SUB-TITLE (III): PLAINTIFF'S CONTRIBUTORY FAULT 623. JUSTINIANUS. Digesta. (50, 17, de diversis regulis, 203.) Pomponius. Quod quis ex culpa sua damnum sentit, non intellegitur damnum sentire. 624. T. RUTHERFORTH. Institutes of Natural Law. (1832. 2d Amer. ed., I, c. XVII, p. 209.) Sometimes, and especially in what may seem faults of the lower degrees, the damage which arises from our supposed neglect will be found, upon inquiry, to have been rather owing to the neglect of the person who suffers it; and then we are not only clear from all guilt that may subject us to punishment, but from all blame that might oblige us to make reparation. . . . If a man was passing through grounds where there was no common path or way, and where he had no business, and should be wounded or maimed by a horse or an ox which were in the pasture of their owner, the fault is in the person so hurt; because he ought not to have been there. 625. HERBERT BROOM. A Selection of Legal Maxims. (3d ed., 1852, No. 201.) "Volenti non fit injuria." It is a general rule of the English law, that no one can maintain an action for a wrong where he has consented or contributed to the act which occasions his loss. So, if a person says, generally, "There are spring-guns in this wood," and if another then takes upon himself to go into the wood, knowing that he is in hazard of meeting with the injury which the guns are calculated to produce, he does so at his own peril, and must take the consequences of his own act. . . . There is also an extensive class of cases to which the maxim "volenti non fit injuria " may be applied, . . . in which redress is sought for an injury which has resulted from the negligence of both plaintiff and defendant, and in many of which it has been held that the former is precluded from recovering damages. 626. WARD V. AYRE. (1615. Cro. Jac. 366.) Trespass of assault and battery, etc., quod cumulum pecuniae, containing five marks, cepit, etc. The case was: The plaintiff and defendant being at play, the plaintiff thrust his money into the defendant's heap and mixed it, and the defendant kept it all; whereupon (they striving for the money) plaintiff brought this action. The whole Court were of opinion, in regard the plaintiff's own money cannot be known, and this his intermeddling is his own act and his own wrong, that by the law he shall lose all; for, if it were otherwise, a man might then be made to be trespasser against his will, by the taking of his own goods; therefore, to avoid that inconvenience, the law will justify the defendant's detaining of all: and so it is of an heap of corn voluntarily intermingled with another man's. Whereupon the rule of the Court was, quod querens nihil capiat per billam. 627. VIRTUE v. BIRD. (1677. 2 Lev. 196.) Case, that whereas the defendant had hired him to carry a load of timber from Woodbridge to Ipswich to be laid there at any place the defendant should appoint, and that he gave notice to the defendant that he would carry it such a day, and requested the defendant at Woodbridge to appoint where it should be laid, and that accordingly he carried it to Ipswich, and the defendant appointed no place where it should be laid, but made the horses of the plaintiff being hot stay so long in the cart, that they took cold, whereby some of them died, and the rest were spoiled. And after verdict for the plaintiff upon non culp., judgment was staid; because the action lies not. For, 1. he might have taken his horses out of his cart, and have walked them up and down, or put them into the stable; 2. As soon as he came there, and found no place appointed by the defendant, he might have unladen the timber in any convenient place, and returned. And therefore the injury which the horses received is owing to himself, and through his own default. 628. BODY OF LIBERTIES OF MASSACHUSETTS. (1641.) Art. 24. In all Trespasses or damages done to any man or men, If it can be proved to be done by the meere default of him or them to whome the trespasse is done, It shall be judged no trespasse, nor any damage given for it. Topic 1. Variant Forms of Rule 629. THE WOODROP-SIMS HIGH COURT OF ADMIRALTY. 1815 2 Dods. Adm. 83 THIS was a cause of damage, at the instance of Thomas Potts and George Taylor, the owners of the brig Industry, against the above ship, the Woodrop-Sims, her tackle, etc. On the part of the complainants, it was stated that the Industry, being a brig of the burden of eighty-nine tons, sailed on the 12th of May from Sunderland with a cargo of coals for some port in west England, and that about two o'clock in the morning of the 19th of May, being off the South Foreland, which bore west-south-west, distant about a mile and a half, with wind about west-north-west, and steering a south-west course close by the wind, and on the starboard tack, the Woodrop-Sims was observed about three hundred yards distant, running to the north-east with a free wind. That