Lucas v. New Bedford & Taunton Railroad

Metcalf, J. 1. The ruling, that the burden of proof was on the plaintiff to show that Mrs. Lucas exercised due care, that the defendants were guilty of negligence, and that such negligence was the cause of her injury, was undoubtedly correct. See Lane v. Crombie, 12 Pick. 177; Holbrook v. Utica & Schenectady Railroad, 2 Kernan, 236. Indeed, its correctness has not been questioned by the plaintiff’s counsel. 2. And we think it perfectly clear that Mrs. Lucas, at the time of the injury, did not sustain such a relation to the defendants as imposed on them any extraordinary care ; that they were not bound to give her special notice of the time of the departure of the train; and that, if they exercised ordinary care, it was the most that the law exacted of them. In Lygo v. Newbold, 9 Exch. 302, the plaintiff, without the defendant’s authority, but by permission of the defendant’s servant, rode in a cart with her goods, which the defendant had contracted to carry for her. The cart, being insecure, broke down, and the plaintiff was injured. The court held that the defendant was not liable for that injury, the plaintiff not being rightfully in the cart. 3. The chief question made by this plaintiff is, whether the law was rightly stated in the two following rulings which the judge proposed to make : First. That if Mrs. Lucas attempted to leave the cars after the train was started, or, finding the cars in motion as she was going out, persisted in making progress to get out, and such attempt was the cause of, or contributed in any degree to, the accident, the plaintiff could not recover. Second. That though there was negligence of the defendants in [71] moving the train, and in the jerk occurring after the first starting of the train, the defendants would not be liable if such jerk, and the want of due care on the part of Mrs. Lucas in attempting to step from the car, combined to produce the injury. It is objected to the first of these rulings, that it assumed, what should have been left to the jury, that Mrs. Lucas was not entitled to special notice of the starting of the train. We have already disposed of this objection, by deciding that she was not entitled to such notice. It is further objected that the effect of this was, that Mrs. Lucas was wanting in ordinary care in not leaving the cars before the time of their starting. But this was not its precise effect. Its effect was, that she was wanting in ordinary care in attempting to leave the cars when they were in motion. And of this it is impossible for us to entertain a doubt. It is objected to the second ruling, that it held Mrs. Lucas, who was placed in an exciting and alarming situation by the defendants’ wrong conduct, bound to exercise the usual degree of care which the law otherwise requires, that is, ordinary care. And it has been sometimes held that the rule respecting the exercise of ordinary care by a plaintiff does not apply to persons incapable of exercising it; as in the instance of young children. The cases of Lynch v. Nurdin, 1 Ad. & El. N. R. 29, and Robinson v. Cone, 22 Verm. 213, cited by the counsel for the plaintiff, were of that kind, and do not support this action. In the other case cited by him, Chaplin v. Hawes, 3 Car. & P. 554, the injury was caused by the collision of the carriages of A and B. Chief Justice Best held that A might recover of B, whose carriage was where it ought not to have been and where A’s might rightfully have been, though A might have avoided the injury by stopping or turning aside. The ground on which the judge proceeded was, that the meeting of the parties was sudden, and "on the sudden a man may not be sufficiently selfpossessed to know in what way to decide; and in such a case the wrongdoer is the party who is to be answerable for the mischief, though it might have been prevented by the other party’s acting differ* ently.” But that case is not like this. In that case, A was where he had a right to be when the danger first appeared ; but, [72] in the present case, Mrs. Lucas, when the train started and when the jerk occurred, was where she had no right to be. And conduct, which the law requires of those who wrongfully bring themselves into an emergency, is not to be measured by that which the law excuses in those who are wrongfully brought into an emergency by others. The other objection to the second ruling, that it left to Mrs. Lucas no locus posnitentice, is to be answered in the same manner as the first objection. She was in the wrong from the beginning. The exceptions state that “ she went out of the door of the car, on to the platform, after the cars had begun to move.” - No other objection was taken, in argument, to the foregoing two rulings at the trial. And we find that they conformed to the rule of law laid down in numerous cases. See Parker v. Adams, 12 Met. 415, and other cases cited in Angell on Carriers, §§ 556-566. More recent decisions have modified the rule, so that it is now expressed thus: Though there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendants’ negligence, he is entitled to recover. Bridge v. Grand Junction Railway, 3 M. & W. 248. Davies v. Mann, 10 M. & W. 549. Thorogood v. Bryan, 8 C. B. 115. Clayards v. Dethick, 12 Ad. & El. N. R. 439. Moore v. Central Railroad, 4 Zab. 268. It has therefore occurred to us to inquire whether the rule ought not to have been expressed by the judge in its modified form. And we are of opinion that if, in strictness, it ought to have been, (of which we express no opinion,) yet that the plaintiff could not have availed himself of this objection, if he had thought fit to make it; because the evidence. showed conclusively that Mrs. - Lucas, by exercising ordinary care, that is, by remaining in the car, might have avoided the consequences of the defendants’ negligence. The verdict therefore could not have been for the plaintiff, if the rule had been stated in its modified form. And when a party to a suit cannot have suffered by an error or an omission in the ruling of the court, he cannot have a new trial because of such error or omis sion. Judgment on the verdict for the defendants.