a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road” (j). With this may be compared the not much later case of Mayor of Colchester v. Brooke (k), where it was laid down (among many other matters) that if a ship runs on a bed of oysters in a river, and could with due care and skill have passed clear of them, the fact of the oyster-bed being a nuisance to the navigation does not afford an excuse. The facts of Davies v. Mann suggest many speculative variations, and the decision has been much and not always wisely discussed in America, though uniformly followed in this country (1).

v. Forres

Butterfield v. Forrester (m) is a good example of obvious Butterfield fault on both sides, where the plaintiff's damage was im- ter. mediately due to his own want of care.

The defendant

had put up a pole across a public thoroughfare in Derby, which he had no right to do. The plaintiff was riding that way at eight o'clock in the evening in August, when dusk was coming on, but the obstruction was still visible a hundred yards off: he was riding violently, came against the pole, and fell with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could, they were to find for the defendant; and they did so. The judge's direction was affirmed on motion for a new trial. "One person being in fault will not dispense with another's using ordinary care for himself." Here it can hardly be said that the position of the pole across the road was not a proximate cause of the fall.

(j) Parke B., 10 M. & W. at p. 549; cp. his judgment in Bridge v. Grand Junction R. Co. (1838) 3 M. & W. at p. 248.

(A) 7 Q. B. 339, 376, 15 L. J. Q. B. 59.

(1) See Harv. Law Rev. iii. 272 --276.

(m) 11 East 60 (1809).

404

But it was not the whole proximate cause. The other and
decisive cause which concurred was the plaintiff's failure to
see and avoid the pole in his way.

On the whole, then, if the plaintiff's "fault, whether of
omission or of commission, has been the proximate cause
of the injury, he is without remedy against one also in
the wrong" (n). On the other hand, if the defendant's
fault has been the proximate cause he is not excused
merely by showing that the plaintiff's fault at some
earlier stage created the opportunity for the fault which
was that cause (o). If it is not possible to say whether
the plaintiff's or the defendant's negligence were the
proximate (or decisive) cause of the damage, it may be
said that the plaintiff cannot succeed because he has failed
to prove that he has been injured by the defendant's
negligence (p). On the other hand it might be suggested
that, since contributory negligence is a matter of defence
of which the burden of proof is on the defendant (g), the
defendant would in such a case have failed to make
out his defence, and the plaintiff, having proved that the
defendant's negligence was a proximate cause if not the
whole proximate cause of his damage, would still be
entitled to succeed. The defendant must allege and prove
not merely that the plaintiff was negligent, but that the
plaintiff could by the exercise of ordinary care have
avoided the consequences of the defendant's negligence (").
It is a question, either way, whether the plaintiff shall
recover his whole damages or nothing, for the common

(n) Little v. Hackett (1886) 116 U. S. 366, 371; Butterfield v. Forrester, above.

(0) Radley v. L. & N. W. R. Co.; Davies v. Mann.

(p) Per Lindley L. J., The Bernina, 12 P. D. 58, 89.

(9) Lord Watson (Lord Blackburn agreeing), Wakelin v. L. § S. W. R. Co. (1886) 12 App. Ca. at pp. 47-49.

(r) Bridge v. Grand Junction R. Co. (1838) 3 M. & W. 248.

law, whether reasonably or not (s), has made no provision for apportioning damages in such cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that "hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are simultaneous and those where they are successive. In regard to the former class, such as Dublin, Wicklow & Wexford Ry. Co. v. Slattery (t), or the case of two persons colliding at a street corner, the rule is, that if the plaintiff could by the exercise of ordinary care have avoided the accident he cannot recover. In regard to the latter class of cases, such as Davies v. Mann (u) and Radley v. L. & N. W. Ry. Co. (x), the rule may be stated thus that he who last has an opportunity of avoiding the accident, notwithstanding the negligence of the other, is solely responsible. And the ground of both rules is the same: that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury " (y).

Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. "It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or at all events not

The ex

cation."

apart from B." Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A. to answer to Z.: "You were not injured by my negligence at all, but only and wholly by B.'s." It seems to be a question of fact rather than of law what respective degrees of connexion, in kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arrived at, it is now quite clear that Z. can sue both A. and B. (z).

In a case now overruled, a different doctrine was set up ploded doctrine of which, although never willingly received and seldom acted "identifi- on, remained of more or less authority for nearly forty years. The supposed rule was that if A. is travelling in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.'s servants, and A. is injured in a collision with another vehicle belonging to Z., and under the control of Z.'s servants, which collision is caused partly by the negligence of B.'s servants and partly by that of Z.'s servants, A. cannot recover against Z. The passenger, it was said, must be considered as having in some sense "identified himself" with the vehicle in which he has chosen to travel, so that for the purpose of complaining of any outsider's negligence he is not in any better position than the person who has the actual control (a). It is very difficult to see what this supposed

(z) Little v. Hackett (1886) 116 U. S. 366; Mills v. Armstrong (1888) 13 App. Ca. 1, overruling Thorogood v. Bryan (1849) 8 C. B.

115, 18 L. J. C. P. 336.

(a) Judgments in Thorogood v. Bryan, see 12 P. D. at pp. 64—67, 13 App. Ca. at pp. 6, 7, 17.

"identification" really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to be answerable for the negligence of the driver, guard, conductor, master, or whoever the person in charge may be. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Yet the eminent judges (b) who invented "identification" must have meant something. They would seem to have assumed, rather than concluded, that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant's negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled-of course within the limits set by the general rules as to remoteness of damage-to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage.

The phrase "contributory negligence of a third person, which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing

(b) Coltman, Maule, Cresswell, and Vaughan Williams JJ.