In Scotland the English rule is followed, and a recent case illustrates its injustice. A guest in a hotel, during the night opened a door which he mis took for the door of a lavatory. It opened into the elevator, and he fell and was injured. The jury thought there was negligence on the plaintiff's part in stepping forward in the dark, and there was no doubt that this negligence was the proximate cause of the accident. But they thought the hotel keeper had also been negligent in not having the door into the elevator more carefully guarded and distinguished. They brought in a verdict "Find for the plaintiff, but in respect of there being contributory negligence on the part of the plaintiff, assess the damages at £300." It was held that there must be a new trial on the ground that the jury were not entitled after finding contributory negligence proved to give any damages to the plaintiff. (Florence v. Mann, 1890, Court of Session Cases, 4th Series, vol. 18, p. 247). I do not doubt that the law was correctly applied, but I cannot help thinking that the verdict, though bad In law, was both just and sensible.

In regard to contributory negligence the French law, takes a more lenient view. It is now generally admitted by French Courts that where both plaintiff and defendant, are shown to have been in fault, where there is faute commune the Court must try to apportion the damages. The plaintiff ought not to get full damages, seeing he was partly to blame, but he ought to get some damagés seeing he was not wholly to blame. (Cass., 10th Nov. 1884, D. 85, 1. 433; Cass. 29th March 1836, D. 87, 1. 480, Sourdat, 1. 8. 662 Baudry-Lacantinerie," Précis," 2. s. 1348.) The question as to whose fault was the proximate cause has not here the same importance as in the Eng lish theory. The Court considers rather which is the

principal cause, or whose negligence is the greater, and adjusts the damages accordingly. If the parties seem to have been about equally to blame the loss is divided. In many French Courts the practice has become common to give the plaintiff in such cases half the damages to which he would otherwise have been entitled. He has suffered to the extent of $1000, but he was himself to blame, give him $500." If, however, his fault was very gross and that of the defendant very slight, damages may be refused altogether, (Larombière, art. 1382, No. 29).

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The rule of dividing the loss in such a way if pos sible as that each of the two negligent parties shall pay for that part of it which is due to his fault is applied in English law to the liability of two shipowners whose vessels come into collision by the fault of both. Sir F. Pollock says it is a rule of thumb " (Torts. 2nd ed., p. 412), and so it may be. But, I confess, I prefer it to the rule of making one fault cancel another. In the Bernina, (13 App. Ca. 1) Lindley, L. J., declared, he could not see why the admiralty principle as to injuries to ships, might not with equal justice be applied to cases of injuries to persons.

In this Province the French rule as to faute commune entitling the Court to divide the damages was spoken of with approval by Dorion, C. J., in C. P. R. Co. v. Cadieux, 1887, M. L. R.. 3 Q. B. 315. That learned judge said, however, that up to that time it had not been adopted in the Province of Quebec. Since then it has been applied in several cases (Clement v. Rousseau, R. J. Q., 1 C. S. 263; Carbonneau v. Lainé, R. J. Q., 5 C. S. 343; Lapierre v. Donnelly, M. L. R., 7 S. C. 197). I am not in a position to say whether it, is now regarded as settled law.

So far as I can discover the point has not yet been

fully discussed in the Supreme Court. The difference between the French view and the English was founded upon in the very recent case of Roberts v. Hawkins, (1898, 29 S. C. R. 218). But in the result the Court found that there was in that case no negligence on the part of the defendants to which the negligence of the plaintiff might have been contributory. The accident was caused solely by the plaintiff's own fault.

Recent French Jurisprudence.

I have now stated, as fairly as I can in the space at my disposal, the English law prior to 1898, and I have indicated two important points, viz. the defences of "fellow workman" and "contributory negligence," as to both of which the French law Was more favourable to the workman. I now wish to notice briefly a somewhat curious development of the French law of quite recent date. As the hardship of allowing the risque professionnel to fall on the workman came to press more and more upon the popular conscience it began to be suggested by ingenious lawyers that possibly the Civil Code was more humane than had hitherto been thought. Was it clear that the workman must prove that his employer had been in fault? Might not the law presume fault without proof? or might there not be discovered in the code some other provision under which the employer might be found liable, though his freedom from fault was as clear as the noon-day sun?

It is proverbial in England that "hard cases make bad law." Now, speaking with all respect for those who differ, I think that a better illustration of the proverb could hardly be found than in the recent attempts made in France and Belgium to circumvent the code upon the question of employers' liability.

Given a poor workman, a rich employer, (perhaps a large railway company), an ingenious advocate, and a humane judge anxious to give a reparation which he feels that natural justice demands, and, as all lawyers will see, a good deal may be done with a code. In Belgium, the question ouvrière has been for years very acute, and it is, therefore, not surprising that the main attack upon the old law has been directed from that quarter.

The articles 1382, 1386 of the Code Civil Belge are identical with those of the Code Napoléon, and, with one or two differences immaterial for the present purpose, identical also with our articles 1053, 1055. One of the chief advocates of the new view was M. Sainctelette, a former minister of state in Belgium. (Sainetelette, De la responsabilité et de la garantie, Paris et Bruxelles, 1884, see esp. pp. 129 seq.) Other supporters are Laurent (vol. 20, No. 639) and Marc Sauzet, Revue critique de législation e' de jurisprudence, 1883.

The arguments take two forms:

1. Retaining the theory of all the old writers, and of the jurisprudence, that the liability of the employer rests on delict or quasi-delict, it is urged that, if an accident occurs, there is a presumption that the master is in fault, and he is liable in damages unless he proves that the accident was due to an unavoidable cause. The ordinary rules of evidence are to be inverted to meet the "hard case" of the workman, and the onus is to be thrown on the defendant. The argument is supported by the provisions of the Code, that one is responsible for the things which he has under his care-sous sa garde,-and by the analogy of the liability, incurred by the owner of an animal which hurts anyone, or of a building which falls and causes loss to a third person.

M. Sainctelette himself presented this contention before the Cour de Cassation de Belgique, but did not succeed in convincing the court. They held that the owner of an animal was liable not as owner but as negligent. That this was so in the case of the owner of the building was shewn by the fact that he was only liable when the ruin happened from want of repairs, or from original defect in its construction. (Journal des Tribunaux, 1889, p. 441).

2. The soundness of the old law is challenged upon an entirely different ground. Leaving out of sight altogether the question of negligence-faute délictuelle may not the master be held liable for breach of contract -faute contractuelle ?

This seems still more adventurous. It is seriously maintained that in every contract of employment there is an implied term that the employer shall return the workman safe and sound to the bosom of his family. If he does not fulfil this implied obligation he is in breach of contract. This view has been adopted in Luxembourg by the Cour Supérieure. (S. 1885, 4, 25).

That Court has held that under the contract the employer guarantees the workman against accidents from machinery. Il doit répondre de sa machine visà-vis de ses ouvriers. The master must pay for the accident anonyme. He can only escape by proving

that the accident was due either to the fault of the workman or to force majeure. And force majeure is not cas fortuit. Force majeure must be something quite unconnected with the machine or the work, not part of the risque professionnel. E. g. if the workman is swallowed up by an earthquake, or devoured by a bear, the employer is not held to have contracted to take such a risk for it is not incident to the work. The French Courts, at least the Cour de Cassation, and the Courts of Appeal, in spite of many attacks and