In this case a customer sued a storekeeper, the declaration alleging failure of the shop owner to provide a safe place for its customers to shop. The alleged negligence complained of consisted of the act of the store owner in so maintaining an unguarded bicycle display rack near the aisle of the store, wherein customers were impliedly invited to walk in and out of the same, that plaintiff, who was burdened with packages representing purchases she had made in the store caught her dress in, and fell upon and against the same, and was injured, while she was departing from the defendant's place of business in the usual and ordinary manner via the aisleway *Page 450 wherein the bicycle rack was negligently allowed to occasion plaintiff's danger and peril as a customer.
The Circuit Judge submitted the cause to the jury for trial on the plea of not guilty, but refused to submit to the jury any issue of contributory negligence based upon the theory of pleas interposed to the effect that the plaintiff knew "or should have known" of the existence of the bicycle rack and its dangerous misplacement, at the time she was injured. Thus the case, as submitted to the jury, was tried on the theory of proximate cause, namely: Was the defendant's misplacement of the bicycle rack in the customer's line of egress from its store the sole proximate cause of the injury sustained, or was the plaintiff's failure to heed and observe the danger as created by the defendant's admittedly wrongful act in creating a dangerous way of egress for plaintiff, the sole proximate cause of the injury? The jury found for the plaintiff, so the question on appeal, is whether or not any issue of contributory negligence was, or could have been under the law, triable by the jury in view of the evidence adduced which was to the effect that the plaintiff, while leaving the defendant's store, without having any proven knowledge of the existence of any danger in defendant's way of egress provided for her exit from defendant's store after loading herself down with bundles to take out to her car, caught her dress on defendant's bicycle rack that should not have been allowed in the condition that it was at the time of the injury.
As I read the record, the issues triable upon the pleadings were properly submitted to the jury, and therefore the judgment ought not to be reversed, but should be affirmed.
Contributory negligence in the law of torts is defined as the plaintiff's share in a united, mutual and contemporaneous act of negligence on the part of both parties to a transaction *Page 451 that has resulted in one single mutually occasioned proximate cause of the damages plaintiff has sustained and for which he sues. The doctrine of contributory negligence as a complete defense originated in the ancient case of Butterfield v. Forrester, 11 East. 60, 19 Eng. Rul Cases 189, and has been considered by courts and law writers as largely a rule of convenience, rather than one promoting the administration of exact justice in all cases.
Under the true doctrine of contributory negligence, unless the ultimate injury sued for was the natural and probable consequence of an act of negligence on the part of the defendant so that only by its united and contemporaneous concurrence with a mutual act of negligence on the part of the plaintiff, of the same kind and quality, was it sufficient to become and be the sole proximate cause of the damage, the defense of contributory negligence cannot arise nor be legally asserted, no matter what may have been the incidental negligence of the plaintiff in the circumstances sued for. This is so, because the distinction between proximate cause and contributory negligence as a defense is a marked one.
The question of liability resolves itself solely into one of proximate cause and not contributory negligence as a defense, where, although both plaintiff and defendant may have been severally negligent at the time of an injury, the negligence of the two actors (plaintiff and defendant) did not unite as oneproximate cause of the happening complained of, and was not mutual nor contemporaneous as the effective agency by which the injury was brought about.
The very name, "contributory" negligence, suggests the theory of the law on this subject. The legal definitive term "contributory" as applied to a plaintiff's negligence should not, in my opinion, be converted by judicial declarations *Page 452 carelessly phrased in general language, into what is nothing more than a novel doctrine of "counter negligence," as a justification for one's own admitted negligence.
The rule of law is well settled in the adjudicated cases and in the text books, that even where it appears that a plaintiff suing for an injury was negligent in a general sense at the time that it was sustained by him, but his own negligence only afforded an opportunity, or was merely attendant upon the occasion of such injury, or was simply a condition that existed at the time plaintiff's injury happened, without being united with defendant's particular negligence sued for, in such way that it can be inferred that plaintiff was not only negligent himself at the time he was injured, but that his negligence at such time united as the mutual, contemporaneous proximate cause of the damages complained of, that then the negligence shown on plaintiff's part cannot be said to be "contributory" negligence of the kind that bars recovery. On the contrary, it is merely an incidental or collateral negligence that, although forming a part of the res gestae, is nevertheless not pleadable nor provable in bar of plaintiff's suit for a wrong done him by defendant's negligence amounting to the sole proximate cause of what happened.
