immediate cause of it, and with the exercise of prudence he might have prevented it, he is not excused.3

3. So, too, where there is intentional wrong on the part of the defendant, he is liable, notwithstanding negligence on the part of the plaintiff. And if the defendant is guilty of a degree of negligence from which the plaintiff, with the exercise of ordinary care cannot escape, he may recover, although there was want of prudence on his part.5

4. And, in many cases, the plaintiff has been allowed to recover for the gross negligence of the defendant, notwithstanding he was, at the time, a trespasser upon the defendant's rights.

6

N. W. R. Co., 11 Jur. N. S. 954; Stubley v. L. B. & S. C. R. Co., Id. 954; Wyatt v. Great W. R. Co., Id. 825.

Davies v. Mann, 10 M. & W. 546; Illidge v. Goodwin, 5 C. & P. 190. See also Augusta & Savannah Railw. v. McElmurry, 24 Ga. R. 75.

✦ Brownell v. Flagler, 5 Hill, (N. Y.) 282. This is the case of a drover knowingly driving off a lamb which had strayed into his drove, and he was held liable, although the plaintiff was first in fault, and defendant, in selling his drove, did not take pay for this lamb.

5

Bridge v. Grand Junction Railw., 3 M. & W. 244. In a late case in Georgia, Macon and W. Railw. v. Davis, 18 Georgia R. 679, 686, the rule of law here adverted to is approved by a judge of large experience and reputation. "We approve of modification of the principle, and think that it ought to be left to the jury to say whether, notwithstanding the imprudence of the plaintiff's servant, the defendant could not, in the exercise of reasonable diligence, have prevented the collision." So also in Runyon v. Central Railw., 1 Dutcher, 556.

But where the plaintiff's conduct is reckless and rash, he cannot recover if such negligence contributed to the injury and the defendant acted in good faith. Sheffield v. Roch. and Sy. Railw., 21 Barb. 339; Galena and Chicago Railw. v. Fay, 16 Illinois R. 558. See also Center v. Finney, 17 Barb. 94; Moore v. Central Railw., 4 Zab. 268, 824; Mackey v. New York Central Railw., 27 Barb.

528.

And in Macon & W. Railw. v. Wynn, 19 Ga. R. 440, it is held, that if, notwithstanding the negligence of defendant, the plaintiff in the exercise of common care and prudence might have avoided the injury, he cannot recover. And the general proposition, held in the same company v. Davis, supra, is reaffirmed in the Central Railw. and Banking Co. v. Davis, 19 Ga. R. 437.

6

Birge v. Gardiner, 19 Conn. R. 507; Bird v. Holbrook, 4 Bing. 628. This is the case of spring-guns set in the defendant's grounds without plaintiff's suspecting it. See also Ilott v. Wilkes, 3 B. & Ald. 304, where the plaintiff had reason to suspect the danger, and might by the exercise of prudence have escaped it, and he failed to recover. Cotterill v. Starkey, 8 C. & P. 691. There are numerous cases where a party has been held responsible for allowing real

5. But in all cases where both parties are in fault, and the plaintiff's fault was upon a point which he knew, or had reason to believe, would or might contribute to the injury, he cannot recover, and the rule laid down by Lord Ellenborough, Ch. J., in Butterfield v. Forrester, applies to the great majority of cases involving this inquiry: "One person being in fault will not dispense with another using ordinary care for himself. Two things must concur to support this action, an obstruction in the road, by the default of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."

6. One being in the baggage car, with the knowledge of the conductor, will not preclude him from a recovery for an injury caused by a collision, even though he might or would not have been injured if he had remained in the passenger car. And it was held, that when a passenger upon a stage-coach was injured by the overturning of the carriage, after he had been requested by the driver to ride inside the carriage, and had refused, and was told that if he kept the outside he must do it at his own risk, it was held that this would not exonerate the carrier, it

