question to be determined in every case is, not whether the plaintiff's negligence caused, but whether it contributed to the injury of which he complains.1 This it may do by exposing him to the risk of injury, quite as effectually as if he committed the very act which injured him.2 Neither is it necessary that the plaintiff's negligence should have contributed to the injury in any greater degree than the negligence of the defendant. would refuse to encounter it, incurring it is not contributory negligence (Stoddard v. St. Louis, &c. R. Co., 65 Mo. 514; Railroad Co. v. Ogden, 3 Colo. 499). A captain of a schooner, while a high wind was blowing, tried against advice to run his vessel into Lake Pontchartrain. His schooner was dashed against piles, which defendant, a construction company, had placed, and whose existence was well-known. Held, that plaintiff's negligence was the proximate cause of the mishap (Levy v. Carondeiet Canal Co., 34 La. Ann. 180). Pedestrians ought to exercise increased care and caution in going upon ground covered with snow and ice. When confronted with a dangerous pavement, they must exercise the judgment of an ordinarily prudent man in deciding whether to proceed or return. If they fail to do this, and suffer an injury, the question of contributory negligence is for the jury (Thomas v. New York, 28 Hun, 110; S. P. Durkin v. Troy, 61 Barb. 437; Wilson v. Charleston, 8 Allen, 137; Horton v. Ipswich, 12 Cush. 488; Erie v. Magill, 101 Penn. St. 616; Schaeffer v. Sandusky. 33 Ohio St. 246; Quincy v. Barker, 81 Ill. 300; Centralia v. Krouse, 64 Id. 19; Hoover v. Texas, &c. R. Co., 61 Tex. 503). It is not negligence per se for one who knows that there is ice on the pavement to attempt to pass over it, even at night. He is bound only to exer 8 To cise ordinary care and prudence (Evans v. Utica, 69 N. Y. 166). the same effect, Dewire v. Bailey, 131 Mass. 169; Weston v. N. Y. Elevated R. Co., 73 N. Y. 595; affg. 10 J. & S. 156. See chapter on Highways, post. "The fact that a person voluntarily takes some risk is not conclusive evidence, under all circumstances, that he is not using due care” (Lawless v. Connecticut River R. Co., 136 Mass. 1, per Colburn, J.). S. P. Thomas v. Western Union Tel. Co., 100 Mass. 156; Mahoney v. Metropolitan R. Co., 104 Id. 73. As to servant assuming risks of a dangerous occupation, see chapter on Liabilities of Master to Servant, post. 1 Brand v. Schenectady, &c. R. Co., 8 Barb. 368. 2 Ochsenbein v. Shapley, 85 N. Y. 214. See § 101, post. 3 This is well settled (Wilds v. Hudson River R. Co., 24 N. Y. 430; Bigelow v. Reed, 51 Maine, 325; Grippen v. N. Y. Central R. Co., 40 N. Y. 34; Hoben v. Burlington, &c. R. Co., 20 Iowa, 562. It is so held, even in Illinois (see § 102, post). The law does not undertake, when both parties have been negligent, to measure the degree of negligence of each, nor will it allow a recovery by the party least in fault against the other (McGrath v. N. Y. Central, &c. R. Co., 59 N. Y. 468). § 97. Effect of technical trespass.-The mere fact that the plaintiff, when he suffered the injury, was technically trespassing on the defendant's premises, and would not have been injured if he had not so trespassed, is not of itself enough to convict him of contributory negligence.1 The decisions upon this point, even in the same court, are probably not reconcilable with each other; and they certainly cannot be reconciled by any mere quotations from their language. But a principle can be found which will 1 Daley v. Norwich, &c. R. Co., 26 Conn. 591; Birge v. Gardiner, 19 Id. 507; Brown v. Lynn, 31 Penn. St. 510; Vicksburg, &c. R. Co. V. McGowan, 62 Miss. 682. The keeper of ferocious dogs is liable to a technical trespasser who, without warning, approaches the premises and is attacked by them (Loomis v. Terry, 17 Wend. 496; Marble v. Ross, 124 Mass. 44; Woolf v. Chalker, 31 Conn. 121). In Sawyer v. Jackson (5 N. Y. Leg. Obs. 380), the defendant was held liable for an injury inflicted by his dog upon a boy who came into defendant's premises in the day time in pursuit of a ball; and this although the defendant had put up a notice to "beware of the dog," which, however, the boy had not seen. To the same effect, Sherfey v. Bartley, 4 Sneed, 58; see chapter on Animals, post. The defendant