that the jury rightly awarded her 1,000l., and each of the children 1,000Z.1

Rules for ascertaining where negligence exists.-Though the statute of 1847, already referred to, gave an impetus to the remedy for negligent killing, it did not profess to introduce any new rule of viewing the circumstances and estimating the degree in which the negligence, which is the basis of the action, exists. The old rule on that point remained unaffected, and the same negligence, which is a cause of action if the injury be slight and not mortal, is equally the cause of action and redress if the injury be mortal, and in defining more exactly this kind of remedy, a few subsidiary rules are commonly deemed settled.

The person injured or killed must not have been himself negligent. One rule, by which this class of remedies is qualified, is, that the negligence of the defendant must be the sole, or all but the sole, cause of the accident, and nothing in the conduct of the deceased or injured person must have been a proximate cause of it, or, as it is called, a contributory cause; for if it were once allowed for courts and juries to enter into nice inquiries as to how much or how little of the joint result was attributable to the conduct of each of two persons, the injurer and the injured, there would be no end to the inquiry, and it never could be solved satisfactorily. Hence it is said that the cause of this kind of action must be due wholly to the negligence of the defendant. Accordingly, if the deceased has himself been negligent, and such negligence is a proximate cause of the accident, then there will be a complete defence, since it cannot then be said that his death or injury was caused by the mere wrongful act of another."

The character of the negligence of deceased as regards its being a proximate cause of death is important in all those cases where some negligence is set up against the deceased, and it is desired to know when that is deemed a bar to redress. It is not enough to show that the plaintiff, or the person killed, was guilty of some negligence, unless such negligence was one of the proximate causes of the

1 Pym v G. N. R. Co., 2 B. & S. 759; 4 B. & S. 396. 2 Butterfield v Forrester, 11 East, 60; Powell Gen. Steam Co., 5 E. & B. 195; Witherby v Regent's Canal, 12 C. B., N. S. 2.

accident, for the prior negligence may have had nothing to do with what followed. Thus if a man were to be found sleeping on a highway, and the driver of a vehicle coming up might have avoided the sleeper, but kept to his side of the road and ran over him, this would be as much a cause of action as if the plaintiff had committed no negligence at all; in other words, the plaintiff's negligence is too remote to be considered in the question.1 And the true rule to be left to a jury in such cases as this 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.2

Contributory negligence in the case of coaches racingThis doctrine of contributory negligence has been carried to an extent somewhat remarkable in cases of collision of carriages and ships, and a derivative or constructive negligence of the driver or pilot, imputed to a passenger, which in no sense resulted from anything the plaintiff did or could do in his own person relating to the matter. Thus where two coaches are racing, and the respective drivers are each guilty of negligence, it has been held, that a passenger on the A coach will be estopped from recovering damages for negligence of the B coachman who upset the A coach. The reason of this apparently anomalous doctrine is said to be, that, as each passenger has trusted his own driver by riding in his coach, he has so identified himself with his own driver that the latter's negligence is deemed his own. At least there is no reason why he should be in a better position than his driver; and hence no damages are recoverable against the opposite driver. His only remedy in such a case is to recover damages from his own

1 Davis v Mann, 10 M. & W. 546; Radley v L. & N. W. R. Co., 44 L. J., Exch. 73; Greenland v Chaplin, 5 Exch. 248. The first of these cases was that of a donkey lying on the road, but precisely the same principle of liability applies between man and man in cases of negligent killing or injuring.

2 Tuff v Warman, 5 C. B., N. S. 585; Walton v L. & Brighton R. Co., H. & R. 424.

driver.1 In short, by his own act and contract he has converted himself into something as helpless, as if he were only a bale of goods in the driver's custody. And for a somewhat similar reason it has been held, that, if a nurse or other temporary guardian is carrying or leading a child of tender years, and by the nurse's negligence in part, combined with the negligence of the railway company or carrier, the child is injured, the infant cannot recover damages in its own right, because it is deemed to have been so identified with its nurse that the nurse's negligence is imputed to the child and forms a bar to any such remedy. The reason given for this decision is that as the child is little else but a chattel, the contract is necessarily made with the nurse, and one of its conditions is that the nurse shall take care of the child. Hence, on this condition being broken, the nurse alone is to blame, and neither nurse nor child can recover damages.

