Page:North Dakota Reports (vol. 2).pdf/478

 affairs. Preventive remedies must therefore always be proportioned to the case in its peculiar circumstances-to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it. And herein is no novel or strange doctrine of the law; it is as old as the moral law itself, and is laid down in the earliest books on jurisprudence." The court exhaustively reviews the authorities, and reaches the conclusion that, notwithstanding the technical trespass, defendant was liable for the injury caused by the negligent management of the train; and that, before the negligence of the plaintiff can preclude his right to recover, it must be a proximate, and not a remote, cause of the injury.

A more recent case is Needham v. Railroad Co., 37 Cal 409. In that case plaintiff's mare had trespassed upon defendant's track. In her efforts to escape a train she jumped into a bridge over a dry run. The train was stopped before reaching the bridge, but the animal was injured in being removed by the trainmen. The court charged the jury: "If the mare of plaintiff was injured by the want of ordinary care on the part of the employes of defendant in removing her from the railroad, or by reason of their negligence in doing so, the fact that she was wrongfully upon the road does not protect the defendant from liability," and refused to charge that defendant would be liable only for gross negligence. The trial court was fully sustained on appeal. This case is particularly valuable upon the question of contributory negligence. The court say, on page 419: "About the general rule upon which it is founded-that a plaintiff cannot recover for the negligence of defendant if his own want of care or negligence has in any degree contributed to the result complained of-there can be no dispute. The reason of the rule is that, both parties being at fault, there can be no apportionment of the damages, and not that the negligence of plaintiff justifies or excuses the negligence of defendant. The law does not justify or excuse the negligence of defendant. It would, notwithstanding the negligence of plaintiff, hold the defendant responsible if it could. It merely allows him to escape judgment because, from the nature of the case, it is unable to ascertain what share of the damages is due to his