Krum & Peters v. Anthony
115 Pa. 431
Pa.
1887
Check Treatment
Mr,. Justice Green

delivered the opinion of the court, March 7th, 1887.

We think the learned judge of the court below was in error in his treatment of the subject of contributory negligence. His view seems to have been that if the defendants were subject to a contract duty to maintain the division fence between them and the plaintiff, at the place of the accident,-had neglected to perform that duty, in consequence of which the plaintiff’s horse was lost, the liability of the defendants was fixed whether the plaintiff’s negligence contributed to the injury or not. We so understand the part of the charge covered by the fourth assignment and the answer to the defendants’ third point. We are unable to agree with that view of the subject. It ignores entirely the consequences of the plaintiff’s negligence contributing to the injury for which the suit is brought. Just here we think is the point in respect of which the learned judge was mistaken.

The action was not brought to recover damagés for the breach of a contract to maintain a fence. On the contrary it was an action of case sounding in tort to recover damages for the loss of a horse, resulting from the negligence of the defendants. This negligence is the very gist of the action. So far as the subject of contributory negligence is concerned it is precisely the same as if the action had been brought to recover damages for a personal injury. As we understand the law in *436any case where an injury by the negligence of the defendant is the basis of the action, the right to recover may be resisted by proof that the plaintiff’s own negligence contributed to the injury. If such negligence was in part the occasion of the injury, which the plaintiff alleges he has sustained, the law will not discriminate between the negligence of the plaintiff which contributed to the injury and the negligence of the defendant which also contributed to it. It simply will not allow a recovery in such a case. The facts presented byway of hypothesis in the defendants’ third point were such as, if found by the jury, undoubtedly constituted contributory negligence on the part of the plaintiff, and as there was evidence in support of them, the point should have been affirmed.

The language covered by the fourth assignment is obnoxious to the same objection, as it overlooks entirely the effect of the plaintiff’s contributory negligence. The third and fourth assignments of error are sustained and upon them the judgment is reversed.

Judgment reversed and venire de novo awarded