The declaration alleges that by the defendants’ careless management of their engine and cars, the plaintiffs’ horse was frightened, and caused to run upon and injure Ursula Clapp, who w'as without fault; that Clapp brought her action therefor against the plaintiffs, and recovered judgment for damages, which they paid; that the defendants had notice of, and were requested to defend, the suit. The defendants demur. Inasmuch as Clapp could not have recovered against the plaintiffs unless they were in fault (Brown v. Collins, 53 N. H. 442, Lyons v. Child, 61 N. H. 72), it must be taken that their negligence cooperated with that of the defendants to produce the injury. If the plaintiffs won not liable in that action because their negligence was not, and (ho defendants’ negligence was, the cause of the accident, the objection is not now open to the defendants. Littleton v. Richardson, 34 N. H. 179. In relation to Clapp, both parties were wrong-doers. -She could pursue her remedy against either or both *160 of them, at her election. Burrows v. March Gas Co., L. R. 5 Ex. 67, 71.
One of several wrong-doers, who has been compelled to pay the damages caused by the wrong, has in general no remedy against the others. He cannot mate his own misconduct the ground of an action in his favor. To this proposition there are, it has been said, so many exceptions, that it can hardly, with propriety, be called a general rule.
Bailey
v.
Bussing,
The declaration is general. It does not disclose the particulars of the plaintiffs’ negligence, by reason of which Clapp recovered against them. Under it, cases differing widely in their facts and legal aspects may be proved. Among others possible, it may be shown that the horse was in the charge of the plaintiffs’ servants, who might have prevented its fright or its running after the fright, or if they could do neither, that they might nevertheless have avoided the injury to Clapp; or it may appear that the plaintiffs’ negligence consisted solely in permitting the horse, whether attended or unattended by their servants, to he at 'the place where it was at the time of the fright. The generality of the declaration
*161
does not render it bad in law.
Corey
v. Bath, 85 N. H. 531. If the plaintiffs are entitled to judgment upon any state of facts provable under it, the demurrer must be overruled. Whether the plaintiffs can recover in any case, and if so, in what cases, possible to be proved under the declaration, are speculative or hypothetical questions, of which none may, and all cannot, arise. They involve substantially the whole subject of the law relating to mutual negligence. The case might properly be discharged without considering them
(Smith
v. Cudworth,
Ordinary care is such care as persons of average prudence exercise under like circumstances.
Tucker
v. Henniker, 41 N. H. 317;
Sleeper
v.
Sandown,
52 N. H. 244;
Aldrich
v.
Monroe,
60 N. H. 118. Every one in the conduct of his lawful business is bound to act with this degree of care, and if he fails to do so is responsible for the consequences, {it follows that a person injured by reason^ of his want of ordinary care, or (since the law makes no apportionment between actual wrong-doers) by the joint operation of his own and another’s negligence, is remediless? This general rule of law justly applied to the facts, determines, it is believed, the rights of the parties in all actions for negligence. In its application, the law, as in various other cases, deals with the immediate cause, — the cause as distinguished from the occasion, — and looks at the natural and reasonably to be expected effects.
Cowles
v. Kidder, 24 N. H. 383;
Hooksett
v. Company, 44 N. H. 108;
McIntire
v. Plaisted, 57 N. H. 608;
Solomon
v.
Chesley,
59 N. H. 243;
China
v.
Southwick,
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. In all of them it may happen that both parties were more or less negligent. Actions upon the. statute of highways are a common example of the first clasg;'|)The negligence of the! defendant, however great, does not relieve the plaintiff from thef duty of exercising ordinary carej7 If, notwithstanding the defective condition of the highway, this degree of care on the part of the plaintiff would prevent the accident, his and not the defendant’s *162 negligence, though but for the latter it could not happen, is, in the eye of the law, its sole cause. Farnum v. Concord, 2 N. H. 394; Butterfield v. Forrester, 11 East 60. In this class of cases, an injury which the plaintiff's negligence contributes to produce could not happen without it. The not uncommon statement that the plaintiff cannot recover if his negligence contributes in any degree to cause the injury, is strictly correct, although the word "contribute" may be, as Crompton, J., in Tuff v. Warman, 5 C. B. N. S. 584, says it is, "avery unsafe word to use," and "much too loose." The result is the same whether the plaintiff acts with full knowledge of the danger, or, by reason of a want of proper care, fails to discover it seasonably. if he is not b'ound to anticipate, and in advance provide for, another's negligence, he ihay not wilfully or neglige~itly shut his eyes against its possibility. ~` He is bound to be informed of everything which ordinary care would di~close to hii~. He can no more recover for an injury caused by driving into a dangerous pit, of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into a known pit. Norris v. Litchfield, 35 N. H. 271; Clark v. Barrington, 41 N. H. 44; Tucker v. Henniker, 41 N. H. 317; Winship v. Enfield, 42 N. H. 213, 214; Underhill v. Manchester, 45 N. H. 220.
The defendant’s negligence being found or conceded, the ^remaining question is, whether the plaintiff, by the exercise of ordinary care, could have escaped the injury. If he could not, 4*s he is free from fault, and is entitled to recover. If he could, he n'ot only cannot recover for his own injury, but is himself liable to the other party, if the latter is injured; and the case becomes one of the second class, of which
Davies
v. Mann, 10 M. & W. 546, is an instance. The defendant is liable here for the saíne reason that, as plaintiff, he could not recover,-^that is to say/Eecause ordinary care on his part would have prevented the injury/ (The fact that one has carelessly exposed his property in a dangerous situation does not absolve his neighbors from the obligation of conducting themselves in regard to it with ordinary care.^ An injury which that degree of care would prevent is caused by the want of it, and not by the owner’s negligence in leaving his property in a perilous position/A surgeon, called to set a leg carelessly broken, cannot successfully urge, in answer to a suit for mal-practico, that the patient’s negligence in breaking his leg caused the crooked or shortened limb.
