Opinion. other hand, if, under the said rules of law, the plaintiff was entitled to some recovery, the demurrer should have been overruled and the case submitted to the jury upon the facts, with proper instructions from the court upon the law of the case. The sole question for this court to decide in this case is, whether a person who is injured by the negligence of another, not wilful or intentional, can recover in an action therefor when he by his own negligence proximately contributed to the injury, so that but for his co-operating fault, the injury would not have happened, except when the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence. In this case it is distinctly admitted in the declaration, that the proximate cause of the injury was the negligent act of the plaintiff while riding in the defendant's railway carriage, in putting his arm outside the window of the same while the train was moving at a great rate of speed; and it is also admitted by implication equally plain that if the plaintiff's arm had not been outside the said carriage, the injury would not have happened. If the injury which the plaintiff sustained was occasioned by the negligence of the defendant, and solely by such negligence, there can be no doubt of the plaintiff's right to recover damages for the injury. But if there was negligence on the part of the defendant, and also on the part of the plaintiff, and the negligence of the latter contributed to the injury, the right of recovery depends upon the circumstances. Richmond and Danville Railroad Co. v. Anderson, 31 Gratt. 813. "It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual fault Opinion. of both parties. Where it can be shown that it would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained." Railroad Co. v. Jones, 95 U. S. R. 439, opinion of Justice Swayne. While the foregoing is admitted and approved by this court in the case of the Richmond and Danvelle Railroad Co. v. Anderson, supra, it is there so held, subject to the qualification that a plaintiff may, under certain circumstances, be entitled to recover damages for an injury, although he may, by his own negligence, have contributed to produce it-and this upon the authority of the case of Tuff v. Warman, 5 Q. B. N. S. (94 E. C. L. R.), 573. In that case the court said: "It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is 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 care and caution, that but for such negligence or want of ordinary and common 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 fault, the misfortune would not have happened. Mere negligence, however, on the part of the plaintiff, could not disentitle him to recover, unless it were such that but for that negligence that misfortune would not have happened; nor if the defendant might, by exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff." See Butterfield v. Forrester, 11 East.. 60; Bridge v. The Grand Junction Railway Co., 3 M. & W. 244; Davies v. Mann, 10 M. & W. 545; Dowell v. The General Steam Navigation Co., 5 E. & B. 194; E. C. L. R., vol. 85; Cooley on Torts, 675, and the case of Radley v. London and Northwestern Railway Co., 1 Appeal Cases (Law Reports, 1875–6), 754, 759. Opinion. The foregoing English rule has been followed in this country, and adopted certainly in this State in the recent decisions of this court on this subject-Richmond and Danville R. R. v. Anderson, supra-and in many other States of the Union. Kerwhahee v. The Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio St. R. 172; Northern Central Railway Co. v. The State, use of Price and others, 17 Md. R. 8; Baltimore and Ohio R. R. Co. v. State, use of Trainer and others, 33 Md. R. 542; Brown v. The Hannibal and St. Joseph R. R., 50 Mo. R. 461, decided in 1872; Central R. R. and Banking Co. v. Davis, 19 Ga. 437; Isbell v. New York and New Haven R. R. Co., 25 Conn. 556; Macon and W. R. R. Co. v. Davis' Adm'r, 18 Ga. 679; Herring v. Wil. and Raleigh R. R. Co. 10 Iredell (Law), 402; Baltimore and Ohio R. R. Co., v. Sherman's Adm'r, 30 Gratt., and the Same v. Whittington's Adm'r, 30 Gratt. 