Huelsenkamp v. Citizens' Railway Co.

Wagner, Judge, delivered the opinion of the court. In the discussion of this case at the bar, the counsel took — 546 — an exceedingly wide range, examining at length the doctrine applicable to the law of carriers, and also of contributory negligence. It may be conceded that the law in reference to the liabilities aud responsibilities of carriers of passengers is now well understood and defined. They are not, as in the case of carriers of goods, insurers and responsible for all damages which do not fall within the excepted cases of the acts of God and the public enemy, but they are bound to the utmost care and skill in the performance of their duty. The degree of responsibility, therefore, to which carriers of passengers are subjected, is not ordinary care, which will make them liable only for ordinary neglect, but extraordinary care, which renders them liable for slight neglect. Public policy and safety require that they should be held to the greatest possible care and diligence, and that the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents — Ang. Corp. § 568; Ingalls v. Bills, 9 Met. 1; Stokes v. Saltonstall, 13 Pet. 181; Phil. & Reading R.R. Co., v. Derby, 14 How. 486; Stm. bt. New World et al., v. King, 16 How. 469. But the principal ground relied on by the appellant in resisting a recovery, is that the deceased was guilty of negligence, and contributed to the accident which resulted in his death; and that where both parties are in fault the plaintiff cannot recover. Perhaps no question has been more discussed and litigated in the courts, of late years, than this very question of what will amount to such fault or negligence as will preclude a party iron maintaining an action for an injury. Where a person was injured by an obstruction placed in the highway, against which he fell, aud brought his action to recover damages against the person who caused the obstruction, Lord Ellenborough said, “ One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action; an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff” —Butterfield v. Forrester, 11 East. 60. In Galena & Chi — 547 — cago Union R.R. Co. v. Yarwood, 15 Ills. 468, a passenger was taken on the train to be transported for a short distance, and was told that the passenger cars were full, and that he must ride in the baggage car; and having entered the baggage car, he then commenced playing and scuffling with two fellow-passengers, and in the course thereof ran from the baggage car into the passenger car, and the train being thrown from the track, rushed out at the forward end of the latter car and jumped from the platform, by which his leg was broken. It was held, that it was culpable negligence in him to put himself in that position, contrary to the terms on which he was received as a passenger, which made the leap necessary to escape the peril, and that consequently he was not entitled to recover. And if a man chooses to ride on a railroad with his head and arms out of the car window, and in passing a dangerous place in the road, disregards an audible warning, by the conductor, of the danger of putting his head or limbs outside the car, and will not ride like a prudent man, he will have to bear the consequences of his foolishness. So where a lunatic was travelling in the cars upon a railroad, in company with his father, who had paid the fare for both and taken tickets; the father got out at a stopping-place to procure refreshments, leaving his son in the cars, without giving notice to any one of his situation, and while absent the train started. On regaining the cars the father did not find his son where he had left him, the latter having changed his seat. The conductor, in the absence of the father, applied to the lunatic for his ticket, not knowing him to be insane or that his fare had been paid. The lunatic refusing to deliver his ticket, the conductor caused the train to be stopped and the lunatic to be put off the cars, in consequence of which the lunatic was run over by another train of cars and killed. The evidence not showing any,'negligence or want of care on the part of the conductor, but Showing great negligence and imprudence in the Conduct of -the'^lunatic and his father, it was held that An action couldi^^t be maintained by the personal representatives of the lipátic against — 548 — tlie railroad company, under the New York statute, authorizing the recovery of damages in case of death by the wrongful act, neglect or default of another — Willets v. Buffalo & Rochester R.R. Co., 14 Barb. 585. Tho case of Chamberlain v. Milwaukee & Miss. R.R. Co., 7 Wis. 425, is not an authority to the extent contended for by the counsel for the appellant. There the court which tried the case instructed the jury, that the fact that the plaintiff was on the train and was injured by being thrown off and run over, would of itself constitute & prima facie case in which the plaintiff would have the right to recover. The court held that this instruction was erroneous, and said the accident might