2

Negligence implies a want of wilful intention.-While negligence is distinguished from mere accident on the one hand, it is distinguished from wilfulness and intentional injury on the other. When it is said that negligence is the legal cause of injury or pain to the body, it is not meant that the negligent person should have distinctly intended the injury which results. It is rather the contrary, for negligence consists in the absence of a specific intention to injure, but in the presence of a reckless or careless disposition as to whether the act was likely to do injury or not, or at least in the absence of a general knowledge such as a reasonable person would have that the act was dangerous, and yet where no precaution to guard against that danger was taken. Thus where a man in the train bands used his gun so carelessly that it went off and injured a comrade, the action was maintainable. And one judge laid down the rule that no man is excused of a trespass, unless it is judged utterly without his fault.1 Some carelessness is thus always an ingredient of the action, though it is often loosely stated, that a man may be liable for an accident or misfortune. Such a statement

1 Thorogood v Bryan, 8 C. B. 115; Armstrong v Lancashire R. Co., 44 L. J. Exch. 89. 2 Waite N. E. R. Co., E. B. E. 719. 596; Weaver v Ward, Hob. 134.

3 Underwood v Hewson, 1 Str. 4 Hob. 134.

must be always guarded with the qualification, that there must be some carelessness mixed up with such accident or misfortune in order to found an action against him who displayed it. Hence it has been found impossible to sustain any action, for example, where a horse is frightened by a sudden noise or clap of thunder and runs down some person; because this is an event which no care can guard against. So where a sudden flood sweeps away part of a railway, and passengers are injured, the railway company are not liable.2 And where a man, while repairing it, suddenly falls through the roof of a railway station and causes injury to a passenger below, the railway company is not liable to the passenger, for such an accident could not be helped.3

On the other hand, though it is often difficult to define the ingredient of negligence, this' much is clear, that the act done always implies a knowledge, or an unreasonable want of knowledge, that such act may injure others, coupled with omission to guard against such mischief by any reasonable means. Thus negligence is easily inferred from such conduct as the following:-To tell a child to fetch or do something to a loaded gun:1 to allow a man to carry an explosive substance without some warning what it is, for there is an implied duty in such case to give such notice:5 to spur a horse while people are standing near:6 to leave a horse and cart unattended in the street where children are playing about, and yet children's curiosity and tendency to incur danger are not to be used as a handle to found liability when the fault is the child's alone, and nobody else is to blame. And where the keeper of baths and washhouses has a dangerous machine, of which no warning was given to a customer using it, such keeper is liable.

9

A chain of accidents from negligence.-Another difficulty

1 Wakeman v Robinson, 1 Bing. 213; 8 Moore, 63; Hammack v White, 11 C. B., N. S. 588; Holmes v Mather, 44 L. J., Exch. 176. 2 Withers v North Kent R. Co., 27 L. J., Exch. 417. 3 Welfare v London & Brighton R. Co., L. R., 4 Q. B. 693. 4 Dixon v Bell, 5 M. & S. 198. 5 Farrant v Barnes, 11 C. B., N. S. 553; Brass v Maitland, 6 E. & B. 470. 6 North Smith, 10 C. B., N. S. 572. 7 Lynch Nurdin, 1 Q. B. 38. 8 Mangan v Atterton, L. R. 1, Exch. 239; Witherby v Regent's Canal Co., 12 C. B., N. S. 2. v Sunderland, 6 H. & N. 565.

9 Cowley

still arises, where there is a chain of causes, and it is necessary to define where the line is to be drawn, in order to fix the liability, for the causa causans is to be distinguished from the causa sine quâ non. The law acts on the maxim that it is the proximate cause, which is looked to as a ground of liability, and injuries arising out of ulterior circumstances are deemed not attributable in the eye of the law to the wrongful act, but rather to the chances of life. And indeed if remote antecedents were inquired. into, the inquiries would be endless and objectless. It is impossible, however, to state this as a universal rule, since there are cases where the original cause continues to be the dominant cause all through a variety of intermediate events. Thus, if the negligence of the driver of a coach causes the horses to run away, and a passenger, reasonably apprehending danger, jump off to save his life, and thereby break his leg, the first negligence is deemed the dominant cause of this broken leg.1 If a person throw a squib into a crowd, and first one and then another in self-defence catches it and throws it off, till at last it puts out a man's eye, the latter is entitled to an action against the first thrower, as if it had been aimed at him from the first, or at least, as if the intervening acts of others had merely given the missile a course somewhat more circuitous.2 And hence this was deemed an instance of "trespass" rather than of " case," when those distinctions were deemed of consequence. The case of the squib may be treated as one of a series of mechanical changes only in the direction of the squib. In other cases it may be difficult to trace the first cause so steadily, when the voluntary action of third parties intervenes, or unexpected incidents arise; and the true limit to the rule seems to be, that those consequences only will be deemed to flow from the act which in the ordinary course of events are known by all intelligent men so to flow. Thus, when the negligence of a railway company caused a family to walk home some miles during a wet night, and the mother of young children caught cold, this cold was deemed too remote and unusual a consequence to be taken into account as arising from the negligent act.3

1 Jones v Boyce, 1 Stark. 493. 2 Scott & Shepherd, 2 W. Bl. 892 ; 3 Wils. 403. 3 Hobbs v L. & N. W. R. Co., 44 L. J., Q. B. 49.