property to remain and be used in a condition unsafe for others, who might rightfully or even wrongfully pass it. As where one employed a coal-dealer to put coal upon his premises, and in so doing he opened a trap-door and by means of it not being properly guarded a person having occasion to pass there was injured by falling into it. Pickard v. Smith, 10 C. B. N. S..470. But where one has a mere license to pass premises, and the owner has machinery there and a shaft sunk in connection therewith, the contractor is not responsible for insufficient fencing, whereby such person is injured.. Bolch v. Smith, 7 H. & N. 736. Nor is a canal company bound to fence or light the banks of the canal. Bonells v. S. Y. & R. D. Nav. Co., 7 L. T. N. S. 350. Nor is a railway company liable for having stairs in improper condition for safe use, unless, where one fell down the stairs, it is shown the accident occurred from the defect. Davis v. London & Br. Railw., 2 F. & F. 588; see also Wilkinson v. Fairrie, 1 H. & C. 633, s. c. 9 Jur. N. S. 280; Hadley v. Taylor, 11 Jur.. N. S. 979; Gray v. Pullen, 11 L. T. N. S. 569; Welton v. Dunk, 4 F. & F. 298; Lee v. Riley,

18 C. B. N. S. 722.

"He

* Carroll v. N. Y. & N. H. Railw., 1 Duer, 571. The court here say, was under no obligation to be more careful and prudent than he was, in contemplation of there possibly being such highly culpable conduct on their part." But where, by the general regulations of the company, its engineers were prohibited from allowing any one not in its employ to ride upon the engine, and the plaintiff was permitted to ride upon the engine by the engineer without pay

appearing that the accident occurred from the negligence of the driver, and that the position of the plaintiff in no way contributed to it. And we apprehend that the plaintiff's negligence, in order to excuse the defendant from responsibility, must always be such as contributed directly to the injury.9

7. And where the locomotive of a railway ran across the legs of a person while walking upon their track in the streets of a city, it was held that the party could not recover if his own negligence contributed to the injury; and that a railway is not bound to the same degree of care in regard to mere strangers who may voluntarily, but unlawfully, go upon their track, which they owe to passengers conveyed by them.10

8. It was held that a passenger, who, having live-stock upon the train of freight cars, was, by the regulations of the company, required to remain upon the cars that contained his stock, was not precluded from recovering for an injury by collision with another train by reason of his being, at the time, in another part of the train.11

9. And it seems that the negligence of those who carry the plaintiff, contributing to the injury, will preclude his recovery as much as if it were his own act.12 But the negligence must be of a character directly and naturally to contribute to the injury, it would seem, in either case.12

ing fare, after he had been informed of the company's regulations upon the subject, and sustained an injury while so riding, it was held that he was a wrongdoer and could not recover, the consent of the engineer conferring no legal right. It was also said, that the onus of showing the authority of the engineer was upon the plaintiff, the presumption being that the plaintiff had no right to ride upon the engine, whether he paid fare or not. Robertson v. New York and Erie Railw., 22 Barb. 91.

8 Keith v. Pinkham, 43 Maine R. 501.

• Colegrove v. N. Y. & Harlem & N. Y. & N. H. Railw., 6 Duer, 382. 10 Brand v. Troy and Sch. Railw., 8 Barb. 368. The latter proposition stated in the text in reference to this case, seems to us highly reasonable and just. See Phila. & Reading Railw. v. Hummell, 44 Penn. St. 375.

"The Penn. Railw. v. McCloskey, 23 Penn. St. 532. In this case it is said a passenger is not in fault in obeying the specific instructions of the conductor, although in conflict with the general regulations of the company, known to him.

12 Thorogood v. Bryan, 8 C. B. 115; Catlin v. Hills, Id. 123. In this case it was held, where a collision occurs through the fault of two companies, running on the same track, and the suit is against them jointly, it is a misjoinder,

*10. One party being in fault will not excuse the other party, if, by the exercise of ordinary care, he might still have avoided the injury, notwithstanding the fault of the first party.13 This point is illustrated by a recent case,14 where a boy, ten years old, wrongfully came upon a street railway car, while it was in motion, without the means or the intention of paying fare.

11. And what is proper care will be often a question of law, where there is no controversy about the facts.15 But ordinarily,

but may be waived by pleading to the merits. Held, also, that each company, in such case, is liable for the injury to plaintiff, although both are in fault, and that plaintiff may recover, notwithstanding he was standing on the platform of the car, there being no notice posted up in the car prohibiting such practice, as required by the statute, and no right in the other company to run on the track that day, and no reasonable ground to apprehend they would attempt to do so.

