Hence the law

there is reason to apprehend danger, whether it may proceed from the wrongful act of another or not, then the law will not justify a person in resting his safety on the presumption that others will act rightly, and in going forward and taking his chances. requires a person about to cross a railroad track, though at a public crossing, where it is the duty of the company to ring the bell and sound the whistle, to make a fair use of his faculties, to ascertain if there is a train approaching, and if he does go on the track without stopping, looking and listening, he will not be able to recover, though the company have also been negligent in not doing their duty in giving the required signals."

Where the erroneous act of plaintiff through which he suffers injury, is caused by being placed in a position of apparent, sudden or imminent danger, which has been caused without his fault, he cannot be charged with contributory negligence for failing, under stress of circumstances, to make the safest step, or choose a means of avoiding the injury which might have suggested itself if he had had more time to deliberate on his course of action. "If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such circumstances, if he uses his judgment honestly, is not responsible, although he might

"Thomp. on Neg. Sec. 190; citing, C. R. Co. v. Smith, 78 Ga. 694; R. R. Co. v. Houston, 95 U. S. 697; Murray v. Pontchartrain R. Co., 31 La. Ann. 490.

have done better if he had acted differently." It is said the rule is specially applicable to children of immature years and imperfect experience; and on principle it must be peculiarly applicable in the case of women, very old men, and adults who lack experience in the particular situation, or whose faculties are imperfect. Under these circumstances the law makes allowance, and leaves the circumstances to the jury, to find if the party acted rashly and under an undue apprehension of the danger. But the rule is otherwise if the person injured has voluntarily put himself in the position of danger, and then loses control over his actions so that he is injured, thus if one has come into a place of danger through voluntary intoxication, or other misconduct on his part, and is injured, he cannot complain of concurring negligence of another contributing to his injury.10

Where one is injured by his own mistaken action under impulse of fear or imminent danger into which he has been thrust by the negligence of another he may recover, if he acted as a reasonably prudent person might be expected to act under all the circumstances, and this is a question for the jury to determine from

Penna. R. Co. v. Werner, 89 Pa. St. 59; Pa. R. Co. v. Snyder, 55 Ohio St. 342; Hagerstrom v. W. Chi. St. Ry. Co., 67 Ill. App. 63.

"Neilson v. Hillside Coal Co., 168 Pa. St. 256; Galena v. Yarwood, 17 Ill. 509.

10 Strand v. Chicago R. Co., 67 Mich. 380; Thomp. on Neg. Sec. 196.

the facts of the case.1 This is also the rule where one has acted erroneously in attempting to rescue another from imminent danger, as the law regards human life so highly as not to impute negligence to one who endeavors, according to his best judgment under the circumstances, to preserve it. Under such circumstances, when a human life hangs in the balance, the law does not require a person to stop and weigh the danger to himself of an attempt to rescue another. The rule also applies to one who endeavors to save another from injury which is threatened by reason of the negligence of a third person. Having acted with reasonable prudence in attempting to rescue the imperiled person from the danger, and being injured in consequence, the plaintiff may recover from the party whose negligence caused the injury to himself and the danger to the person sought to be rescued."

Generally, the rule of contributory negligence prevails notwithstanding the injury is received by the plaintiff by reason of the failure of the defendant to perform duties imposed by statute, known as negligence per se, or negligence as a matter of law. Neither do statutes

1Wesley City Coal Co. v. Healer, 84 Ill. 126; Clarke v. Penna. Co., 132 Ind. 199; Lincoln, etc., Co. v. Nichols, 37 Neb. 332; Galena, etc., R. Co. v. Yarwood, 17 Ill. 509.

2 Eckert v. L. I. R. Co., 43 N. Y. 503; Penna. Co. v. Langendorf, 48 Ohio St. 316.

3Liming v. Illinois, etc., R. Co., 81 Ia. 246; Linnehan v. Sampson, 126 Mass. 506; Wasmer v. D. &. R. R. Co., 80 N. Y. 212.

*Krause v. Morgan, 33 Ohio Leg. News, 546; Cleveland, etc.,

5*

requiring the taking of special precautions by owners and operators of dangerous machinery abrogate the ordinary rules of contributory negligence. And statutes giving a right of action to surviving relatives of an injured party, do not change the rule of contributory negligence, so that if the party himself could not have maintained the suit, neither can those who represent him.6

8

7

Sec. 401-71. SAME SUBJECT-CONTRIBUTORY NEGLIGENCE AS MODIFIED BY THE DOCTRINE OF COMPARATIVE NEGLIGENCE PREVAILING IN A FEW STATES. -In an early case in Illinois, the doctrine of comparative negligence, which has since been repudiated in that state, is thus stated, after a review of the English cases and American cases bearing on the subject: "It will be seen from these cases that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested R. Co. v. Crawford, 24 Ohio St. 631; Gay v. Winter, 34 Cal. 153; Boland v. Mo. R. Co., 36 Mo. 484. But see, Welty v. Indianapolis, etc., R. Co., 105 Ind. 55.

"Reynolds v. Hindman, 32 Ia. 146.

Gay v. Winter, 34 Cal. 153; 24 Ohio. St. 631.

"Galena, etc., R. Co. v. Jacobs, 20 Ill. 478, 496. See also, 69 Ill. 174; 71 Ill. 346; 80 Ill. 119; 123 Ill. 38.

8 Lake Shore, etc., R. Co. v. Hessions, 150 Ill. 546; 115 Ill. 358. The rule now being that the plaintiff in order to recover must have been in the exercise of ordinary care for his own safety, and show that the injury resulted from the negligence of the defendant.

by both parties; for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to entitle him to recover. We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and whenever it shall appear that the plaintiff's negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action." In Georgia this doctrine is thus stated, "that, although the plaintiff be somewhat in fault, yet if the defendant be grossly negligent, and thereby occasioned or did not prevent the mischief, the action may be maintained.” A modified form of the doctrine prevails in Kansas.10

The doctrine of comparative negligence is generally repudiated, and ridiculed by text writers and courts of

9

Augusta, etc., R. Co. v. McElmurry, 24 Ga. 75, 80. In Georgia, by statute, the plaintiff may recover, though guilty to some extent, of contributory negligence, but such negligence may be shown in mitigation of damages. 87 Ga. 6; 112 Ga. 863. In Wisconsin it is said that the plaintiff may recover though lacking in extraordinary care, or guilty of slight negligence, as slight negligence is not slight want of ordinary care. Dreher v. Fitchburg, 22 Wis. 675; Griffin v. Willow, 43 Wis. 509.

10 Union Pac. R. R. Co. v. Rollins, 5 Kan. 167; 29 Kan. 169; 57 Kan. 154.