Trespassers and licensees are in a peculiar position in case they are injured whilst on the property of another. And it is only reasonable, with regard to a trespasser, that he should not be able to claim damages because he has suffered an injury which he would not have suffered had he refrained from the trespass. If for example a tramp wanders without invitation or leave in the grounds of a wayside house, he has only himself to blame if he is injured by stumbling into a well negligently left uncovered by the owner.
But the owner of the premises would be liable to even such a trespasser as a tramp if the injury were caused by some act which is prohibited by statute. Should he leave a quarry unfenced within fifty yards of the highway, and a trespasser fall in and be injured, he will be liable for damages; so also may he if the trespasser is injured by a spring gun, for setting spring guns or man traps is a misdemeanour, unless set for the protection of a house by night. But a licensee, such as a guest, is on a slightly better footing than a tres passer. A tradesman's servant, on the premises of his master's customer by lawful authority, is not a mere licensee of the customer (lialermaitr v. Davies). He stands in the position of one who has a full right to adequate protection from the results of negligence. So, in fact, does any one who is on premises for business purposes by the invitation of the owner (Heaven v. Polder). In Southcote v. Stanley a man was not allowed damages against his friend at whose house he had been injured by a loose pane of glass falling from a door. But probably he would have been successful if the master of the house had known that the pane was loose that his visitor was likely to open the door and cause it to fall out, and timt the visitor did not know of the defect— provided, of course, that the visitor had not been particularly warned. It was suggested in that case by Baron Bramwell that though a licensor might be liable to his licensee for the results of wrongful acts of commission, yet he was not liable for acts of omission. Said his lordship: " If a person asked another to walk in his garden, in which he had placed spring guns or man traps, and the latter, not beim* aware of it, was thereby injured, that would be an act of commission. BA if a person asked a visitor to sleep at his house, and omitted to see that the sheets were properly aired, whereby the visitor caught cold, he could maintain no action, for there was no act of com mission, but simply an act of omission." Contributory negligence.—It frequently happens that a person who suffers an injury through the negligence of another has himself been guilty of a negligence which contributed to the casualty. In such a case the inpred person is said to have been guilty of contributory negligence. If he brings an action against the party who inflicted the injury, the defendant is entitled to plead that contributory negligence as a defence, and it then becomes a ques tion whether, in view of the particular circumstances of the ease, the defence is a valid one. And it will not be a valid defence to the plaintiff's claim if
the defendant could have averted the casualty by exercising ordinary care, notwithstanding the plaintiff had contributed thereto by his own negligence. If for example an ass is wrongfully loose on a highway, and some person should be driving too fast, " or, which is the same thing, at a smartish pace," and consequently injure the ass, that person will be liable therefor to the owner of the animal. "For although the ass may have been wrongfully there," said Baron Parke in Davies v. Mann, " still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might Justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road." The onus of proving affirtnatively that there was contributory negligence on the part of the person injurea, rests in the first instance upon the defendant, so that in the absence of evidence tending to that conclusion the plaintiff' is not bound to prove the negative (Wakelin v. London and South- Western Railway Co.). In the case of The Bernina, Lord-Justice Lindley reduced actions for negligence into three classes. Thus —(1) If A. without fault of his own, is injured by the negligence of B., then B. is liable to A. (2) If A., by his own fault, is injured by B. who has committed no fault, then B. is not liable to A. Class 3 is made up of cases in which A. is injured by B. as a consequence of the fault more or less of both combined—cases in which the question of con tributory negligence may arise. In this class of case the following further distinctions must be made—(a) If notwithstanding B.'s negligence, A. with reasonable care could have avoided the injury, he cannot sue B. (Butterfield v. Forrester; Bridge v. Grand Junction Railway Co.; Dowell v. General Steam Navigation Co.); (b) If, notwithstanding A.'s negligence, B. with reasonable care could have avoided injuring A., the latter can sue B. (Puff v. Warman; Radley v. London and North-Western Railway Co. ; Davies v. Mann); (c) If there had been as much want of reasonable care on A.'s part as on B.'s ; or, in other words, if the proximate cause of the injury is the want of reasonable care on both sides, A. cannot sue B.—in such a case A. cannot with truth say that he has been injured by B.'s negligence, he can only with truth say that he has been injured by his own carelessness and B.'s negligence, and the two combined give no cause of action at common law. To sum up, contributory negligence on the part of the person injured does not exonerate the person in flicting the injury and disentitle the person injured from recovering damages ; provided, however, it can be shown that the person inflicting the injury might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the person injured. See DAMAGES.