Page:North Dakota Reports (vol. 2).pdf/479

 negligence. He is both legally and morally to blame, but there is no standard by which the law can measure the consequences of his fault, and therefore, and therefore only, he is allowed to go free of judgment. The impossibility of ascertaining in what degree his negligence contributed to the injury being then the sole ground of his exemption from liability, it follows that such exemption cannot be allowed when such impossibility does not exist; or, in other words, the general rule that a plaintiff who is himself at fault cannot recover is limited by the reason upon which it is founded.” Upon the main question, the principle decided is thus announced in the syllabus: “If the plaintiff is guilty of negligence, or even of possible wrong, in placing his animals on a railroad track, yet the railroad company are bound to exercisa reasonable care and diligence in the use of their road, and, if for want of that care the animals are injured, the company is liable.” The law upon this point in this country is largely based upon the case of Davis v. Mann, 10 Mees. & W. 549. In that case an ass was turned into the highway shackled, and was run over and killed. A recovery was allowed, and Lord ABINGER, in reviewing the case, said: “Even if this ass was a trespasser, and the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” The principle of that case has been well stated, as follows: “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is clearly responsible for it.” Shear. & R. Neg. § 99. “The mere fact that the plaintiff, when he suffered the injury, was technically trespassing upon 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.” Shear. & R. Neg. § 97. Again: “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding plaintiff's own negligence exposing him to the risk of injury, if such injury was proximately caused by defendant’s omission, after becoming aware of plaintiff's danger, to use ordinary care for the purpose of avoiding injury tohim. We know of no court of last