To constitute contributory negligence pleadable as a bar to an action for defendant's negligence, the plaintiff's negligence set up as a defense, must not only be shown to have been present at, or about, the time plaintiff's injury was suffered as the result of defendant's separately considered negligence, but it must be concurrent, as well as contemporaneous, with that of the defendant, and unite with the defendant's negligence in constituting the sole and single indivisible proximate negligence cause of the damage sued for. *Page 453
Furthermore, the alleged contributory negligence must be of the same kind (quality), must be immediate, and grow out of the same transaction, and not be something distinct and independent, or remotely related to the alleged negligent acts of the defendant. The following leading cases in the United States clearly sustain this view as to the correct doctrine, and I have found no decision holding to the contrary, with regard to the definition of "contributory" negligence as contra-distinguished from "counter" negligence set up as the sole proximate cause of a particular injury complained of. See: O'Keefe v. Kansas City Webster Ro. Co.,
Where the negligence of the defendant is the proximate cause of an injury for which suit is brought, and that of the plaintiff only the remote cause, the plaintiff may recover notwithstanding his own negligence, because in such circumstances, the doctrine of the "last clear chance" which is applicable in this State under our decisions, permits the plaintiff to recover even though he may have been guilty of some counter negligence on his part.
The defense the defendant attempted to assert under its plea of contributory negligence filed in this case was not that plaintiff had any part in placing the bicycle rack where *Page 454 it subsequently caused her injury, nor that she had any duty or responsibility in connection with it.
Plaintiff was a customer in defendant's store. She was under no duty to inspect the premises whereon she had been invited to trade, in order to anticipate and avoid peril from dangerous obstacles placed in her path which she had the legal right to assume, without inspection, was free of such dangers as she later encountered in the form of the negligently maintained bicycle rack upon which she fell. See: Southern Express Co. v. Williamson,
The plea of contributory negligence was therefore bad in itself insofar as it undertook to allege as a defense that plaintiff "by the exercise of ordinary and reasonable care for her own safetyshould have known" of the defendant's negligence. The direction of a verdict as against a bad plea of contributory negligence should never be reversed, since a motion for directed verdict tests the pleadings as well as the evidence, and requires the court to give judgment thereon for him who is entitled to have it.
On the other hand, if in fact plaintiff actually personally knew of, or perceived, the danger that was in her path by reason of defendant's negligence, then it was her own sole negligence that was the proximate cause of the injury, and not a mere contributory cause of it. This is so, because one who actually knows of danger occasioned to him by another's negligence, has the "last clear chance" of avoiding it, and when he does not do so, his own negligence in failing to avoid the perils of his adversary, is regarded in law not as "contributory" negligence merely, but as negligence that is the sole proximate cause of his own injury.
Where the only issue made, or that can be made or tried in a litigated case, is whether the defendant's admitted negligence *Page 455 was, or was not, actually so apparent or known to the plaintiff that he should have avoided it, the question to be tried is one solely of proximate cause under the plea of "not guilty" and a trial judge properly directs a jury to disregard as immaterial to the trial, a plea of "contributory" negligence that is designed to cover a situation already fully covered by a plea of not guilty.
Nor is the foregoing distinction one of nomenclature only in a case of this kind. It is fundamental in character. This is so, because whether the issue is contributory negligence, or whether it is one of sole proximate cause, goes to the burden of proof in the case as between the parties. It also goes to the correct appraisement by the jury of the legal duties and defaults in the performance thereof, of each of the litigants.
If this case should be reversed on the ground that plaintiff's rights should be tested on an issue of "contributory" negligence such as is raised by defendant's plea, then we must disregard what this Court has said in the Southern Express Co. v. Williamson case, cited, supra, and hold that the plaintiff was guilty of contributory negligence, notwithstanding defendant's admitted negligence in dangerously misplacing its bicycle rack that caused the injury, merely because she, the plaintiff, assumed that the defendant's store and its aisles provided for her to walk in it were safe, without first inspecting them and thereby looking out for danger from an obstruction in her path when she had no reason to apprehend any such danger, and was under no duty to look out for until some actual notice of its imminence was brought to her knowledge.
The court properly confined the jury's consideration to the plea of not guilty whereon the only fact to be determined was, "did plaintiff actually know of the danger created *Page 456 by defendant's negligent placement of its bicycle rack, thereby making the proximate cause of her injury her own negligent failure to avoid its peril"?
