Start, J., in LaFlam v. Missisquoi Pulp Company, 74 Vt. 125. 143: “The defendants, by their second request, asked for an instruction that if, by the exercise of ordinary care and prudence upon the part of the plaintiff, he would not have been injured, he cannot recover. The court instructed the jury, that, if the plaintiff’s want of ordinary care or his negligence contributed in any material degree to the happening of the accident, he is not entitled to recover, even though the defendants were negligent. This was in accordance with the rule as it has sometimes been stated by this court. In Magoon v. Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, and in Hill v. New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the negligence or carelessness of the person injured contributes in any material degree to the production of the injury complained of, he cannot recover; but in Reynolds v. Boston & Maine R. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908, the holding is that, if the negligence of the plaintiff contributes in the least degree to the accident, there can be no recovery. We think this is the correct rule, and that the instruction should have conformed to it. The use of the word ‘material’ left the jury at liberty to consider the degree of the plaintiff’s negligence, which is not considered permissible in jurisdictions where the doctrine of contributory negligence prevails. To allow jurors to consider so-called degrees of negligence would, in effect, nullify this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379.”
“Negligence contributing as an efficient cause of injury will defeat an action therefor, irrespective of the quantum of negligence of the respective parties.” Jaggard, J., in O’Brien v. St. Paul City R. Co., 98 Minn. 205, 207–208.
“An effect often has many proximate, and many remote, causes. If the negligence of the plaintiff was one of the proximate causes of the injury,—if it directly contributed to the unfortunate result,—he cannot recover, even though the negligence of the defendant also contributed to it.” Sanborn, J., in Missouri Pac. R. Co. v. Moseley, 57 Fed. 921, 925.
“While purporting to give a legal definition of contributory negligence, this instruction demands that such negligence shall be found the sole and direct cause of the accident—an interpretation at war with the term ‘contributory’ itself.” Reyburn, J., in Hanheide v. St. Louis Transit Co., 104 Mo. App. 323, 330.
“... if it appears that his [plaintiff’s] negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called ‘contributory negligence.’” Whittle, J., in Richmond Traction Co. v. Martin’s Adm’r, 102 Va. 209, 213.
“... there was a lack of ordinary care on his [the deceased’s] part, and where this occurs, contributing proximately to the injury, this lack will prevent a recovery, though the negligence of the other party may have much more contributed thereto.” Beard, C. J., in Memphis Gas & Electric Co. v. Simpson, (Tenn.) 109 S. W. 1155, 1158.
American Woolen Co. v. Stewart, (C. C. A.) 217 Fed. 1; Birmingham R. Co. v. Bynum, 139 Ala. 389; St. Louis R. Co. v. Musgrove, 113 Ark. 599; Denver R. Co. v. Maydole, 33 Col. 150; Robinson v. Huber, (Del.) 63 Atl. 873; O’Keefe v. Chicago R. Co., 32 Ia. 467; Pennsylvania R. Co. v. Roney, 89 Ind. 453; Atchison R. Co. v. Henry, 57 Kan. 154; Mann v. City, 154 Ky. 154; Marble v. Ross, 124 Mass. 44; Mynning v. Detroit R. Co., 59 Mich. 257; Hurt v. St. Louis R. Co., 94 Mo. 255; Village v. Holliday, 50 Neb. 229; Pennsylvania R. Co. v. Righter, 42 N. J. Law, 180; St. Louis R. Co. v. Elsing, 37 Okl. 333; Weaver v. Pennsylvania R. Co., 212 Pa. St. 632; Weir v. Haverford Electric Co., 221 Pa. St. 611; McLean v. Atlantic R. Co., 81 S. C. 100; McDonald v. International R. Co., 86 Tex. 1; Hazen v. Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. v. Lee, 84 Va. 642; Franklin v. Engel, 34 Wash. 480; Tesch v. Milwaukee R. Co., 108 Wis. 593 Accord.
[182]. “The doctrine of comparative negligence no longer exists in this state.” Wilkin, J., in City v. Holcomb, 205 Ill. 643, 646.
“The intrinsic difficulty of the subject of contributory negligence has led to three distinct lines of decisions. In England and a majority of the States of the Union, the negligence of the plaintiff which contributes to the injury is held to be an absolute bar to the action. In the States of Illinois and Georgia the doctrine of comparative negligence has been adopted, that is, if on comparing the negligence of the plaintiff with that of the defendant, the former is found to be slight and the latter gross, the plaintiff may recover. In this State we hold that although the injured party may contribute to the injury by his own carelessness or wrongful conduct, yet if the act or negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the party injured being taken into consideration, by way of mitigation, in estimating the damages. In other words, if defendant was guilty of a wrong by which plaintiff is injured, and plaintiff was also in some degree negligent or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia Railroad Company v. Fain, 12 Lea, 35. At the same time we hold that if a party by his own gross negligence bring an injury upon himself, or proximately contribute to such injury, he cannot recover; neither can he recover in cases of mutual negligence where both parties are equally blamable. Id. The principal difference between our rule and the English rule, as modified by the more recent decisions, is in allowing the damages to be mitigated by the conduct of the injured party. In this respect our rule meets the objection which Mr. Thompson, in his notes on contributory negligence, makes to the construction put by some of the courts on the English rule, or to the application of the rule in particular cases. ‘It is,’ he says, ‘nothing more than a declaration that although both parties have been guilty of negligence contributing to the injury, the party who suffered the damage is to be completely exonerated, and the other party is not to be exonerated to any extent; the former is to recover of the latter without any abatement on account of his own share of the fault, all the damages which he has suffered.’ ‘This is,’ he adds, ‘manifest injustice; and yet it is practiced every day in the courts of England and in those of nearly every State in the Union.’ 2 Thompson on Neg. 1155. Our rule, moreover, is merely an adaptation of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of provocation is always admissible in evidence to mitigate the damages. Jackaway v. Dula, 7 Yer. 82; Chambers v. Porter, 5 Cold. 273, 280; Suth. on Dam. 745.” Cooper, J., in Louisville R. Co. v. Fleming, 14 Lea, (Tenn.) 128, 135. But see Southern R. Co. v. Pugh, 97 Tenn. 624.
[183]. This refers to § 8657: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations....”