the want of care and prudence on his part. As the case, however, resulted in the affirmance of a judgment for plaintiff, it is apparent that the proposition with respect to the effect of his contributory negligence was obiter.

In Baltimore v. Marriott (1856) 9 Md. 160, 66 Am. Dec. 326, an action against a municipality for injury to plaintiff, who fell on ice which had accumulated on the sidewalk, although the statement of facts preceding the opinion refers to the action as one to recover damages for injuries sustained in consequence of the negligence of the defendant in not preventing or removing the accumulation of ice, the opinion treats the condition as constituting a nuisance, but said that it was necessary that the plaintiff, on his part, show "reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him." In this case, however, the court affirmed a judgment for plaintiff, stating that the defendant had had the full benefit of the legal principle stated.

The language of the opinion in Congreve v. Smith (1858) 18 N. Y. 79, apparently implies that contributory negligence is a defense to an action for damages arising from a nuisance, even though the nuisance does not originate in negligence. The court there said that whoever, without special authority, materially obstructs a street, or renders its use hazardous, by doing anything upon, above, or below the surface, is guilty of a nusance, and that no question of negligence can arise, the act being wrongful, and that in all other cases of a public nuisance, individuals sustaining special damage from it, "without any want of due care to avoid injury," have a remedy by action against the person responsible for the nuisance. In this case, also, the court affirmed a judgment for plaintiff.

In Ferguson v. Firmenich Mfg. Co. (1889) 77 Iowa, 576, 14 Am. St. Rep. 319, 42 N. W. 448, an action by a lower owner on a stream against an upper owner for damages from pollution, the court declared that the contention by the lower owner that he was entitled

to recover if a wrong had been proven, notwithstanding the fact that he might have contributed to it by the pollution of the stream, was not well taken, and, if the plaintiff contributed to the wrong, he and the defendant were joint wrongdoers. This case, however, was expressly overruled in Bowman v. Humphrey (Iowa) supra, as applied to a case where the plaintiff and defendant did not act jointly or in concert, but the act of each was separate and independent of that of the other.

The distinction which the court in the reported case (MCFARLANE V. NIAGARA FALLS, ante, 1) tentatively makes between ordinary negligence and misconduct transcending the mere lack of ordinary care is also reflected more or less clearly in some other cases. Butterfield v. Forrester (Eng.) supra, has already been referred to in this connection.

In Thompson v. Petrozzello (1927) - N. J. L. —, 137 Atl. 835, affirming a judgment for plaintiff, who was injured by driving into an excavation or depression made by the defendants, the court said that the condition in the highway constituted a public nuisance, but that it went without saying that, if the plaintiff saw a barrier and red light displayed, and deliberately disregarded the warning, and thereby was injured, he would be debarred of a recovery, but that the burden of establishing such a defense was on the defendants. The court further said: "We are not to be understood as intimating that contributory negligence can be successfully set up as a defense. where the tort consists of a public nuisance. In such a case, as that of a nuisance, where a person knows of the danger and voluntarily assumes the risk thereof, and sustains an injury, it is well settled by the cases under the doctrine of assumption of risk, he is debarred of a recovery." The defendants in this case were contractors who were laying a pavement under a contract with the municipality; and it is not entirely clear whether the nuisance would, under the classification in the MCFARLANE CASE, be regarded as an absolute nuisance, or as a nui

sance having its origin in negligence. It will be observed that the language of the court apparently negatives the application of the rule of contributory negligence in such a case, though admitting that the plaintiff might be debarred from recovery on the theory of assumption of risk, if he knew of the danger and voluntarily incurred the risk therefrom.

In some cases that might at first seem to give some color to the view that contributory negligence is a defense, the result seems to have been attributable to the view that the plaintiff's conduct was the sole proximate cause of the damage or injury, or, at least, of that part of it for which he was denied a recovery.