the master and crew of the brig perceiving that the ship continued her course, and that if it was not altered would come direct upon them, called out several times as loud as possible, but no notice was taken of their hailing, and the Woodrop-Sims came on board the brig and stove in her larboard side, and she sunk almost immediately, the crew of the brig having just time to save themselves on board the Woodrop-Sims. That the loss of the Industry and her cargo was occasioned by the negligence or want of skill of the master and crew of the Woodrop-Sims, and by the want of a good lookout on board the ship. On the other side, it was stated that the loss of the brig was not occasioned by any improper conduct or want of skill of those on board the Woodrop-Sims, but by the negligence of the master and crew of the Industry, and by the want of a good lookout on board the brig. The Court was assisted by two of the elder brethren of the Trinity House. Judgment. Sir W. SCOTT. This is one of those unfortunate cases in which the entire loss of a ship and cargo has been occasioned by two vessels running foul of each other. There are four possibilities under which an accident of this sort may occur. In the first place, it may happen without blame being imputable to either party; as where the loss is occasioned by a storm, or any other vis major; in that case, the misfortune must be borne by the party on whom it happens to light; the other not being responsible to him in any degree. Secondly, a misfortune of this kind may arise where both parties are to blame, where there has been a want of due diligence or of skill on both sides; in such a case, the rule of law is that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only; and then the rule is, that the sufferer must bear his own burden. Lastly, it may have been the fault of the ship which ran the other down; and in this case the injured party would be entitled to an entire compensation from the other. . . . This state of circumstances raises a question or two of professional skill, upon which you, gentlemen (addressing himself to the Trinity Masters), will have to decide. . . . If you shall think that the proper precautions were taken by the persons on board the Woodrop-Sims, then it will become necessary to inquire whether these measures were counteracted and defeated by improper measures taken by those on board the other ship. Upon these points, gentlemen, I shall rely on your judgment. The Trinity Masters expressed their opinion, that the Woodrop-Sims was to blame; that she had the wind free, and ought to have got out of the way. The Court pronounced its sentence accordingly, and referred the settlement of the amount to the registrar and merchants. 630. R. G. MARSDEN. A Treatise on the Law of Collisions at Sea. (1897. 4th ed., c. VI, pp. 140-143, in part.) [The rule laid down by Lord STOWELL in The Woodrop-Sims] is not in accordance with numerous decisions of the High Court of Admiralty during the seventeenth and eighteenth centuries. During that period the rule of division of loss was frequently applied in cases where the cause of collision was uncertain, and also where the collision was purely accidental. However, whatever doubts there may be as to the scope of the rule when Sir W. SCOTT thus stated it in 1816, there can be no doubt that at the present day (whether by "communis error" or otherwise, is immaterial) the rule is applied only in cases of "both to blame." . . As to the policy and justice of the rule, there has been much difference of opinion. Cleirac [in his "Us et Coutume de la Mer "] approves of it upon the questionable ground that the law must not give any inducement to the owners of old and worthless ships to get them run down for the sake of the damages they may recover. That he had not a high opinion of its justice seems probable from his stigmatizing it as "judicium rusticorum," - a term applied to it also by Chancellor Kent. . . . That the rule conduces to safety at sea, by encouraging shipmasters to take every possible precaution, or that it makes masters of large ships more careful of small ones, as has been suggested by other authorities, is at least doubtful. That it tends to avoid interminable litigation (as has been stated by a high authority in this country) is not evident. LINDLEY, L. J., is of opinion that, where the negligence of the two ships is equal, it works better justice than the rule of the common law; "Why, in such a case, the damages should (at common law) not be apportioned, I do not profess to understand." In some cases, however, as applied in this country, it works positive injustice. It prevents the innocent owner of cargo on board either ship from recovering from the wrongdoing owner of either ship more than half his loss. . . As has been already stated, the law apportions the loss, where both ships are in fault, by obliging each wrongdoer to pay half the loss of the other. Thus, if the loss on ship A is £1,000 and that on B is £2,000, A can recover £500 against B, and B can recover £1,000 against A. The Courts make no attempt to administer distributive justice by apportioning the loss according to the degree of fault of which each ship is guilty. 