We have referred in many parts of this work, to a liability for negligence, whether this be put on the ground of contract or of tort. A defence very frequently made, is that of contributory negligence. The rules of law are well settled on this subject; and the apparent uncertainty of the law in some cases, is but the difficulty of applying these rules to the particular facts, which are indefinitely diversified in the numerous cases in which the question arises. If the plaintiff's own negligence was an immediate and a principal cause of the injury, without which it probably would not have occurred, it is certain he cannot recover damages. But, although the plaintiff is proved to have been somewhat negligent, and to have contributed somewhat to the injury by his negligence, he may nevertheless recover, if he can show gross or far greater negligence on the part of the defendant, and also that this negligence was the principal and proximate cause of the injury. Language is sometimes used from which it might be inferred that if both parties are negligent, and the defendant more so than the plaintiff, the plaintiff should recover. (de) The rule may be incapable of exact definition. But we think it is not law, that if both parties are negligent in a nearly equal degree, but the defendant is, on the whole, the most negligent of the two, the plaintiff shall prevail. To sustain the action, a greater than a merely perceptible difference must exist between the two degrees of negligence. (df) Whether the defendant used reasonable care, or

(cd) Manning v. Albee, 11 Allen, 620.

(d) Jefferies v. Great Western Railway Co. 6 Ellis & B. 802.

(dd) Morphy v. Blanch in, 18 La. An. 188; Hard v. Seeley, 47 Barb. 428.

(de) C. B. & Q. R R. Co. v. Payne, 40

Ill. 499.

(df) In a large part of the cases heretofore cited, under the subjects of a master's liability, or a carrier's liability, was guilty of contributory negligence, is said to be a question of fact for the jury; (dg) but the true rule is, that what constitutes contributory negligence is a question of law. And this being determined by the court, the jury then pass upon the question whether the facts in evidence bring the case within the legal definition of contributory negligence. As to this definition, the authorities cannot be reconciled. For example, it is very common for passengers in railroad cars to put their arms out of the windows. And it is so common for passengers who do this to be injured because of it, that it might seem an almost necessary conclusion that the act was proved to be dangerous, and that the doing of it would incur, without sufficient cause, a real peril, and would therefore be a negligence on the part of the passenger, on which the railroad company might rest their defence, unless gross negligence was shown on their part. So indeed it is held in Indiana, (dh) in Massachusetts, (di) in New York, (dj) and in Pennsylvania, (dk) But it is held in Wisconsin (dl) and in Illinois, (dm) that a passenger may thrust or rest his arm out of the window, without negligence, or at least without such negligence as constitutes a bar to his action.