Chambers v. Western North Carolina Railroad

Ashe, J. The intestate of the plaintiff was a switchman on the Western North Carolina railroad, and it was his business, when the train ran back from Newton down to the “ Y ” into the regular track, to change the switch so that the train might proceed in its regular course. The train, at the time the plaintiff’s intestate was injured was running west and the switch where the accident happened was about 250 yards east of Conover station, which was a regular station. The witnesses for the plaintiff disagreed as to whose duty it was to give the signal to the train to move on after closing the switch, but all the witnesses for the defendant concurred that the rule required the switchman to get on the train after the switch was closed and before it began to move. The train necessarily must have stopped after passing through a switch like that, where it had to back down the main track and then change its course. It was at this point, according to the evidence, it was the duty of the deceased to have got on the cars- — the witnesses concurring that it was the rule of the company after the switch was closed for the switchman to go down the road and get on the cars while they were stationary, and as a servant of the company it was his duty to obey its rules. Pierce on Railroads, 378, note 3. But the deceased violated this rule, for after he had closed the switch, and the cars had backed down the main track to where they stopped for retrograde movement, the deceased, instead of going down to where they had stopped, in *475 Compliance with the rules of the company, remained near the switch, and waived his lantern for the engineer to advance, and we must infer that the train was delayed longer than usual at the switch before reversing its course, for the switchman, while waiving his lantern for the train to advance, called out to the engineer to “ hurry up,” as if there was some delay of which he was impatient. As the train passed him he attempted to get aboard. The night was dark and the ground muddy, and although the train is said to have been running at the speed of only four or five miles an hour, yet it was moving at a rate sufficiently fast, as the deceased said to one witness, to throw him around under the cars on his missing to catch one of the iron rods. What was this but gross neglect on the part of the deceased ? If he had gone back to the train when it stopped near the switch, or had walked up to Conover station, where the train always stopped and did stop that night, he could have reached it by walking at an ordinary pace, and could have got aboard while it was motionless. There was no danger of his being left, and no necessity for him to take any risk. When there are two modes left to a party for performing his duty, one of which is safe and another exposes him to danger, and he takes the latter as a matter of choice, he cannot complain if he sustains an injury. Pierce on Railroads, 378, note 2. In doing so he contributes to the injury, and is the proximate cause thereof. “The servant cannot recover, if his own want of ordinary care has contributed to the injury, or when, by the exercise of ordinary care, he might have avoided it.” * * His negligence may consist in a reckless exposure of himself, as in an attempt to get on a train when running at a speed which makes the attempt dangerous. Pierce on Railroads, 787, and the numerous cases there cited in support of the posi *476 tion. The rule under this head is that the plaintiff cannot recover damages, if the injury could have been avoided by the exercise of ordinary or reasonable care on his part. It makes no difference if the injury was caused partly by the negligence of the defendant, if with ordinary care it could have been avoided by the plaintiff. In Butterfield v. Forrester, 11 East., 66, which is a leading case, it was held that, “although A has been injured by B’s negligence, A may not maintain an action against B for the damages, if A could have avoided receiving the injury by the exercise of ordinary care on his part.” And again in Robinson v. Cone, 22 Vt., 213, it was declared that in order to sustain an action for negligence of the defendant, whereby the plaintiff is alleged to have sustained an injury, it must appear that the injury did not occur from any want of ordinary care on the part of the plaintiff in whole or in part. Upon same point is Farmer v. Railroad, 88 N. C., 564. In this case it is too manifest that the plaintiff’s intestate came to'his death by his owd reckless act in attempting to board the train while in motion, which he could have avoided by the exercise of the ordinary care which is usually employed by men of common prudence. The plaintiff is, therefore, not entitled to recover in this action, and the judgment of the superior court is affirmed. No error. Affirmed.