In this case the charge to the jury, that the plaintiff's negligence, in order to defeat the action, must have contributed to the "accident which caused the injury," was held well enough, and in popular language equivalent to saying that it "must have contributed to the injury complained of." But it seems to us these are not altogether equivalent. The misconduct of plaintiff might not have the slightest agency in the production of the “accident which caused the injury," and still might have been the procuring cause of the injury itself. The word accident is susceptible of such an application as to stand for the injury itself. But the charge in this case excluded that view; and in popular language the “accident is the cause of the injury." See Ch., B. & Q. Railw. v. Coleman, 18 Ill. R. 297.

Where the vehicle of a passenger-carrier is injured by a collision resulting from the mutual negligence of those in charge of it and of another party, the carrier must answer for the injury. But if the negligence of the carrier did not directly contribute to the injury, though there may have been negligence in a general sense, the other party will be answerable if the act of his servant or agents was the proximate cause of the disaster. Lockhart v. Lichtenthaler, 46 Penn. St. 151.

A query is here made as to whether the defence of concurrent negligence in the agencies producing death, if a defence at all, can be heard without being specially pleaded. But the contrary is held in Colegrove v. Harlem, & N. Y. & N. H. Railways, 6 Duer, 382, and in Chapman v. N. H. R., 19 N. Y. Ct. App. 341.

13 Trow v. Vermont C. R., 24 Vt. R. 487; 13 Ga. R. 86.

14 Lovett v. Salem & So. Danvers Railw. Co., 9 Allen, 557; Owens v. Hudson River Railw., 2 Bosworth, 374.

15 Trow v. Vt. C. R., 24 Vt. R. 487; Henning v. N. Y. & Erie Railw., 13 Barb. 9; Gahagan v. Boston & Lowell Railw., 1 Allen, 187.

we apprehend, where there is any testimony tending to show negligence, it is a question for the jury.16

12. It has been held that a passenger in a railway car is not bound, in order to entitle himself to an indemnity against the negligence of the company, to select his seat so as to incur the least hazard.17 All that is requisite in such case is that the plaintiff should, at the time, have been where it was lawful for him to be.17

•

16 Quimby v. Vermont C. R., 23 Vt. R. 387; Briggs v. Taylor, 28 Vt. R. 180; Patterson v. Wallace, in the House of Lords, 1853, 28 Eng. L. & Eq. 48. Here the judgment of the court below was reversed, although there was no controversy about the facts, but only as to whether a certain result was to be attributed to negligence on one side, or rashness upon the other, the judge having withdrawn the case from the jury, in the court below, it was held, in the House of Lords, to be a pure question of fact for the jury. See Taff Vale Railw. v. Giles, 22 Eng. L. & Eq. 202; N. Y. & Erie Railw. v. Skinner, 21 Penn. St. 298. In Murray v. Railw. Company, 10 Rich. (S. C.) 227, it was held, that it was the duty of a railway company to slacken speed at a turnout, and to give warning when approaching a crossing; and it must not appear that such duties were disregarded, when they attempt to show themselves not guilty of negligence. See Chicago, B. & Q. Railw. v. Hazzard, 26 Ill. R. 373, where it is held, that it is not negligence in an engineer of a train, on arriving at a station, if he should let on more than the exact quantity of steam necessary to overcome the friction of frogs and switches, thereby creating a jerking motion of the train, if in so doing he exercises a reasonable discretion.

It is not usual to place a chain across the back end of the platform of a caboose car, and the omission to do so is not negligence. A passenger taking a freight train takes it with the increased risks or diminutions of comfort incident thereto, and if it is managed with the care requisite for such trains, it is all that those who embark on it have a right to demand. Ib.

And where one attempted to pass between cars in motion, propelled by an engine, without any necessity, it was held to be such unequivocal evidence of negligence, that the court were justified in charging the jury, as matter of law, that the party could not recover. Gahagan v. Boston & Lowell Railw., supra. And where a person of mature years knew that a freight train was standing ready to move between him and the passenger train, and that his passing in the night time through the freight train might not be seen by those managing it, nor they notified of his design to pass, should he attempt to pass, and be injured, it would amount to such negligence on his part as to defeat a recovery. It would be otherwise had a child or person of less than ordinary discretion so conducted. C., B. & Q. Railw. v. Dewey, 26 Ill. R. 255. See also C., B. & Q. Railw, v. Hazzard, supra.

17 Carroll v. N. Y. & H. H. R., 1 Duer, 571-2.