Page:Federal Reporter, 1st Series, Volume 4.djvu/886

 872 ���FEDERAL REPORTER. ���"tlmt she did not think it her business to clean out the cat- tle-guards." In this she was mistaken. ■ She might, at small expense compared to the heavy damages she claims, have employed boys or men to watch these gaps day and night, and thereby have saved her crops. In some way it was her duty to bave protected them, and her failure was contributory negligence, under any ruie which may be adopted on that Bubject. Negligence may consist in either f ailing to do what, under the circumstances, a reasonable and prudent man would ordinarily have done, or in doing what he would not have done. The question in such cases is — First, whether the damage waa occasioned entirely by the negligence or im- proper conduct of the defendants ; or, second, whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that, but for such negligence or want of care and caution on his part, the misfortune would not bave happened. Railroad v. Jones, 95 U. S. 439, 442; Trow v. Railroad, 24 Vt. 487; Stuek v. Railroad, 9 Wis. 202; 21 Albany Law Jour. 404. �The mistake of petitioner is that she seeka to impose too exclusively on the defendant company the duty of protecting this crop, and to relieve herself too entirely from ail respon- sibility in the matter. If one negligently leave a gate open, and the owner sees it, and passes it frequently and wilfully and obstinately, or, through gross negligence, leaves it open ail summer, and cattle get in, it is his own folly. Locker v. Darnon, 17 Pick. 284, 288. And, if the party injured bas it in his power to take measures by which his loss may be less aggravated, this will be expected of him. The law will not permit him to throw a loss upon another arising from causes for which the latter may be responsible, if by common pru- dence the damage eould be prevented. Miller v. Mariners" Chiirch, 7 Me. .51, 50; Simpson v. Keokuk, 34 lowa, 568; Lit- tle V. McGuire, 38 lowa, 560. Where trespass was committed by wroiigfuUy removing part of a fence, damage to crops was refused because the plaintiff had neglected to build fences for their protection. Smith v. Johnson, 76 Pa. St. 191. In an action for a breach of a specifie contract the party injured is ����