Radley v. L. & N. W. R. Co.

against the pilot of a steamer in the Thames for running down the plaintiff's barge; the plaintiff's own evidence showed that there was no look-out on the barge; as to the conduct of the steamer the evidence was conflicting, but according to the plaintiff's witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the want of a look-out was negligence on the part of the plaintiff, and if so, whether it "directly contributed to the accident." This was objected to as too favourable to the plaintiff, but was upheld both in the full Court of Common Pleas and in the Exchequer Chamber. In the considered judgment on appeal (1) it is said that the proper question for the jury is "whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened." But negligence will not disentitle the plaintiff to recover, unless it be such that without it the harm complained of would (≈) not have happened; nor if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

66

In Radley v. London and North Western Railway Co. (a), this doctrine received a striking confirmation.

The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery

(y) 5 C. B. N. S. at p. 585.

(2) Not "could:" see Beven on Negligence, 132.

(a) 1 App. Ca. 754, 46 L. J. Ex. 573, reversing the judgment of the

Exchequer Chamber, L. R. 10 Ex. 100, and restoring that of the Court of the Exchequer, L. R. 9 Ex. 71 (1874-6).

owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground.

On

a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs' men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those previously left on the siding. Some resistance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs' servants ought to have moved the first set of trucks to a safe place, or at any rate not have left the piled-up truck in a dangerous position. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident "happened by the negligence of the defendants' servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants' servants."

On these facts and under this direction the jury found that there was contributory negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer (b) held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer

(b) Bramwell and Amphlett BB.

"Proximate" or

Chamber (c) held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of Lords it was held (d) that there was a question of fact for the jury, but the law had not been sufficiently stated to them. They had not been clearly informed, as they should have been, that not every negligence on the part of the plaintiff which in any degree contributes to the mischief will bar him of his remedy, but only such negligence that the defendant could not by the exercise of ordinary care have avoided the result.

"It is true that in part of his summing-up, the learned judge pointed attention to the conduct of the enginedriver, in determining to force his way through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

"In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loadedup truck on the line, have made the accident impossible. The substantial defect of the learned judge's charge is that that question was never put to the jury” (e).

This leaves no doubt that the true ground of contribu

(c) Blackburn, Mellor, Lush, Grove, Brett, Archibald JJ.; diss. Denman J.

(d) By Lord Penzance, Lord Cairns, Lord Blackburn (thus re

tracting his opinion in the Ex. Ch.), and Lord Gordon.

(e) Lord Penzance, 1 App. Ca. at p. 760.

cause?

tory negligence being a bar to recovery is that it is the "decisive” proximate cause of the mischief; and negligence on the plaintiff's part which is only part of the inducing causes (ƒ) will not disable him. I say "the proximate cause," considering the term as now established by usage and authority. But I would still suggest, as I did in the first edition, that "decisive" might convey the meaning more exactly. For if the defendant's original negligence were so far remote from the plaintiff's damage as not to be part at least of its "proximate cause" within the more general meaning of that term, the plaintiff would not have any case at all, and the question of contributory negligence could not arise. We shall immediately see, moreover, that independent negligent acts of A. and B. may both be proximate in respect of harm suffered by Z., though either of them, if committed by Z. himself, would have prevented him from having any remedy for the other. Thus it appears that the term "proximate" is not used in precisely the same sense in fixing a negligent defendant's liability and a negligent plaintiff's disability.

The plaintiff's negligence, if it is to disable him, has to be somehow more proximate than the defendant's. It seems dangerously ambiguous to use "proximate" in a special emphatic sense without further or otherwise marking the difference. If we said "decisive" we should at any rate avoid this danger.

created

conse

It would seem that a person who has by his own act or Selfdefault deprived himself of ordinary ability to avoid the disability consequences of another's negligence can be in no better to avoid position than if, having such ability, he had failed to quences of avoid them; unless, indeed, the other has notice of his negliinability in time to use care appropriate to the emergency; gence.

P.

(f) Or, as Mr. Wharton puts it, not a cause but a condition.

D D

another's

Earlier illustrations:

Davies v.
Mann.

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, nor can this make any difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required (g).

Cases earlier than Tuff v. Warman (h) are now material only as illustrations. A celebrated one is the "donkey case," Davies v. Mann (i). There the plaintiff had turned. his ass loose in a highway with its forefeet fettered, and it was run over by the defendant's waggon, going at “ a smartish pace." It was held a proper direction to the jury that, whatever they thought of the plaintiff's conduct, he was still entitled to his remedy if the accident might have been avoided by the exercise of ordinary care on the part of the driver. Otherwise "a man might justify the driving over goods left on a public highway, or even over

(g) Cp. Mr. W. Schofield's article in Harv. Law Rev. iii. 263.

(h) 5 C. B. N. S. 573, 27 L. J.

C. P. 322.

(i) 10 M. & W. 546, 12 L. J. Ex. 10 (1842).