have happened by his own want of ordinary care and prudence, while upon the top of the cars at the brake, and under such circumstances as would exonerate the company from all blame in the premises. But that, if he could show he was exercising ordinary care and diligence, and he waq injured by the carelessness and negligence of the servants of the company, he would be entitled to damages, and that he must also show that his own negligence did not contribute to the injury. Where there is a choice of positions upon a railroad, either of which a passenger may lawfully take, he is not obliged to select that which is the least dangerous. Thus in Carrol v. N. Y. & N. Hav. R.R. Co., 1 Duer, 571, the plaintiff was injured by a collision of two trains running in opposite directions. The plaintiff was at the time of the collision in the post-office department in the baggage car, being lawfully there and with the acquiescence of the conductor. It was a much more dangerous location, on the happening of such a collision as took place, than a seat in the passenger cars, and he knew the fact, and had he been in the passenger car he would not have been injured. It was held, that negligence is the violation of tho obligation which enjoins care and caution in what we do, and that the plaintiff not being under any obligation to be more prudent and careful than he was, in contemplation of there possibly being such culpable conduct on the part of the defendant as would endanger his life, if ho — 549 — remained where he was, and his personal safety on any part of the train, and not being a trespasser, was not to be precluded from his action because he might have selected a position of' comparative safety. And though a passenger may have been upon the cars in violation of the rules of the railroad company, yet if it appears to the jury that these rules have been waived or revoked in his favor, he will nevertheless be entitled to his action for his injuries suffered from any want of care on the part of the company — Grt. N.W. R.R. Co. v. Harrison, 26 Eng. Law & Eq. 443; Collett v. London & N.W. R.R. Co., 6 Eng. Law & Eq. 305. We take the correct rule to be, that to the liability of a railway company as a passenger carrier, two things are requisite : That the company shall be guilty of some negligence which mediately or immediately produced or enhanced the injury, and that passengers should not have been guilty of any carelessness and imprudence which directly contributed to the injury, since no one can recover for an injury of which his own negligence was in whole or in part the proximate cause; and although the plaintiff’s misconduct may have contributed remotely to the injury, if the defendant’s misconduct was the immediate cause of it, and with the exercise of prudence he might have prevented it, he is not excused — Redf. Railw., § 150, pp. 330-1, 2 ed.; Eobinson v. Cone, 22 Vt. 213; Illidge v. Goodwin, 5 C. & P. 190; Zemp v. W. & M. R.R. Co., 9 Rich. Law, 84. The general rule of law in regard to what negligence will prevent a plaintiff from recovering was much discussed in a recent case in the English Exchequer, and the principle arrived at was substantially the same as that laid down above. It seems from the report that the plaintiff had-fettered an ass so that it could not escape, and left it in the highway, and that the defendant negligently drove his horses and wagon against the ass and killed it. Lord Abinger, Ch. B., in delivering the opinion of the court, said “ the defendant had not denied that the ass was lawfully in the highway, and therefore we must assume it to be lawfully there ; but even were — 550 — it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” And, Parke, B., added, “ the judge simply told the jury that the mere fact of negligence on the part of the. plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that if they were of the opinion that it was caused by the fault of the defendant’s servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass on the road would not bar the plaintiff of his action. All that is perfectly correct, for although the ass may. have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, Or the purposely funning against a carriage going on the wrong side of the road” — Davies v. Mann, 10 Mees. & W. 545. The same doctrine is declared and enforced in the Queen’s Bench — Lynch v. Nurdin, 1 Ad. & El. 29, n. s. In the very able and carefully considered case of Beers v. Housatonic R.R. Co., 19 Conn.