beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock (), there might be a claim for damages on account of mental injuries. The difficulty which now often exists, in case of alleged physical injuries, of determining whether they were caused by the negligent act, would be greatly increased, and a wide field opened for imaginary claims. The counsel for the respondent was unable to produce any decision of the English Courts in which, upon such facts as were proved in this case, damages were recovered. The decision of the Supreme Court of New York, which he referred to (s) in support of his contention, was a case of a palpable injury caused by a boy, who was frightened by the defendant's violence, seeking to escape from it, and is like the case of Sneesby v. Lancashire and Yorkshire Rail. Co. (t). It is remarkable that no precedent has been cited of an action similar to the present having been maintained or even instituted, and their lordships decline to establish such a precedent. They are of opinion that the first question, whether the damages are too remote, should have been answered in the affirmative, and on that ground, without saying that 'impact' is necessary, that the judgment should have been for the defendants." This decision, however, was distinguished in the case of Dulieu v. White & Sons (u), in which the Divisional Court held that damages, which result from a nervous shock occasioned by fright, unaccompanied by actual impact, may be recoverable in an action for negligence, if physical injury has been caused to the plaintiff. The decision was also questioned by Wright, J., in another case (x).

At one time, in negligence cases, a rule was laid down by which a person travelling on a vehicle, or vessel, and to whom an injury was caused by the negligence of the person in charge of the vehicle, was deprived of his right of action on the ground that the negligence of the person in charge was the negligence of the person injured; in other words, the person injured was considered to have identified himself with

(r) I.e., "a shock apart from any physical injuries." Where the physical injuries are accompanied by a nervous shock, a jury may take both into their consideration in assessing damages.

4 Denio, Sup. Ct. N. Y. Rep. 464, Vandenburgh v. Truax. (t) 1 Q. B. D. 42.

(u) (1901) 2 K. B. 669; 70 L. J. K. B. 837; 85 L. T. 126. (x) Wilkinson v. Downton, (1897) 2 Q. B. 57.

B.

L

the owner of the vehicle and his servants in such a manner as to be a party himself to the act of negligence (y), the relation between them being deemed, by some extraordinary process of reasoning, to be in a manner that of principal and agent.

The two cases referred to in which this doctrine was laid down have, however, now been overruled by the case of Mills v. Armstrong (The Bernina) (z). In that case the representatives of the deceased brought actions against the owners of The Bernina to recover damages for negligence causing their death from injuries incurred during a collision which occurred, and in which both The Bernina and the other. vessel were in default. The House of Lords, affirming the judgment of the Court of Appeal, overruled both the cases referred to, and finally exploded the doctrine of identification, Lord Herschell declaring such a doctrine to be unreasonable. Lord Esher, M. R, at the commencement of his exhaustive judgment in the Court of Appeal (a), which is expressly approved of by the House of Lords, lays down a number of instances or illustrations of cases in which the person injured has his remedy at law; these are as follows:

(1) If no fault can be attributed to the plaintiff, and there is negligence by the defendant, and also by another independent person, both negligences partly directly causing the accident, the plaintiff can maintain an action for all the damages occasioned to him. against either the defendant or the other wrongdoer.

(2) If in the same case the negligence is partly that of the defendant personally and partly that of his servants, the plaintiff can maintain an action either against the defendant or his servants.

(3) If in the same case the negligence is that of the defendant's servants, though there be no personal negligence by the defendant, the plaintiff can maintain an action either against the defendant or his servants.

(4) If in the same case the negligence, though not that of the defendant personally or of a servant of the defendant, consists in an act or omission by

(y) Thorogood v. Bryan, 8 C. B. 115; 18 L. J. C. P. 336; Armstrong v. Lancashire and Yorkshire Rail. Co., 44 L. J. Exch. 89; L. R. 10 Exch. 47. (2) 12 P. D. 58; 13 App. Cas. 1, action under Lord Campbell's Act, 9 & 10 Vict. c. 93. Also reported 56 L. J. P. 38; 57 L. J. P. 65.

(a) 12 P. D. at p. 61.

another, done or omitted to be done in the way in
which it is done or omitted to be done by the order
or direction or authority of the defendant, the
plaintiff can maintain an action either against
the defendant or the person personally guilty of
the negligence.

(5) If, although the plaintiff has himself or by his
servants been guilty of negligence, such negligence
did not directly partly cause the accident, as if, for
example, the plaintiff or his servants having been
negligent, the alleged wrongdoers might by reason-
able care have avoided the accident, the plaintiff
can maintain an action against the defendant.
(6) If the plaintiff has been personally guilty of neg-
ligence which has partly directly caused the acci-
dent, he cannot maintain an action against anyone.
(7) If, although the plaintiff has not been personally
guilty of negligence, his servants have been guilty
of negligence which has partly directly caused the
accident, the plaintiff cannot maintain an action
against anyone.

