repaired till after the middle of the succeeding May, when they were closed up by the plaintiff; and that in the mean time, the cattle of the plaintiff and others passed into the close, and fed upon the grass; that the close contained four or five acres; and that in 1832, it produced about a ton of hay to the acre. The close was a part of the farm on which the plaintiff lived. A default was entered, the damages to be assessed at $1.50 unless the Court should be of opinion, that the plaintiff could recover damages beyond a remuneration for replacing the fences; in which case the damages were to be assessed upon such principles as the Court should determine. Josiah Adams and Keith for defendants. Mellen, for plaintiff. SHAW, C. J. The Court are of opinion, that the direction respecting damages was right. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open and passes it frequently, and wilfully and obstinately or through gross negligence leaves it open all summer, and cattle get in, it is his own folly. So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too remote. We think the jury were rightly instructed, that |