Lannen
v. Albany.
Gas-light Co.,
Knowledge, or its equivalent, culpable ignorance, and ignorance without fault of the situation, are circumstances by which-, among others, the requisite measure of vigilance is determined.
Griffin
v. Auburn, 58 N. H. 121, 124;
Palmer
v. Dearing,
The law is not affected by the presence or the absence of tbe parties, nor by the difficulty of applying it to complicated facts. To warrant a recovery whore both parties are present at the time of the injury, as well as iiY oHierTiiiesTaBnTfy on the part of the defendant jYrast concur with non-ability on the part of the plaintiff: to prevent it by ordinary carty^Their duty to exercise this degree of care is equal and reciprocal; neither is exonerated from bis obligation by the present or previous misconduct of the other/ The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to tbe person of one who carelessly exposes himself to danger, than to bis property, similarly situated in bis absence. 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.,
*164
Cases of this class assume a great variety of aspects. While all are governed by the fundamental principle, that he only, who by ordinary care can and ' does not prevent an injury, is responsible in damages, it is impossible to formulate a rule in language universally applicable. A statement of the law correct in its application to one state of facts may be inaccurate when applied to another. Instructions to the jury proper and sufficient in a case of the first class, would be not only inappropriate but incorrect in one of the second class. The doctrine laid down in
Tuff
v.
Warman,
5 C. B. N. S. 573, 585, however just and well suited to the evidence in that case, was held erroneous as applied to the facts in
Murphy
v. Deane,
An accident may result from a hazardous situation caused by the previous negligence of one or both parties. 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 can not protect himself from the natural consequences of the situation^ 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 ; (lie can recover or not, according as the defendant, by the same degree of care, can or can not avoid the natural consequences of such negligence.} If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter is incuria, but not
incuria dans locum injuriae
— it is the cause of the danger ; the former is the cause of the injury.
Metropolitan Railway
v.
Jack
son, 3 App. Ca. 193, 198;
Dublin &c. Railway
v.
Slattery,
3 App. Ca. 1155, 1166;
Davey
v.
London &c. Railway,
12 Q. B. Div. 70, 76;
Churchill
v.
Rosebeck,
If a person, who by his carelessnes is put in a position perilous to himself and to others, while in that position does all that a person of average prudence could, he is guilty of no wrong towards another who embraces the opportunity negligently to injure him, or who receives an injury which propér care on his part would prevent. It would doubtless be esteemed gross carelessness to navigate the Atlantic in a vessel without a rudder, but if the owner, while sailing his rudderless ship with ordinary care, is negligently run down by a steamer, the latter must pay the damages, and can recover none if it is injured.
Dowell
v.
Steam Navigation Co.,
5 E. & B. 195;
Haley
v.
Earle,
(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. If the accident results from the combined effect of the negligence of both parties, that of neither alone being sufficient to produce it, proof by the plaintiff that due care on tire part of the defendant would have prevented it will not entitle him to recover, because like care on his own part would have had the same effect. If the misconduct of each party is an adequate cause of the injury, so that it would have occurred by reason of cither’s negligence without the cooperating fault of the other, proof by the plaintiff that by due care he could not have prevented it will not entitle him to recover, because no more could the defendant have prevented it by like care.
Murphy v. Deane,
In the comparatively unfrequent cases of the third class, a negligent plaintiff can seldom, if ever, recover. Where both parties are careless, they are usually, if not always, equally in fault; ordinary care on the part of either would prevent the injury. ( Not being present on the occasion of the accident, neither can, in general, guard against the consequences of the other’s negligence.)
Blyth
v.
Topham,
Cro. Jac. 158;
Sybray
v.
White,
1 M. & W. 435;
Williams
v.
Groucott,
4 B. & S. 149;
Lee
v.
Riley,
18 C. B. N. S. 722;
Wilson
v.
Newberry,
L. R. 7 Q. B. 31;
Lawrence
v.
Jenkins.
L. R. 8 Q. B. 274;
Firth
v.
Bowling Iron Co.,
3 C. P. Div. 254;
Crowhurst
v.
Amersham Burial Board,
4 Ex. Div. 5;
Bush
v.
Brainard,
If there are actions for negligence of such a character that the rights of the parties are not determinable by the application of *166 these principles, the present case is not one of them. If, notwithstanding the defendants’ negligence, the plaintiffs, by ordinary care, could have prevented the fright of the horse, or its running, after the fright, or, in the absence of ability to do either, if they could have avoided the running upon and injury to Clapp, their misconduct, and not that of the defendants, was the cause of the accident, and they cannot recover. On the other hand, if the plaintiffs’ carelessness consisted solely in permitting the horse to be where it was at the time, and ordinary care by the defendants would have prevented its fright, or,- if the plaintiffs, by proof of any state of facts competent to be shown under the declaration, can make it-appear that at the time of the occurrence they could not, and the defendants could, by such care have prevented the accident, they are entitled to recover.
.Demurrer overruled. •