Although the action in Gould v. McKenna (1878) 86 Pa. 297, 27 Am. Rep. 705, was brought on the case for negligence, and not for a nuisance, the court drew a distinction which is pertinent to the present subject. In this connection the court said: "The contributory negligence which prevents recovery for an injury is that which co-operates in causing the injurysome act or omission concurring with the act or omission of the other party to produce the injury (not the loss. merely), and without which the injury would not have happened. Negligence which has no operation in causing the injury, but which merely adds to the damage resulting, is no bar to the action, though it will detract from the damages as a whole." The action in this case was based on the conduct of the defendant in so constructing his roof that the rain water collecting thereon flowed against the wall of plaintiff's building, penetrating the same and causing damage. In this connection the court said that the building of the roof, and its pitch, were the sole act of the defendant, and caused the injury to the extent of the flow of water from the roof, and that the difficulty of separating the damage resulting from that cause from that which may have been due to plaintiff's independent acts did not deprive plaintiff of the right to recover.

In Parker v. Union Woolen Co. (1875) 42 Conn. 399, apparently upon

the assumption for the purposes of the point at least, that a steam whistle which frightened plaintiff's horse was so used as to become a nuisance, it was said that it was a familiar principle in this class of cases that the plaintiff must show that he exercised ordinary care at the time of the injury, or he cannot recover; in other words, if his own negligence essentially contributed to the injury, it cannot be said in a legal sense that it was caused by the negligence of the defendant. Said the court: "Although this is not a case, strictly speaking, of contributory negligence, yet we think the same principle applies." In concluding the opinion, the court said that it must be conceded that the death of the horse was caused quite as much by his bad habit as by the noise of the whistle, and, this being so, the law would not attribute the injury to the whistle so as to hold the defendant liable.

In Carroll Springs Distilling Co. v. Schnepfe (1909) 111 Md. 420, 74 Atl. 828, an action for damages to property from a nuisance caused by discharge of material from a distillery, the court said: "Assuming that the tort had been committed, the plaintiff was under an obligation to do what he could, by reasonable exertion and expense, to save himself from the consequences of the wrong, and all damages which resulted from a failure to discharge that duty must be borne by him, subject, however, to this limitation-that such damages cannot be used to defeat the right of the plaintiff to maintain his action and recover against the wrongdoer."

In Smith v. Smith (1824) 2 Pick. (Mass.) 621, 13 Am. Dec. 464, an action for an injury done to plaintiff's horse by a woodpile which defendant had placed in the street, Parker, Ch. J., said that it would seem at first that one who does an unlawful act, such as encumbering the highway, should be answerable for any direct damages which happen to anyone who is injured thereby, whether the party suffering was careful or not in his manner of driving. "But on deliberation we have come to the conclusion that

this action cannot be maintained, unless the plaintiff can show that he used ordinary care; for, without that, it is by no means certain that he himself was not the cause of his own injury. The party who obstructs a highway is amenable to the public in indictment, whether any person be injured or not, but not to an individual, unless it be shown that he suffered in his person or property by means of the obstruction; and where he has been careless it cannot be known whether the injury is wholly imputable to the obstruction, or to the negligence of the party complaining. And considering the indulgence shown by the public to the citizens, in many places, to occupy a part of the highway for temporary purposes, leaving ample room for travelers with ordinary care to pass uninjured, the principle which requires that degree of care in order to entitle a party to damages may be deemed salutary and useful. That such is the law we are fully satisfied from an examination of the authorities cited."

In Sherman v. Fall River Iron Works Co. (1861) 2 Allen (Mass.) 524, 79 Am. Dec. 799, an action in tort for damages caused by laying imperfect gas pipes in streets, by reason of which gas escaped and contaminated a well upon premises leased by plaintiff, resulting in injury to his horses, the court, in overruling exceptions to a verdict returned for defendant, said: "If the injury to the plaintiff's horses, and to his business, was occasioned by his own carelessness in allowing the horses to drink the water after he knew that it was corrupted by the gas, the effect would only be to exclude that particular element of damages. He can recover only for the natural and direct consequences of the wrongful act of the defendants, and not for consequential damages which might have been avoided by ordinary care on his own part. But if the loss of the use of the well was in itself an inconvenience, or if he was put to expense in reasonable and proper attempts to exclude the gas from his well, the defendants are not to be protected from responsibility, to the ex

tent which these facts would justify, because the plaintiff has negligently permitted other injurious consequences to follow, for which he can have no remedy."