805; Sherman and Redfield on Negligence, §§ 25, 494 (3d ed.); Wharton on Negligence, § 388; Hutchinson on Carriers, § 635; Brighthope Railway Co. v. Rogers, 76 Va. 443; O. A. and M. R. R. Co. v. Mills, 76 Va. 773; Richmond and Dan. R. R. Co. v. Moore's Adm'r, ante, p. 93. In the case of the Northern Central Railroad Company v. State, 31 Md. 357, it is held that where from the proof of the nature of the accident, it appears that the negligence of the parties was concurrent and co-operated to produce the injury, no action will lie, the law refusing to apportion the fault, and regarding the negligence of either party as equally proximate. Louisville and Nashville R. R. Co. v. Burke, 6 Caldwell 45; Owens v. Hudson River R. R. Co., 35 N. Y. 576; Owens v. Hudson River R. R. Co., 2 Bosworth N. Y. 374; Same v. Same, 7 Bosworth (1860); McKeon v. Citizens R. R. Co., 43 Mo. 405; Toledo and Wabash R. R. Co. v. Goddard, 25 Md. 185; Cattawassa Railroad Co. v. Armstrong, 49 Penn. St. 186; Potter v. Chicago and Northwestern R. R. Co., 21 Wis. 372; Williams v. Michigan Central VOL. LXXVIII-83 Opinion. R. R. Co., 2 Mich. 259; Memphis and Charleston R. R. Co. v. Whitfield, 44 Miss. 466. That a person who, by his own default has brought upon himself a loss or an injury, can claim no loss or compensation for it from another, is a principle of universal application; and it is equally true, that if his imprudence or negligence has so materially contributed to the loss or the injury that but for such imprudence or negligence it would not have occurred, he can claim no recompense from another who has been instrumental in causing it, unless the latter, upon the discovery of the danger into which the party had brought himself by his own fault, could, by the use of such diligence as the extent of the danger and the nature of the threatened injury required, have avoided the occurrence. If, in other words, the injury, though inflicted by another, was unavoidable by the exercise of proper diligence, by reason of the situation of peril into which the party, by his own neglect, had placed himself, he must be considered as the party solely in fault and as the author of his own misfortune. The carrier owes to the passenger not only the duty of transportation, but the duty of exercising, for his safety, the utmost care and diligence compatible with the nature of the carriage. It owes to him the still further duty of warning him against danger, when it is at hand, and of cautioning him against acts of imprudence which may endanger his person, whenever the circumstances are such that the safety of the passenger would seem to require it. Hutchinson on Carriers, pp. 502, 505. The question whether a party has been negligent in a particular case, is one of mingled law and fact. It includes two questions, Whether a particular act has been performed or omitted; this is a pure question of fact. Whether the performance or omission of this act was a legal duty; this is a pure question of law. The extent of a person's duties is to be determined by a consideration of the circumstances Opinion. in which he is placed. The law imposes duties upon men according to the circumstances in which they are called to act. When the facts are disputed, the question of negligence is a mixed question of law and fact. The jury must ascertain the facts, and the judge must instruct them as to the rule of law which they are to apply to the facts as they may find them. Purvis v. Coleman, 1 Bosw. 321. When, however, the direct fact in issue is ascertained by undisputed evidence, and such fact is decisive of the case, a question of law is raised, and the court should decide it. The jury has no duty to perform. The issue of negligence comes within this rule. Dascomb v. Buffalo and State Line R. R. Co., 27 Barb. 221. Questions of care and negligence after the facts are proved must be decided by the court. Biles v. Holmes, 11 Ired. (N. C.) Law R. 16; Avera v. Sexton, 11 Ired. 247; Heathcock v. Pennington, 11 Ired. 640; Herring v. Wilmington, &c., R. R. Co., Ired. Law R. 402. A judge is not bound to submit to the jury the question of negligence, although there may be a conflict of evidence in relation to some of the facts relied on as proving it, if rejecting the conflicting evidence, the negligence charged is conclusively proved by the defendant's own witnesses. Moore v. Westevelt, 1 Bosw. 357. In the case we are considering, the facts are stated by the plaintiff in his declaration upon which he claims a recovery. These facts, on the other hand, are admitted by the defendant; and the question is submitted to the judge of the court below, as a question of law, whether, upon the facts there stated, which are all agreed, and none of which were controverted, the plaintiff is entitled to any recovery? It is no where alleged in the declaration that the contributory negligence of the plaintiff was known to the defendant, and that the defendant, seeing the danger into which he had placed himself, did not exercise the required dili |