Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/377

 PART IV.] LIABILITY FOR TOUTS OF AGEXTS. [§ 374. free from fault, still, if it is walking on a railroad track, away from the public crossing, an engineer running over it might be entirely free from negligence under circumstances that would have rendered the conduct of the engineer negligent indeed, had the accident occurred in a place where he was bound to keep a special lookout for travellers. 1 § 373. The responsibility of corporations for injuries done by their employes, as disminished by the fact that the „ r J. J Contribu- injured person was a trespasser, is closely connected torynegii- with their liability as released by the contributory * negligence of the injured person. The principle is, he whose own negligence occasions his injury cannot recover damages therefor. 2 This rule implies a statement often made as a qualification to it. Between the negligence of the plaintiff and his injury there must be the relation of ordinary and immediate antece- dent and consequent, or what is usually called a causal relation. This qualification is also connoted by the term contributory. The plaintiff's negligence must have been the proximate not the remote cause or occasion of his injury. 3 § 374. The question of the negligence of the defendant, and the contributory negligence of the plaintiff, is ordinarily for the jury, under the direction of the court, to determine from the 1 Philadelphia and Reading R. R. Co. v. Spearen, 47 Pa. St. 300, 303; Prendergast v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 652; Alabama Gt. So. R. Co. v. Moorer, 116 Ala. 642. 2 " Quod quis ex culpa sua damnum sentit, non intelligitur damnum sen- tire," Dig. lib. 50, tit. 17, § 203; see Wharton on Negligence, 2d ed. §§ 300 et seq., where the subject of contrib- utory negligence is fully and satis- factorily treated. Where a telegraph company incor- rectly transmitted a message so that as transmitted it was unintelligible jargon, yet the receiver (the sender's agent) acted on it, the sender cannot hold the company for the loss, which was due to the negligent act of his own agent in acting on the message. Hart v. Direct U. S. Cable Co., 86 N. Y. 633. Not every degree of negligence, however slight, will bar a recovery; the negligence of the plaintiff to have this effect must amount to an absence of ordinary care. Strong v. Sacra- mento, etc., R. R. Co., (51 Cal. 326. Compare Kansas Pac. R'y Co. v. Pea- vey, 29 Kans. 169. s Kline v. Central Pac. R. R. Co., 37 Cal. 400; Flynn v. San Francisco, etc., R. R. Co., 40 Cal. 14; Murphy v. Deane, 101 Mass. 455; Trow v. Vermont Cent. R. R. Co., 24 Vt. 487; Pennsylvania R. R. Co. v. Richter, 42 N. J. L. 180. See Indianapolis and St. L. R. R. Co. v. Stout, 53 Ind. 143; Houston and T. C. Ry. Co. v. Smith, 52 Tex. 178. 357