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loss must be apportioned between them, as having been occasioned be the fault of both of them." This rule was approved by the House of Lords, on an appeal from Scotland, in Hay v. Le Neve, 2 Shaw, 395, in 1824. The rule of the equal apportionment of the loss where both parties were in fault would seem to have been founded upon the difficulty of determining, in such cases, the degree of negligence in the one and the other. It is said by Cleirac (Us et Coutumes de la Mer, p. 68) that such rule of division is a rustic sort of determination, and such as arbiters and amicable compromisers of disputes commonly follow, where they cannot discover the motives of the parties, or when they see faults on both sides.

As to the particular question now presented for decision, there has been a conflict of opinion in the lower Courts of the United States. . .

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Contributory negligence, in a case like the present, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel; and while, on the one hand, the Court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the District Judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libellant, in a case like the present, where their fault is clear, provided the libellant's fault, though evident, is neither wilful, nor gross, nor inexcusable, and where the other circumstances present a strong case for his relief. We think this rule is applicable to all like cases of marine tort founded upon negligence and prosecuted in admiralty, as in harmony with the rule for the division of damages in cases of collision.

The necessary conclusion is, that the question whether the libellant, upon the facts found, is entitled to a decree for divided damages, must be answered in the affirmative, in accordance with the judgment below.

. . Whether, in a case like this, the decree should be for exactly onehalf of the damages sustained, or might, in the discretion of the Court, be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it. Decree affirmed.

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THIS was an action on the case for obstructing a highway, by means of which obstruction the plaintiff, who was riding along the road, was

thrown down with his horse, and injured, etc. At the trial, before BAYLEY, J., at Derby, it appeared that the defendant, for the purpose of making some repairs to his house, which was close by the roadside at one end of the town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. That the plaintiff left a public house not far distant from the place in question at 8 o'clock in the evening in August, when they were just beginning to light candles, but while there was light enough left to discern the obstruction at one hundred yards distance; and the witness who proved this, said that if the plaintiff had not been riding very hard he might have observed and avoided it; the plaintiff, however, who was riding violently, did not observe it, but rode against it, and fell with his horse and was much hurt in consequence of the accident; and there was no evidence of his being intoxicated at the time. On this evidence BAYLEY, J., directed the jury, that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant, which they accordingly did.

Vaughan, Serjt., now objected to this direction, on moving for a new trial; and referred to Buller's Nisi Prius 26, where the rule is laid down, that "If a man lay logs of wood across a highway, though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action."

BAYLEY, J. The plaintiff was proved to be riding as fast as his horse could go, and this was through the streets of Derby. If he had used ordinary care he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault.

LORD ELLENBOROUGH, C. J. . . . One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action: an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Rule refused.

633. GREENLAND v. CHAPIN

EXCHEQUER OF PLEAS. 1850

5 Exch. 243

CASE for negligence in navigating the defendant's steamboat, whereby it struck against another steamboat, on which the plaintiff was a passenger, and, in consequence, his leg was broken. Plea, not guilty.

At the trial, before POLLOCK, C. B., at the Middlesex Sittings after last Michaelmas Term, it appeared that the plaintiff was a passenger on board a steamboat called "The Sons of the Thames," which was going from Westminster to London Bridge. The defendant's steamboat, called "The Bachelor," was going the same way, and, as the

vessel approached the Adelphi Pier, "The Bachelor" struck "The Sons of the Thames" on the bow, where the anchor was carried, and, in consequence, it fell upon and broke the plaintiff's leg. There was conflicting evidence as to the degree of negligence attributable to the respective steamboats, and especially as to the propriety of the mode in which the anchor on board "The Sons of the Thames" was carried in the bow of the vessel. The learned Judge told the jury, that if they were of opinion that the collision was owing to the bad navigation of "The Bachelor," they should find a verdict for the plaintiff; but if they thought that there was any negligence, either in the stowage of the anchor, or in the plaintiff putting himself in the place where he was, on board "The Sons of the Thames," they should find for the defendant. The jury having found a verdict for the plaintiff, with £200 dam ges, Shee, Serjt., in last Hilary Term obtained a rule nisi to set aside the verdict as against evidence, no objection being taken as to the mode in which the question was left to the jury.

Humfrey and A. Fry showed cause (April 27). The question of negligence was one peculiarly for the jury, and their finding ought not to be disturbed unless it is manifestly wrong. The case was left to the jury too favorably for the defendant, for, as the collision arose from the negligent navigation of the defendant's vessel, it was immaterial in what way the anchor was placed on board the other vessel. The general rule of law, as laid down in Davies v. Mann, [post, No. 664,] is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover. PARKE, B., there says, "This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company, 3 M. & W. 244, where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could by ordinary care have avoided the consequences of the defendant's negligence." Even if the jury had thought that the mode of carrying the anchor was improper, the defendant would nevertheless be liable for injury caused by his negligent conduct in striking the anchor. Sills v. Brown, 9 C. & P. 601. . . .

Shee, Serjt., Bramwell, and A. W. Simpson, in support of the rule. The plaintiff cannot recover if the injury in part arose from the negligent stowage of the anchor. . . . The true principle is, that the person injured cannot recover if negligence on his part conduced to the accident. Here three things concurred to cause the injury, viz, the plaintiff placing himself on a dangerous situation, the anchor being improperly stowed, and the defendant's vessel striking the other. This case is governed by Butterfield v. Forrester [supra, No. 632], where Lord ELLENBOROUGH said, "One person being in fault will not dispense with another's using ordinary care for himself."