was proprietor of an unfinished house, in which there was a sunk flat beneath the level of the street. On a dark night the plaintiff, while passing, stepped aside into the door or entry of the building for a necessary purpose, and, there being no fence or barrier across it, fell into the sunk flat and broke her thigh bone. Held, that the defendant was liable (Chapman v. Parlane, 3 S. D. 585; Hay, 29). In Bird v. Holbrook (4 Bing. 628) the defendant had put spring guns in the ground, for the obvious purpose of injuring trespassers. Not having put up any notice of warning, he was held liable to a trespasser injured by one of these guns. But that was not a case of negligence, except in omitting to give warning. The gun was intended to do that which it did, and its explosion was as much the willful act of the defendant as if he had fired it with his own hands. In Townsend v. Wathen (9 East, 277), it appeared that the defendant set traps in his wood, baited with strong-scented meat, so near the plaintiff's yard that his dogs could smell the meat without entering the wood. The wood being uninclosed and intersected with roads and paths, the plaintiff's dogs entered it, attracted by the meat, and were caught in the traps. It was held that the plaintiff could recover, notwithstanding his dogs were trespassers See Wooton v. Dawkins, 2 C. B. [N. S.] 412; Jordan v. Crump, 8 Mees. & W. 782; Deane v. Clayton, 7 Taunt. 489, in which plaintiff was not allowed to recover for dog killed by a spike, placed by defendant, with notice. Compare Johnson v. Patterson, 14 Conn. 1; Gray v. Coombs, 7 J. J. Marsh. 478; Hooker v. Miller, 37 Iowa, 613. A person may protect his premises from burglary by setting a spring gun (State v. Moore, 31 Conn. 479). reconcile all decisions which ought to stand, including nearly all reported, disregarding dicta and looking to the real points decided. This principle appears to us to to be be that the plaintiff's trespass, in order to defeat his recovery, must be such as to imply real negligence, from a common-sense point of view, and not in the technical sense which would include every neglect to comply with the letter of the law. Unless the plaintiff has done something which persons of ordinary prudence and moral sense would feel to be careless or morally wrong, involving a reasonable possibility of injury either to himself or to the person upon whose premises he is trespassing, he should not be debarred from his right of action for negligence; but the defendant should be left to recover such damages as he can for the trespass. Thus, an entry upon a vacant, unfenced lot is a trespass, just as truly as an entry into a house with closed doors; but the presumption as to negligence in one case is vastly different from that in the other. In one of those vehement opinions which make some of the Pennsylvania reports such entertaining reading, but such unsafe guides, it was asserted that an entry upon the land of an unfenced railroad stood upon the same footing with an entry into a bedroom;1 but this doctrine confounds all moral and some legal distinctions. The comparison fails at every point. The injury which a stranger does to the railroad company by entering upon its way is infinitesimal, while the risk to himself is great. The injury which he does to his neighbor by secretly entering his bedroom is great, while the risk to himself, if undiscovered, is infinitesimal. In each case, it is true, the effect upon the trespasser's right to sue for damages may be the same; but this will be for very different reasons. If he walks along the track he 1 Phil., &c. R. Co. v. Hummell, 44 Penn. St. 375; see N. Y. & Erie R. Co. v. Skinner, 19 Id. 301. knowingly takes the risk of fatal injuries, and should not recover, for that reason. If he secretes himself in the bedroom he knowingly engages in a gross invasion of his neighbor's rights, and should not recover, for that reason. Most of the reported cases which appear at first sight inconsistent with this proposition, and all of them which are not inconsistent with other and better considered decisions will prove, upon examination, to be cases which turned, not upon contributory negligence, but upon the question whether the defendant owed any duty to persons in the plaintiff's situation, which he