standing which, the question of negligence is open to inquiry. Mangam v. Brooklyn R. R. Co., 38 N. Y. (11 Tiff.) 455; affirming S. C., 36 Barb. 230. And see Fallon v. Central Park, etc., R. R. Co., 64 N. Y. (19 Sick.) 13; St. Paul v. Kuby, 8 Minn. 154; Boland v. Missouri R. R. Co., 36 Mo. 484; Barksdull v. New Orleans, etc., R. R. Co., 23 La. Ann. 180.

The doctrine of imputing to an infant the negligence of his adult custodian, for the purpose of defeating an action on behalf of the infant, for injuries caused by the defendant's negligence, is distinctly repudiated by the courts in some of the States, and it is held that such negligence is not to be considered in such an action. See Daley v. Worcester, etc., R. R. Co., 26 Conn. 591; Bellefontaine, etc., R. R. Co. v. Snyder, 18 Ohio St. 399; North Penn. R. R. Co. v. Mahoney, 57 Penn. St. 187; Whirley v. Whittemore, 1 Head (Tenn.), 620; Government Street R. R. Co. v. Hanlon, 53 Ala. 70; Norfork, etc., R. R. Co. v. Ormsby, 27 Gratt. (Va.) 455. See Philadelphia, etc.,

R. R. Co. v. Long, 75 Penn. St. 257. But when the parent sues for the loss of services sustained by an injury to the child, then the contributory negligence of the actual plaintiff may be a bar. Glassey v. Hestonville, etc., R. R. Co., 57 id. 172. See, also, Louisville, etc., Canal Co. v. Murphy, 9 Bush (Ky.), 522.

It has been held, in an action by the husband and wife for an injury to the wife on the highway while riding with the husband, that any want of ordinary care on the part of the husband was attributable to the wife in the same degree as if she were acting wholly for herself, and would be a bar to a recovery. Carlisle v. Sheldon, 38 Vt. 440. But as a general rule, a person who is injured by the negligence of another is not responsible for any contributory negligence of a third person, with whom he happens to be riding, at the time, over whom, or whose conduct, he has no control. Thus, one who has accepted an invitation to take a ride with a person in every way competent and fit to manage a horse, is not chargeable with his negligence, and contributory negligence upon his part is no defense to an action against a railroad company for injuries resulting from a collision. Robinson v. New York, etc., R. R. Co., 66 N. Y. (21 Sick.) 11; 23 Am. Rep. 1. See, also, Griggs v. Fleckenstein, 14 Minn. 81.

Some recent decisions in illustration of the rules as to contributory negligence will be given in this connection, reserving a full discussion of the subject for a more appropriate place under the general head of defenses.

The fact that a party, while suffering an injury to his person or property from the negligence of another, was doing an unlawful act,

as for instance, driving cattle to market on Sunday, will not prevent his recovering therefor, unless the act would naturally tend to produce the injury. Sutton v. Wauwatosa, 29 Wis. 21; S. C., 9 Am. Rep. 534. But see contra, Jones v. Andover, 10 Allen, 18; Smith v. Boston, etc., R. R., 120 Mass. 490; S. C., 21 Am. Rep. 538; Cratty v. City of Bangor, 57 Me. 423; S. C., 2 Am. Rep. 56; Johnson v. Irasburgh, 47 Vt. 28; S. C., 19 Am. Rep. 111. So, where the plaintiff's team, while standing in a public street, in a manner prohibited by a city ordinance, was negligently driven against and injured by the defendant, it was held that the fact the plaintiff was, at the time, violating the law did not constitute contributory negligence. Steele v. Burkhardt, 104 Mass. 59; S. C., 6 Am. Rep. 191. And see Damon v. Inhabitants of Scituate, 119 Mass. 66; S. C., 20 Am. Rep. 315; McClary v. Lowell, 44 Vt. 116; S. C., 8 Am. Rep. 366; O'Connell v. City of Lewiston, 65 Me. 34; S. C., 20 Am. Rep. 673.

At common law, the fact that a street railway passenger voluntarily puts himself on the front platform of the car, when there is room inside, will not absolve the railway company from liability for injuries there received by him. Burns v. Bellefontaine R. R. Co., 50 Mo. 139. And see Clark v. Eighth Avenue R. R. Co., 32 Barb. 657; S. C. affirmed, 36 N. Y. (9 Tiff.) 135; Ginna v. Second Avenue R. R. Co., 67 N. Y. (22 Sick.) 596. Nor is it negligence per se for one riding upon the platform of the car to omit to take hold of the iron bar or rail to avoid being thrown from the platform. Id. But when an employee leaves his post of duty and goes to a place of danger, knowing it to be such, and there receives an injury, he is guilty of contributory negligence. Sammon v. New York, etc., R. R. Co., 6 Jones & Sp. (N. Y.) 414; S. C. affirmed, 62 N. Y. (17 Sick.) 251. So, one who attempts to cross a swollen stream, the bridge over it being out of repair, when it is apparent that the stream is swollen and dangerous to cross, is guilty of contributory negligence, and in case of injury he cannot recover damages for failure to repair the bridge. Jackson v. Commissioners, etc., 76 N. C. 282. See, also, Folsom v. Underhill, 36 Vt. 580. So, if the driver of a horse and vehicle approaching a defect in a highway loses control over the horse, by reason of the latter throwing his tail over the rein, and this fact contributes to an accident when the defective spot is reached, the town is not liable for the injury. Fogg v. Nahant, 106 Mass. 278. And see Winship v. Enfield, 42 N. H.

197.