631. THE MAX MORRIS SUPREME COURT OF THE UNITED STATES. 1890 137 U. S. 1 THE case, as stated by the Court, was as follows: This was a suit in Admiralty, brought in the District Court of the United States for the Southern District of New York, by Patrick Curry against the steamer Max Morris. The libel alleged that on the 27th of October, 1884, the libellant was lawfully on board of that vessel, being employed to load coal upon her by the stevedore who had the contract for loading the coal; that, on that day, the libellant, while on the vessel, fell from her bridge to the deck, through the negligence of those in charge of her, in having removed from the bridge the ladder usually leading therefrom to the deck, and in leaving open, and failing to guard, the aperture thus left in the rail on the bridge; that the libellant was not guilty of negligence; and that he was injured by the fall and incapacitated from labor. He claimed $3,000 damages. The answer alleged negligence on the part of the libellant and an absence of negligence on the part of the claimant. The District Court, held by Judge Brown, entered a decree in favor of the libellant for $150 damages, and $32.33 as one-half of the libellant's costs, less $47.06 as one-half of the claimant's costs, making the total award to the libellant $135.27. The opinion of the District Judge is reported in 24 Fed. Rep. 860. It appeared from that that the judge charged to the libellant's own fault all his pain and suffering and all mere consequential damages, and charged the vessel with his wages, at $2 per day, for seventy-five working days, making $150. The claimant appealed to the Circuit Court, on the ground that the libel should have been dismissed. The case came up again in the Circuit Court on the 14th of March, 1887, the Court being held by Mr. Justice Blatchford and Judge Wallace, when a certificate was signed by them stating as follows: "The Court finds, as a matter of fact, that the injuries to the libellant were occasioned partly through his own negligence and partly through the negligence of the officers of the vessel. It now occurs, as a question of law, whether the libellant, under the above facts, is entitled to a decree for divided damages. On this question the opinions of the judges are in conflict." On motion of the claimant, the question in difference was certified to this Court. Mr. Wilhelmus Mynderse, and Mr. William Allen Butler, for Morris, claimant and appellant. The admiralty rule of division of damages, applicable to collision cases, has never been applied to cases of personal injuries. . . . Mr. James A. Patrick, for Curry, libellant and appellee. Mr. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the Court. The question discussed in the opinions of Judge Brown and Judge Wallace, and presented to us for decision, is whether the libellant was debarred from the recovery of any sum of money, by reason of the fact that his own negligence contributed to the accident, although there was negligence also in the officers of the vessel. The question presented by the certificate is really that question, although stated in the certificate to be whether the libellant, under the facts presented, was entitled to a decree "for divided damages." It appears from the opinion of the District Judge that he imposed upon the claimant "some part of the damage" which his concurrent negligence occasioned, while it does not appear from the record that the award of the $150 was the result of an equal division of the damages suffered by the libellant, or a giving to him of exactly one-half, or of more or less than one-half, of such damages. The doctrine of an equal division of damages in admiralty, in the case of a collision between two vessels, where both are guilty of fault contributing to the collision, had long been the rule in England, but was first established by this Court in the case of The Schooner Catherine v. Dickinson, 17 How. 170, and has been applied by it to cases where, both vessels being in fault, only one of them was injured, as well as to cases where both were injured, the injured vessel, in the first case, recovering only one-half of its damages, and, in the second case, the damages suffered by the two vessels being added together and equally divided, and the vessel whose damages exceeded such one-half recovering the excess against the other vessel. . . . The admiralty rule of the division of damages was laid down by Sir William Scott, in 1815, in The Woodrop-Sims, supra, No. 629, where he says that if a loss occurs through a collision between two vessels, where both parties are to blame, the rule of law is "that the |