IMA NON REMOTA SPECTATOR.
"The true inquiry is, whether the injury sustained was such as, according to com mon experience and the usual course of events, might reasonably be anticipatedr Derry v. Flitner, 118 Mass. 131.' See L. R. 10 Q. B. 111; Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89; Lake Erie & W. R. Co. v. Close, 5 Ind. App. 444, 32 N: E. 588.
The foregoing are the general principles on which the right to recover damages is based. Many qualifying rules have been es tablished; of which tfie following are among the more important instances.. 'In an action for damages for an injury caused by negli gence, the plaintiff must himself appear to have been free from fault; for if his own negligence in any degree contributed directly to produce the injury, he can recover noth ing. The law will not attempt to apportion the loss according to the different degrees of negligence of the two parties ; 1 a & P. 181; Miller v. Trustees of Mariner's Church, 7 Me. 51, 20 'Am. Dec. 341; Loker v. Damon, 17 Pick. (Mass.) 284 ; Hay v. Cohoes Co., 3 Barb. (N. Y.) 49; Murphy v. Diamond, 3 La. Ann. 441; Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581; though this rule has in some cases been relaxed in favor of the plain tiff ; L. R. 1 Ap. Ca. 754; e. g,, if the injury would have occurred although the plaintiff had been free from negligence; 8 C. B. N. S. 115; Newhouse v. Miller, 35 Ind. 463; Walsh v. Transp: Co., 52 Mo. 434; Lindsey v. Town of Danville, 45 Vt. 72 ; or if the injury is wilful ; Cook v. R. & Bank. Co., 67 Ala. 533; Terre. Haute & I. R. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719; Lake Shore & M. S. R. Co. v. Bodemer, 139 III. 596, 29 N. E. 692, 32 Am. St. Rep. 218. See NEGLIGENCE. There is no right of action by an individual for damkge8 sustained from a public nuisance, so far as he only shares the common injury inflicted on the community; 5 Co. 72. For any 'special loss suffered by himself alone, he may recover; 4 Maule & S. 101; 2 Bingh. 263; 1 Bingh. N. C. 222 ; 2 id. 281; Baxter v. Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Proprietors of Quincy Canal v. Newcomb, 7 Metc. '('Mass.) 276, 39 Am. Dec. 778; Mayor, etc., of Pittsburgh v. Scott, 1 Pa. 309; O'Brien
v. R. Co., 17 Conn. 372 ; but in so far as the whole neighborhood suffer together, resort must he had to the public remedy; 7 Q. B. 339; Proprietors of Quincy Canal v. New comb, 7 Mete. (Mass.) 276, 39 Am. Dec. 778; Barr v. Stevens, 1 Bibb (Ky.) 293. Judicial officers are not liable in damages for errone ous decisions. See Junate; LAST Cues Omura/ Where the wrong committed by the de fendant amounted to a felony, the English rule was that the private remedy by action was stayed till conviction for the felony was had. This was in order to stimulate the exertions of private persons injured by the commission of crimes to bring offenders to justice. This rule has, however, been changed in some of the United States. Thus, in New York it is enacted that when the violation of a right admits of both a civil and criminal remedy, one is not merged in the other. And see Boardman v. Gore, 15 Mass. 336; Ocean Ins. Co. v. Fields, 2 Stor. 59, Fed. Cas. No. 10,406; Turner's Case, Ware 78, Fed. Cas. No. 14,248. A criminal prosecution and conviction for an assault and battery is not a bar to the recovery of punitive damages in a civil action for the same offence ; but it may be shown in miti gation of damages ; Rhodes v. Rodgers, 151 Pa. 634, 24 Atl. 1044; but see Roach v. Cald beck, 64 Vt. 593, 24 At]. 989. When a serv ant is injured through the negligence of a fellow-servant employed in the same enter prise or avocation, the common employer is not liable for damages. The servant, in en gaging, takes the risk of injury from the neg ligence of his fellow-servants ; McKinn. Fel low-Serv. 18 ; Farwell v. R. Corporation, 4 Mete. (Mass.) 49, 38 Am. Dec. 339; Hubgh v. R. Co., 6 La. Ann. 495 ; Ryan v. R. Co., 23 Pa. 384; Coon v. R. Co., 5 N. Y. 493; Shields v. Yonge, 15 Ga. 349, 60 Am. Dec. 698; Hon ner v. R. Co., 15 Ill. 550; Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 201; 5 Exch. 343. But this rule does not exonerate the master from liability for negligence of a servant in a different employment. See MASTER AND &WANT. But this rule has been altered in some states, and by act of congress in cer tain cases ; see EMPLOYERS' LIABILITY ACTS.