means, however, of checking this estimate, but the loss under both the last-mentioned heads is certainly very great.

In conclusion, we ought to state that the foregoing article was written before the issue of the bill to amend the Companies Acts, recently introduced by the Earl of Dudley. That bill will be found to deal with most of the matters which have been discussed, and to adopt in many cases the remedies above proposed. Thus it provides for a registration of mortgages, and makes the preparation of an annual balance sheet compulsory. It also aims at preventing any improper allotment; it requires every proposed director to sign the prospectus, and specifies matters which the prospectus must contain, and imposes liabilities on directors and promoters. The design of the bill is good, but, after considering it, we venture to think that the remedy for the mischiefs in question, which we have above proposed, is likely to be far more efficacious.

A. D. TYSSEN.

III. THE DOCTRINE OF CONTRIBUTORY

THE

NEGLIGENCE.

HE rule of the common law with regard to contributory negligence, established by many earlier cases, was stated in the following terms in the judgment of the Exchequer Chamber in Tuff v. Warman [1858] (5 C. B. N.S. 573):-"It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, 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. In the first case the plaintiff would be entitled to recover; in the latter, not, as, but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such, that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff."

The rule so stated was fully recognized and adopted by the House of Lords in Radley v. London & North Western Railway Co. [1876] (L. R. 1 App. Cas. 754), and was thus stated by Lord Penzance :-"The law in these cases of negligence is, as was said in the Court of Exchequer Chamber, perfectly well settled and beyond dispute. The first proposition is a general one to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet, if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. This proposition, as one of law, cannot be questioned. It was decided in the case of Davies v. Mann (10 M. & W. 546), supported in that of Tuff v. Warman (5 C. B. N.S. 573), and other cases, and has been universally applied in cases of this character without question." The other law lords who took part in the case, viz. the Lord Chancellor (Lord Cairns), Lord Blackburn, and Lord Gordon, expressed their entire concurrence. But although the rule of

law is thus perfectly well established, its precise meaning and the proper application of it in practice have not always been clearly understood. The meaning of it has been thus explained by Fitzgerald, B., in Doyle v. Kinahan [1869] (Ir. R. 4 C. L. 150), in which he says, in reference to the judgment in Tuff v. Warman: "I think that Mr. Justice Wightman, in the passage of his judgment relied on by the plaintiff here, was simply explaining the proposition that where the plaintiff so far contributes to the damage by his own negligence, that but for such negligence the damage would not have accrued, the plaintiff cannot recover. He shows that the proposition involves two allegations: (1) that the plaintiff's negligence was a cause, and (2) that it was a contributory cause. Mere neglect, he says, will not do; it must be a cause in fact of the damage that is, a matter but for which in the state of things as they were, the damage would not have occurred: but it must be also, as a cause, contributory with the defendant's neglect; and this, as it seems to me, it would not be if, but for the defendant's neglect, it would not have been a cause of damage at all. That which alone can entitle the plaintiff to recover is, that the defendant's default was the entire cause of the injury." The rule may be illustrated by the following examples. A driving, in broad daylight, on his proper side of the road is run into by a trap belonging to, and driven by B, whose horse was running away and had become unmanageable and B had previously known that his horse had a propensity to run away. A had seen the approaching runaway on his side of the road in time to have got out of the way, but took no step to do so. This last fact being proved or admitted, A is not entitled to recover against B ; because although B was guilty of negligence in driving a horse which he knew to be in the habit of running away, yet A had the opportunity of getting out of the way, and thus avoiding the collision, and his neglect to do so was a contributing cause of the accident; whilst B, in the state of things as they were

when the two vehicles were approaching each other, having no control over his horse, was unable to avoid the mischief. On the other hand, A on a dark night, driving on his own side of the road, but without any lights, is run into and damaged by B, who is driving on the wrong side of the road and at an excessive pace, but with his horse under control and his lamps lighted. A brings his action against B, whose negligence in being on the wrong side and in going at an excessive pace is admitted, but who alleges that the accident was brought about by A's contributory negligence in not having any lights. To this A answers, True! I had not my lamps lighted, but, even so, you might by the ordinary precaution of keeping to your own side of the road have avoided the mischief. And if this latter view is accepted by the jury, then A is entitled to recover, notwithstanding that the occur rence was facilitated by his own negligence, because B's negligence was in fact the decisive cause of the collision. The most usual method of directing juries upon this question is to tell them that they must decide whether the negligence of the plaintiff or that of the defendant was the "proximate cause" of the mischief, though probably "decisive cause" would, as suggested by Sir Frederick Pollock, be a more strictly accurate phrase. It must not be supposed that, in order to relieve the plaintiff from the consequences of having himself been guilty of negligence conducing to the accident, he must show that the mischief might have been avoided by some new physical act on the part of the defendant. For instance, to take the case of a collision, in which, so far as it was attributable to the defendant, the cause was to be found in his being in a state of drunkenness, it would be manifestly absurd to suggest, that if he was so drunk as to be quite incapable of any physical exertion, then the plaintiff, being himself also in some degree to blame, could not recover, whilst if the defendant was only partially drunk so as not to be incapacitated from physical exertion, the plaintiff might recover.

There has been some difference of opinion as to whether the question of contributory negligence, if there is any evidence of it, can ever be withdrawn from the jury. Lord Penzance expressed the opinion in Dublin, Wicklow, & Wexford Railway Co. v. Slattery [1878] (L. R. 3 App. Cas. 1155) that it could not. He says: "The proof of the first issue, which is that of the defendants' negligence, is upon the plaintiff; the proof of the second, which is that of contributory negligence, lies upon the defendants. Upon either of these issues it is competent to the judge to say negatively that there is not sufficient evidence to go to the jury; but it is no more competent to him to declare affirmatively that one of them is proved than the other." But the fallacy underlying Lord Penzance's reasoning is, as shown by Lord Blackburn in the same case, that he fails to recognize that the onus of proof may be shifted from one party to the other during the course of the trial; and if the onus at any stage of the case is one way, and there is no reasonable evidence to rebut it, the judge is bound to direct the jury to find against the party on whom the onus then lies. So that if, on the undisputed facts of the case, both parties are to blame, the onus then lies on the plaintiff to show that the defendant might, by the exercise of ordinary care, have avoided the consequences of the plaintiff's contributory negligence; and if he fails to give any reasonable evidence of this, there is nothing to discharge this onus, and the judge ought to withdraw the case from the jury. "It is of great importance," Lord Blackburn says, " to see on whom the onus of proof lies; for if the state of the case is such that, on the admissions on the record and the undisputed facts. given in evidence on the trial, the onus lies on either side, the judge ought to give the direction, first, that if there are no additional facts to alter this, the jury ought to find against that party on whom the onus now lies. And (according to what the state of the evidence is) he should either direct the jurors, that if they believe the witnesses there is reasonable