An instruction which permitted the jury to find for the plaintiff if the stagnant water for which the defendant was responsible was the principal and substantive cause of the injury complained of, even though other causes might have contributed to a lesser extent, was held erroneous in Chesapeake & O. R. Co. v. Whitlow (1905) 104 Va. 90, 51 S. E. 182, upon the ground that to make out his cause of action the plaintiff must show that the company's negligence caused the injury, and he could not recover upon evidence that left it to conjecture or inference whether the malaria from which he suffered arose from the canal or from his own premises. The action in this case seems to have been based on negligence rather than nuisance.

In denying a recovery sought upon the theory that the municipality maintained a nuisance in the street, consisting of a mudhole which resulted from the action of the plaintiff himself in digging a sewer to connect with a city sewer, the court in Richards v. Waupun (1883) 59 Wis. 45, 17 N. W. 975, said that the doctrine of contributory negligence invoked by counsel was hardly applicable, since such. negligence implied a wrongful act or omission of the party sought to be charged, but that the plaintiff was precluded from recovering under the principle that that to which a man consents, or which he causes by his own action, cannot be considered an injury for which he can recover damages. "Volenti non fit injuria."

In Missouri, K. & T. R. Co. v. Burt (1894) Tex. Civ. App. —, 27 S. W. 948, the court, in reply to the objection that plaintiff could have hauled the dead animal constituting the nuisance off of the defendant's right of way, or buried it with slight expense, and that by the failure to do so he was guilty of contributory negligence, said that plaintiff was not bound to remove the dead animal; that to do so he would

have been compelled to make an opening in defendant's fence and enter upon the right of way, or commit a nui

sance.

In Niagara Oil Co. v. Ogle (1912) 177 Ind. 292, 42 L.R.A. (N.S.) 714, 98 N. E. 60, Ann. Cas. 1914D, 67, an action for damages from a nuisance resulting from the pumping of oil and salt water from a well, and permitting it to flow on the plaintiff's property, and to enjoin the maintenance of such nuisance, the court quoted from Wood on Nuisances, 3d ed. § 435, to the effect: "It is the duty of every person or public body to prevent a nuisance, and the fact that the person injured could, but does not, prevent damages to his property therefrom, is no defense either to an action at law or in equity. A party is not bound to expend a dollar, or to do any act, to secure for himself the exercise or enjoyment of a legal right of which he is deprived by reason of the wrongful acts of another."

In Gulf, C. & S. F. R. Co. v. Reed (1893) Tex. Civ. App. —, 22 S. W. 283, it was held that a plaintiff could not be held guilty of contributory negligence in not taking action to hasten the decomposition of the carcasses of dead animals deposited by

the defendant in the vicinity of plaintiff's premises, especially as the evidence tended to show that the plaintiff would have been guilty of trespass in handling the carcasses; the court said that it did not mean to say that he might not have been guilty of contributory negligence in not providing his horses with water, and, if so, he could only recover as damages for injury to his horses, if any, reasonable compensation for his time necessarily occupied in taking them to water.

In Bowman v. Humphrey (1906) 132 Iowa, 234, 6 L.R.A.(N.S.) 1111, 109 N. W. 714, 11 Ann. Cas. 131, supra, the court said that the fact that the doctrine of contributory negligence does not apply where nuisance is charged is illustrated in cases where the complainant has purchased property, or perhaps has established his residence, in the immediate vicinity of an already existing nuisance. That class of cases, however, is not, in general, included, as the subject is not presented from the point of view of contributory negligence, and in many, if not most, of them, the suit was brought to enjoin or abate the nuisance, as the matter related to the question of remedy rather than substantive law.

G. H. P.

Headnotes by RILEY, J.

57 A.L.R.-2.