had neglected to perform,' 1 Thus it has often been held, correctly enough as a general rule, that no one is bound to anticipate that trespassers will enter upon his premises, and therefore that no one is bound to take precautions for their protection (Philadelphia, &c. R. Co. v. Hummell, 44 Penn. St. 375; Matze v. N. Y. Central R. Co., 1 Hun, 417). See also Munger S Tonawanda R. Co., 4 N. Y. 349; N. Y. & Erie R. Co. v. Skinner, 19 Penn. St. 301; Lygo v. Newbold, 9 Exch. 302; Galena, &c. R. Co. v. Jacobs, 20 Ill. 478; Blyth v. Topham, Cro. Jac. 158. In Bush ข. Brainard (1 Cow. 78) the defendant, making maple sugar, carelessly left a bucket of syrup in some open woodland, of which the plaintiff's cow, then running at large, drank, and it caused her death. Defendant knew that the plaintiff's cattle ran at large, but had never given his permission for them to wander on his land. Held, that defendant was not liable, for the reason that the cow ought not to have been where it was when injured, and would not have been injured if it had not been there. And in all the following cases, usually cited as authorities for the proposition that a trespasser cannot recover because he is a trespasser, the courts really decided that the defendant owed no duty of care toward the plaintiff, having no reason to foresee the presence of any such persons, and being under no obligation to make the place safe for them. These cases, therefore, fall under the general principle already stated ( 8), that where there is no duty there can be no negligence. A traveler on the highway took shelter from a storm in a ruinous house not fenced off from the road, and a wall fell upon and injured him; it was held he could not recover (Lary v. Cleveland, &c. R. Co., 78 Ind. 323). The plaintiff, together with others attending a fair on grounds adjoining defendant's hotel, took refuge in the hotel to escape a storm. The piazza above the room in which plaintiff was gave way by reason of the great weight upon it, injuring plaintiff. Held, there was no actionable negligence on defendant's part (Converse v. Walker, 30 Hun, 596). The roof of defendant's station house, in which deceased took shelter from a storm, was blown off by the wind, and a portion struck and killed him; the defendant was held not liable (Pittsburgh, &c. R. Co. v. Bingham, 29 Ohio St. 364); S. P. Parker v. Portland Pub which is an entirely different matter. Yet nothing is more common than to find the two questions confused with each other in judicial opinions. A large majority of the appar. ently adverse cases, moreover, are railroad cases, in which the entry of the trespasser upon the premises was in its nature an act of negligence, by which he knowingly exposed himself to injury. They have, therefore, no bearing upon the question of the effect of a mere technical trespass. We have been unable to find any case of a mere trespass, in which any different rule is applied from that which is applied by the same courts to the case of one who enters by a bare license.1 In both, the real decision is that the defendant owes no duty of repair or the like, and the plaintiff's conduct forms no material element. § 98. Technical trespass no bar.-The overwhelming weight of authority, both in the number of decisions and in the soundness of reasoning, by which the right of lit lishing Co., 69 Maine, 173. In Vanderbeck v. Hendry (34 N. J. Law, 467) a boy, going through a lumber yard by a passage way frequently used by the public, was injured by the fall of lumber at a point fifty-four feet from the highway; held, that he could not recover. See also Jeffersonville, &c. R. Co. v. Goldsmith, 47 Ind. 43; Morgan v. Pennsylvania R. Co., 7 Fed. Rep. 78. Compare Graves v. Thomas, 95 Ind. 361, as distinguished in Evansville, &c. R. Co. v. Griffin, 100 Id. 221; Cahill v. Layton, 57 Wisc. 600; Davis v. Chicago, &c. R. Co., 58 Id. 646; Bransom v. Labrot, 81 Ky. 638; Hargreaves v. Deacon, 25 Mich. I [child coming on defendant's premises, some distance from highway, fell into an uncovered cistern: no recovery]; McAlpine v. Powell, 70 N. Y. 126 [child of the tenant of a tenement house getting on platform of fire-escape attached to house, fell through defective trap door: no recovery]; Roulston v. Clark, 3 E. 1 For examples of such cases, see |