The general doctrine of contributory negligence is this, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant’s negligence, he is entitled to recover; if, by ordinary care, he might have avoided it, then he is the author of his own wrong [159]. The rule is laid down in another case as follows: If it be impossible to separate the injury occasioned by the plaintiff from that occasioned by the neglect of the defendant, the plaintiff cannot recover; if, however, they can be separated, for such injury as the plaintiff may show thus preceded solely from the want of ordinary skill or ordinary care of the defendant, he may recover [160]. The patient must exercise ordinary care and prudence; he is not bound to observe the utmost possible caution. And the ordinary care required has been defined to be that degree of care which persons of ordinary care and prudence are accustomed to use and employ under similar circumstances [161]. In fact the plaintiff must use his own senses [162]. Still, if he is rash and negligent, and yet the |69| physician has been so very neglectful that ordinary care on the part of the patient would not have prevented the unfortunate result, the plaintiff will be entitled to recover damages [163]. So, where the doctor’s negligence is the proximate cause of the injury, and that of the patient only the remote cause [164]. And proximate does not mean the first or nearest in order of time, but the first or nearest in order of cause [165]. It is to be remembered that a physician may be called to prescribe for cases which originated in the carelessness of the patient; and though such carelessness would remotely contribute to the injury sued for, it would not relieve the physician from liability for his distinct negligence and the separate injury occasioned thereby. The patient may also, while he is under treatment, injure himself by his own carelessness; yet he may recover of the physician, if he carelessly or unskilfully treats him afterwards, and thus does him a distinct injury [166]. The burden of proving that the plaintiff’s own negligence contributed to the injury rests upon the defendant [167]. Evidence that the patient requested the defendant to perform an operation, or do an act, which caused the injury, does not tend to prove contributory negligence, if the injury was not the natural result of such act carefully performed [168]. If the patient is insane, and so incapable of co-operating with the physician, contributory negligence is not imputable. And this inability the physician is bound to take into account [169]. |70| If the physician has injured the patient by his negligence, the refusal of the patient, or his custodian, to allow an experiment, by another physician, to repair the injury is not contributory negligence, unless he had reasonable assurance of the success of the experiment [170].