Where a person returns to the owner a gun which he has heavily loaded for the purpose of having the latter kicked by its discharge, and such owner finds out its condition, but nevertheless discharges it,

the act of the borrower is not the proximate cause of the injury resulting to the owner from such discharge. Smith v. Thomas, 23 Ind. 69.

It is held in Oregon that some negligence on the part of one in fastening his boats in an exposed position does not excuse gross negligence in another in running into and destroying them. Bequette v. Peoples' Transp. Co., 2 Oreg. 200.

In an action to recover damages for personal injuries caused by the negligence of the defendant, the mere fact of intoxication will not establish want of ordinary care. The jury must determine whether the intoxication contributed to the injury; if it did not, it is of no importance. Healy v. Mayor, 3 Hun (N. Y.), 708; S. C., 6 Sup. Ct. (T. & C.) 92; Robinson v. Pioche, 5 Cal. 460; Stuart v. Machias Port, 48 Me. 477; Ditchett v. Spuyten Duyvil, etc., R. R. Co., 5 Hun (N. Y.),

165.

Where a wife knows the fact that her husband has purchased a jug of whisky, and is drinking immoderately, and has it in her power to prevent him from drinking in such quantity as to injure him, by breaking the jug, or pouring out its contents, and is not prevented from doing so through fear, but permits him to use it in great excess, from which death ensues, she must be considered as a willing party to his conduct, and instrumental in bringing the loss upon herself. She cannot, therefore, recover damages in an action under the statute, for causing the death of her husband by selling him intoxicating liquor. Reget v. Bell, 77 Ill. 593.

One who had supervised the placing of a telegraph pole four or five feet into the earth and knew of a subsequent grading down, leaving it only a foot therein, was held to be guilty of such contributory negligence in climbing it with spikes to detach the wires, that his widow could not recover for his being killed by its fall. Matthews v. St. Louis Grain Elevator Co., 59 Mo. 474.

A passenger who is lawfully upon a railroad train and has paid his fare has the right to offer such resistance to any attempt on the part of the conductor to remove him therefrom as may be necessary to prevent his being ejected. And if, in consequence of his resistance, extraordinary force becomes necessary and is used to remove him, and he is injured thereby, he can recover of the company for such injury. English v. Delaware and Hudson Canal Co., 66 N. Y. (21 Sick.) 454; 23 Am. Rep. 69. The principle of the plaintiff's own negligence depriving him of his right of action does not apply to such a case. Id.; Sanford v. Eighth Avenue R. R. Co., 23 N. Y. (9 Smith) 343.

So, a defendant, by whose negligence the property of another has been injured, cannot excuse his negligence by showing that the plain

tiff's property was placed where it received the injury by an act of trespass on the part of the plaintiff. Brown v. Lynn, 31 Penn. St. 510. And mere want of reasonable care in placing or securing his property on the part of the plaintiff is no defense to an action for injuries caused by the breaking away of the defendant's dam. Fraler V. Sears, etc., Co., 12 Cal. 555.

If a person places cord-wood upon the right of way and near the track of a railroad, under an agreement, express or implied, with the company so to do, he does not thereby contribute to an injury caused by the destruction of the wood by fire communicated from a passing locomotive. Pittsburg, etc., R. R. Co. v. Nelson, 51 Ind. 150.

A person employed to work with or around dangerous machinery is bound to exercise his thinking faculties and to give careful attention as to how he passes around it; and if he fails to do so, and is injured in consequence, he is guilty of contributory negligence, which will prevent his recovery for such injury. Stone v. Oregon City Manuf. Co., 4 Oreg. 52. And see tit. Master and Servant.

CHAPTER CII.

NUISANCES.

ARTICLE I.

OF NUISANCES IN GENERAL.

Section 1. Nature and definition. It is said to be impracticable to give a precise, technical definition of what constitutes a nuisance at common law, and that the only accurate method of ascertaining the legal meaning of the term is, to examine decided cases adjudged to be, or not to be, nuisances. Norcross v. Thoms, 51 Me. 503. A nuisance is, however, generally defined to signify any thing that unlawfully worketh hurt, inconvenience, or damage to another. See 2 Broom. & Had. Com. (Wait's Ed.) 219; 2 Bouv. Dict. 245; Commonwealth v. Old Colony, etc., R. R. Co., 14 Gray, 93; Coker v. Birge, 9 Ga. 425. The statute of Indiana declares to be a nuisance, "whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property," and this, perhaps, is as accurate a definition of the term "nuisance," as understood at common law, as can be found elsewhere. State v. Taylor, 29 Ind. 517; Hackney v. State, 8 id. 494. And see Regina v. Gray, 4 Fost. & Fin. 73; State v. Purse, 4 McCord (S. C.), 472; Nolan v. Mayor, etc., 4 Yerg. (Tenn.) 163; Pickard v. Collins, 23 Barb. 444, 453.

It is a general doctrine that every man has the right to regulate, improve and control his own property, to make such erections as his own judgment, taste or interest may suggest, and to be master of his own without dictation or interference by his neighbors. Barnes v. Hathorn, 54 Me. 124. On the other hand, if he make an unreasonable, unwarrantable or unlawful use of his own property, so as to produce material annoyance, inconvenience, discomfort or hurt to his neighbor, he will be guilty of a nuisance to his neighbor and the law will hold him responsible for the consequent damage. Id.; Butterfield v. Klaber, 52 How. (N. Y.) 255. The great difficulty lies in drawing the line in particular cases so as to recognize and enforce both of these rules within reasonable limitations; since it is well settled that