POLLOCK, C. B., now said: In this case (which is very analogous to Rigby v. Hewitt [ante, No. 430, Book II], and where the same question might have arisen) the plaintiff recovered a verdict with £200 damages. The foundation of the action was, that a steamboat, belonging to the defendant, had been so negligently conducted that it ran against a steamboat on board of which the plaintiff was a passenger, in consequence of which an anchor, which was displaced, fell over and broke the plaintiff's leg. At the trial, the jury found that the management of the vessel on board which the plaintiff was, was right, and that the conduct of the defendant's vessel was negligent and wrong. . . . My brother Shee contended, that the accident in part arose from the negligent stowage of the anchor, and from the plaintiff being in a part of the vessel where he ought not to have been. But the jury negatived both these propositions. . . . I must own that, on the fullest consideration which I can give to the result of the evidence, I am not prepared to say that I am dissatisfied with the verdict; the rule will therefore be discharged. But I may add that, on consideration, I am of opinion that the law, as laid down by me in this respect, was not correct. I entirely concur with the rest of the Court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, "Part of that mischief would not have arisen if you yourself had not been guilty of some negligence." I think that where 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.

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634. HEIL v. GLANDING. (1862. 42 Pa. St. 493, 499.) STRONG, J. The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the other, is, not that the wrong of the one is set off against the wrong of the other; it is that the law cannot measure how much the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he would obtain from the other party compensation for his misconduct. It is obvious, then, that it can make no difference against whom his fault was primarily committed. If he has suffered in consequence of his own fault, the law gives him no remedy.

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635. KANSAS PACIFIC RAILWAY Co. v. POINTER. (1874. 14 Kans. 37, 50.) BREWER, J. Logically, the wrong-doer should always compensate the wrong, and the injury always be entitled to relief. When the wrong of both parties contributes to the injury, the law declines to apportion the damages, and so leaves the injured party without any compensation. This is not strictly justice. The wrong-doer causing injury ought not to be released from making any compensation, simply because the injured party is also a wrong-doer and helped to produce the injury. But many considerations, especially the difficulty of correctly apportioning the damages, and determining to what extent the wrong of the respective parties was instrumental in causing the injury, uphold the rule so universally recognized that where the wrong, the negligence, of both parties contributes to the injury, the law will not afford any relief..

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SUB-TOPIC C. THE GEORGIAN AND FRENCH RULE

(1902.

L'art. 407,

636. CH. LYON-CAEN & L. RENAULT. Traité de droit commercial. 3d ed., Vol. VI, § 1011, p. 132.) Faute commune des capitaines. Code de Commerce, n'a pas prévu tous les cas possibles d'abordages même au point de vue des dommages causés aux navires seuls. Il peut y avoir, et c'est là un cas assez fréquent, faute commune de la part des deux capitaines. Qui doit supporter les dommages soufferts par les navires? Dans le silence de nos lois, il faut s'en référer aux principes généraux. Or, d'après ces principes, quand deux personnes ont commis une faute commune, le dommage se repartit entre elles d'après le degré respectif de leurs fautes, sauf à faire la repartition par moitié, si l'on ne parvient pas à comparer exactement les fautes. En matière d'abordage, s'il y a faute commune, les propriétaires des navires supportent, par suit, les dommages dont il est fait masse en proportion du degré des fautes des capitaines; mais, si l'on ne parvient pas a fixer le degré respectif des faute, la repartition se fait par moitié. . . .

Deux autres systemes principaux se partagent les législations. En Angleterre, les dommages se partagent par moitié sans considération du degré respectif des fautes (loi du 5 aout 1873 sur l'établissement d'une Haute Cour de Justice (art. 25, 9). Les Codes de commerce italien (art. 662), roumain (art. 674), hollandais (art. 535), espagnol (art. 827), chilien (art. 1130), argentin (art. 1263), admettent une sorte de compensation entre les fautes, par suite de laquelle, sans qu'il y ait a se préoccuper de leur gravité respective, chacun supporte le dommage subi par son navire.

De ces divers systemes, le premier, adopté en France, en Allemagne (Code de commerce de 1897), en Belgique et en Portugal, dôit être préféré. On allègue contre lui qu'il donne au juge à résoudre une question insoluble, l'appelant à comparer les degrés respectifs des fautes. Mais l'objection n'est pas décisive; on exagère en parlant là d'une question insoluble. Il y a des cas ou elle peut être résolue, et lorsqu'elle ne peut pas l'être, le juge a la ressource d'adopter le partage par moitié. Puis, il est exorbitant d'admettre ou un partage par moitié ou l'obligation pour chacun de supporter le dommage souffert par son navire, quand la faute de l'un est très légère et celle de l'autre très lourde. . . .

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637. MACON & WESTERN RAILROAD COMPANY v. WINN SUPREME COURT OF GEORGIA, 1858

26 Ga. 250

CASE, and motion for new trial, in Bibb Superior Court. Tried before Judge POWERS, at November Term, 1857.

This was an action on the case, brought by Malinda Winn, a minor, by her next friend, Cicero A. Tharpe, against the Macon and Western Railroad Company, to recover damages for injuries received by plaintiff, from the negligent running of their cars. The case was submitted to a special jury on the appeal, who found for the plaintiff $7,000. Whereupon, defendant moved for a new trial, which the presiding Judge refused, and defendant excepted. . . .

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