Odger's English Common Law

;
DEFENCES. 497
act of God, become impossible. If, however, a man contracts that he will
be liable for the damage occasioned by a particular state of circumstances,
or if an Act of Parliament declares that a man shall be liable for the
damage occasioned by a particular state of circumstances, I know of no
reason why a man should not be liable for it, whether brought about by the
act of man or by the act of God. There is nothing impossible in that
which, on such an hypothesis, he has contracted to do, or which he is by the
statute ordered to do, namely, to be liable for the damages." l
(iii.) In both the above defences the defendant, as he
always may, wholly denies that there was any negligence on
his part. Sometimes, however, he is driven to admit that he
was guilty of some negligeDce, which may have been one of
the causes conducing to the plaintiff's injury. But at
the same time he asserts that the plaintiff was himself
negligent, and that it was this negligence on the part of the
plaintiff, and not his own, that was the real cause of
the injury for which the plaintiff now seeks to recover
damages from him. This is called the defence of contributory
negligence. But the negligence relied on as contributory
must be the negligence of the plaintiff himself or of those
who are really his servants or agents, acting within the scope
of their employment
2 and it must be the proximate and
decisive cause of the injury which he has received.
" 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 ; if by ordinary care he
might have avoided them, he is the author of his own
wrong ; " 3 he has, therefore, no right of action. 4
1 Per Lord Cairns, L. C, in River Wear Commissioners v. Adamson (1877), 2
App. Cas. at p. 750.
2 It was formerly held that a plaintiff, who was guilty of no negligence himself,
could not recover damages from a negligent defendant, if there was any contributory
negligence on the part of a person with whom the plaintiff was identified,
e.g., the engine-driver of the train, or the driver or conductor of the omnibus, in
which the plaintiff was seated at the time of the collision. But this doctrine is now
exploded : The Bernina (1887), 12 P. D. 36 ; affirmed (as Mills v.
App. Cas. I ; and see Harris v. Perm $ Co.. [19031 2 K. B. 219.
3 Per Parke, B., in Bridge v. Grand Junction Ry. Co. (1838),
Armstrong) 13
3 M. & W. at
p. 248.
4
Tuff v. Warman (1857), 2 C. B. N. S. 740 ; 5 lb. 573 ; Davey v. L. # S. W. By.
Co. (1883), 12 Q. B. D. 70. As to the onus of proof in such cases, see Wakelin, v. L. Jf-
S. W. Ry. Co. (1886), 12 App. Cas. 41, applied in Pom/ret v. L. fy Y. Ry. Co.,
11903] 2 K. B. 718. As to Admirfflty rule, see Cayzer v. Carron Co. (1884), 9 App.
Cas. 873.
B.C.L. 32