101 Mass. 455 | Mass. | 1869
The instructions given to the jury, in regard to the conditions upon which liability of the defendants must depend, were correct, and sufficient for the case that was presented by the facts, and were carefully expressed and guarded. We dc not understand that any objection is made to what they contain. The plaintiffs contend that they are not equivalent to the instructions prayed for; and that they are entitled to a new trial on account of that deficiency.
We are of opinion that whatever is contained in the instructions prayed for, beyond what is in those given, or inconsistent therewith, is not in accordance with the well established principles of law. The difference appears to be this. It is contended that contributory negligence on the part of the female plaintiff ought not to defeat the action, unless it should appear that, in
The last part of the instructions prayed for suggests another question, which, in certain conditions of facts, may require careful consideration ; to wit, how far the obligations and liabilities of one party are modified towards the other, after knowledge of a negligent exposure, by the latter, to danger from the acts or neglect of the former. In such case, what would otherwise have been mere negligence may become wilful or wanton wrong; or may take the place of the sole direct or proximate cause; the negligence of the other party being then regarded as a remote, and not a contributory cause. But no such question arises upon the facts of the present case.
The instructions of the court were all that were required by the facts, and the verdict is well warranted by the testimony. We should not consider further discussion necessary or appropriate, but that we observe that the prayer for instructions is framed in the precise terms of a statement by Mr. Justice Wightman in the case cited of Tuff v. Warman, 5 C. B. (N. S.) 573; which statement also forms the headnote of the report of that case.
The verdict in that case was for the plaintiff. The judge at nisi prims had instructed the jurj that negligence of the plain
It is apparent that the statement taken from Tuff v. Warman entirely overlooks the practical application of the rule as a guide in the trial of a cause. It was probably made without reference to the burden of proof. It not only fails to take into account the well settled principle that the burden is upon the plaintiff to show due care on his own part, but, by its form, implies the contrary. We think, however, that the statement will be found to be faulty in substance, as well as in form. One of the propositions in this statement is, that “ mere negligence, or want of ordinary care or caution, will not disentitle the plaintiff to recover, unless it be such that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened.” There is certainly nothing indicated in this proposition for the plaintiff to establish affirmatively. More than this ; if it should appear that the negligence of the defendant was an adequate cause to produce the result, the plaintiff must recover, even though he was himself equally,, or even to a greater degree than the defendant, in fault. If the case can be supposed in which both parties were equally in fault, the fault of each being equally proximate, direct, and adequate to produce the result, so that it
In Greenland v. Chaplin, 5 Exch. 248, Chief Baron Pollock states the rule “ that, when the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action.” Except that, in form of statement, it leaves out of view the consideration of the burden of proof, this seems to us to be accurate, and in accordance with the current of authorities. See Dowell v. General Steam Navigation Co. 5 El. & Bl. 195; Bridge v. Grand Junction Railway Co. 3 M. & W. 244; Johnson v. Hudson River Railroad Co. 20 N. Y. 65; Trow v. Vermont Central Railroad Co. 24 Verm. 487; Beers v. Housatonic Railroad Co. 19 Conn. 566.
The statement in Tuff v. Warman proceeds thus: “ Nor if the defendants might, by the exercise of due care on their part, have avoided the consequences of the neglect or carelessness of the plaintiff.” This, as already suggested, may be correct as applied to a case like Tuff v. Warman, where the negligence of the plaintiff was in a certain sense remote, preceding the negligent
We think it is manifest that the rule thus laid down in Tuff v. Warman is not the correct rule of law which governs ordinary cases of injury by negligence; but whenever there is negligence on the part of the plaintiff, contributing directly, or as a proximate cause, to the occurrence from which the injury arises, such negligence will prevent the plaintiff from recovery; and the burden is always upon the plaintiff to establish either that he himself was in the exercise of due care, or that the injury is in no degree attributable to any want of proper care on his part. Trow v. Vermont Central Railroad Co. 24 Verm. 487. Birge v. Gardiner, 19 Conn. 507. Exceptions overruled.