(8) If, although the defendant or his servants has or
have been guilty of negligence, the plaintiff or his
servants could by reasonable care have avoided the
accident, the plaintiff cannot maintain an action
against anyone.

In all the propositions thus laid down, the persons named were confined to the plaintiff, the defendant, and their servants, and in one case (4) an agent. The Master of the Rolls proceeds to cite and approve other cases (b) in which it was laid down that a defendant is liable only for the negligence of those who have the relation of servants to him as master, upon the principle " qui facit per alium facit per se." He then proceeds again (c), "It may be well to observe that in cases of injury by negligence the first point usually dealt with is whether there has been, in fact, any negligence by the defendant personally; secondly, or by his servants; thirdly, whether that negligence, if any, has been either wholly or partly directly a cause of the accident; fourthly, has the plaintiff personally or by his servants been guilty in

(b) Quarman v. Burnett, 6 M. & W. 499; Reedie v. L. & N. W. Railway, L. R. 4 Exch. 244.

(c) 12 P. D. p. 63.

fact of any negligence; fifthly, has such negligence, if any, either wholly or partly directly been a cause of the accident."

This last case, and more especially the last four of the eight illustrations given by the Master of the Rolls, brings up the subject, to which allusion has been already frequently made in setting out the cases upon negligence, of contributory negligence. The cases upon both are to a very large extent mixed up together, and the reader is referred to the cases already cited (d). If the original negligence of the defendant be remote, and the proximate cause is the plaintiff's own negligence, then in law the plaintiff is said to be guilty of contributory negligence, and not entitled to recover damages.

In practice it will be found that, as a rule, juries make up their minds to find a verdict directly for the plaintiff or defendant respectively; but, if and when possible, it is wise for the defendant's adviser to ask for separate questions to be addressed to the jury, and upon the findings he can then, possibly, argue that the plaintiff is disentitled by reason of his contributory negligence.

In addition to the cases already cited in this chapter, the following may with advantage be referred to. In the wellknown "donkey case (e), it was held to be a proper direction to the jury to say that whatever might be the conduct of the plaintiff in turning the donkey loose on the highway with hobbles on, yet he was entitled to his remedy if the accident might have been avoided by the exercise of ordinary care on the part of the driver of the cart which ran over the donkey.

In the case of Tuff v. Warman (f), the Court of Exchequer Chamber stated that the proper question to be left to the jury was, "whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence, or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case the plaintiff would be entitled to recover; in the latter not, as, but for his own misconduct, the misfortune would not have happened."

(d) Wakelin v. L. & S. W. Railway; Dublin, &c. Railway v. Slattery; and other similar cases.

(e) Davies v. Mann, 10 M. & W. 546; 12 L. J. Exch. 10.

(ƒ) 2 C. B. (N. S.) 740; 5 C. B. (N. S.) 573; 27 L. J. C. P. 322.

It has been held to be a misdirection to tell a jury that the plaintiffs must satisfy them that the accident complained of happened "by the negligence of the defendant's servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendant's servants" (g).

When this direction to the jury was discussed (a new trial being granted) in the House of Lords, Lord Penzance referred to two propositions as being well-established law (h). "The first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he himself has been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him.”

These propositions point to the argument previously suggested that the real test, in cases of contributory negligence, is, whether the negligence of the plaintiff is the proximate cause of the injury (i).

A question has before now arisen in actions by passengers against railway companies, alleging negligence, as to whether the action should be framed in contract or in tort (k). There is a debateable ground between contracts and torts, and in some cases a cause of action might be treated as either a breach of contract or as a tort. However, the law upon this point appears to have been settled now by two decisions in the Court of Appeal; and it is now laid down that where a passenger takes a ticket, thereby creating a contract with a railway company, or other person, who agrees to carry him, such company or person is liable in tort for personal injuries caused by negligence, whether that negligence be

(g) Radley v. L. & N. W. Rail. Co., L. R. 9 Exch. 71; 10 Exch. 100; 1 App. Ca. 754; 46 L. J. Exch. 573.

(h) 1 App. Cas. at p. 759.

(i) See ante, p. 148.

() More especially in connection with sect. 116 of the County Courts Act, 1888; this section deals with the question of costs where the action, being brought in the High Court, might have been brought in the County Court, the amount recovered in contract being under 507., and in tort under 201. respectively.