290 



NEGLIGENCE IN THE USE OF HOUSES, ETC. 



'W^liere negli- 

 gence of the 

 injured party 

 did not con- 

 tribute to the 

 accident. 



Where such 

 negligence 

 occasioned 

 part of the 

 mischief. 



Contributory 

 negligence of 

 children. 



latter not, as but for his own misconduct the mi fortune 

 would not have happened. Mere negligence or want of 

 ordinary and common care and caution would not however 

 have disentitled him to recover, unless it was such that but 

 for the negligence and want of ordinary care and caution 

 the misfortune would not have happened ; or if the defen- 

 dant might, by the exercise of caution on his part, have 

 avoided the consequences of the neglect or carelessness of 

 the plaintiff." 



Where the negligence of the party injured did not in 

 any degree contribute to the immediate cause of the acci- 

 dent, such negligence ought not to be set up as an answer to 

 an action brought against the person who committed an 

 injury (e). 



A person who is guilty of negligence, and thereby pro- 

 duces injury to another, cannot set up as a defence that 

 part of the mischief would not have arisen if the person 

 had not himself been guilty of some negligence (/). 



The extent to which the rule relating to contributory 

 negligence applies to the case of a child who is so young as 

 to be incapable of exercising ordinary care and caution is 

 somewhat doubtful. In Lynch v. Nurdin (g), the Court of 

 Queen's Bench, after taking time to consider their judg- 

 ment, held that the rule in question had no application in 

 such cases. There, the defendant's servant had negligently 

 left a horse and cart unattended in a pubHc street, and the 

 plaintiff, a child under seven years of age, during his 

 absence, had climbed on the wheel, whereupon another 

 child incautiously led the horse on, with the result that the 

 plaintiff was thrown down and hurt ; and it was held that 

 the defendant was liable in an action for negligence, 

 although the plaintiff was a trespasser and contributed to 

 the mischief by his act ; and that it was properly left to 

 the jury to say whether the conduct of the defendant's 

 servant was negligent, and, if so, whether his negligence 

 caused the injury. But the authority of this case has been 

 doubted (A), and a distinction has been drawn between cases 

 in which the conduct of ttic child amounts to what in an 

 adult would be mere negligence, and those in which it 



(e) See Greenland v. Chaplin, 6 

 Ex. 248. See also Mromilow y. 

 Metropolitan Board of Works, 2 F. 

 & P. 604. 



(/) Greenland T. Chaplin, 5 Ex. 

 24a. 



(g) 4P. &D. 672; 1 U- B. 29. 



[h] Lygo v. Neu-hold, 9 Exch., at 

 p. 305 — per Alderson, B. ; Mann v. 

 Ward, 8 Times L. R. 699— per Lord 

 Esher, M.Il. But see the observa- 

 tions of Cockburn, C.J., in Clarke. 

 Chambers, 3 Q. B. D. 338, 339. 