-566, the question is critically ex-amined and many of the authorities referred to, and the court say, that there having been negligence on the part of the defendants, it was not sufficient for them, in order to excuse themselves, to show merely that there was a want of care on the part of the plaintiff, unless it was a want of such a degree of care as it was incumbent on the plaintiff to exercise. In other words, if the plaintiff exercised all the care that the law required of him, the defendants cannot deliver themselves from the effects of negligence on their part. Otherwise the plaintiff would be left without redress for an injury wrongfully inflicted on him by the defendants, when the former had been guilty of no want of duty. The rational rule, and the one, as we think, established by — 551 — the best authorities, in reference to the care incumbent on the plaintiff, is, that it must be ordinary care, as it is termed, which, as stated by Lord Denman, in interpreting that phrase as used by Lord Ellenborough, means “ that degree of care which may reasonably be expected from a person in the plaintiff’s situation,”- and is synonymous with reasonable care. It would seem that the principle, that one who had himself used reasonable care, but had, notwithstanding, suffered an injury from the negligence of another, should have redress for that injury, is so obviously just that it carries with it its own vindication. But it does not rest on its own inherent reasonableness. The authorities in support of it are numerous and explicit, and although it has been supposed that the cases go so far as to decide, that the want of any degree of care whatever, however great, on the part of the plaintiff, concurring with the negligence of the defendant, will preclude a recovery by the former, we are satisfied, after a careful examination of all the cases, that no well considered case, perfectly understood, sustains that position without scrutinizing in detail the cases which are deemed to favor this doctrine. It will be apparent, on an examination of them, that this erroneous impression has arisen from a want of precision in some of them, in the manner of laying down the rule which was deemed applicable to them by the judges, and from an incorrect apprehension of their language in others. It will be found, in looking at the circumstances of these cases, that the fault or negligence of the plaintiff, to which the judges alluded, as being that which would preclude a recovery, if it concurred with the negligence of the defendant, consisted not of the least degree of negligence, but of such a degree as would amount to the want of ordinary or reasonable care, and that although it was not characterized by those terms, it was obviously the degree of negligence or fault which was intended. And in several of them the right of the plaintiff to recover is expressly placed on the question, whether he exercised a reasonable care to avoid the consequences of the defendant’s negligence. In further — 552 — support of the rule heretofore laid down, we refer to the case of Trow v. The Vermont Central R.R. Co., 24 Vt. 487, where the question is examined and the principle sustained. The court remarks, “this leads our investigation to the question, whether an action can be sustained when the negligence of the plaintiff and the defendant have mutually co-operated in producing the injury for which the action is brought. On this question the following rules will be found established by the authorities. Where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words proximate cause’ is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason that, as there can be no apportionment of damages, there can be no recovery.’ So where the negligence of the plaintiff is proximate; and that of the defendant remote or consisting in some other matter than what occurred at the time of the injury, in such case no action can be sustained, for the reason that the immediate cause was the act of the plaintiff himself. Under this rule falls that class of cases where the injury arose from the want of ordinary or proper care on the part of the plaintiff at the time of its commission. These principles are sustained by Hill v. Warren, 2 Stark. 377; 7 Met. 274; 12 Met. 415; 5 Hill, 282; 6 Hill, 592; Williams v. Holland, 6 C. & R. 23. On the other hand, when the negligence of the defendant is proximate, and that of the plaintiff remote, the action can then well be sustained, although the plaintiff is not entirely without fault. This seems to be now settled in England and in this country. Therefore, if there be negligence ,on the part of the plaintiff, yet if, at the time the injury was ¿committed, it might have been avoided by the defendant in ;ithe exercise of reasonable care and prudence, an action will ¿lie for the injuryAnd the same rule is established and maintaTtreíPf¡VGeorgia. In an action for killing a slave, the defence was that the slave’s negligence contributed to the inury, but the Supreme Court, per Lumpkin, J., say, it is — 553 — insisted that, if the injury in this case resulted in whole or in part from the misconduct of the plaintiff’s servant, that he cannot recover; and this seems to have been the rule laid down in Butterfield v. Forrester, 11 East. 60, and Luxford v. Large, 5 Car. & Pay. 421. But this doctrine has been modified in later cases, and in Lynch v. Nurdin, 1 Ad. & El. n. s. 29, it was held that the defendant was liable in an action on the case, though the plaintiff was a trespasser and contributed to the mischief by his own act. And this case has been followed in Robinson v. Cone, 22 Vt. 213, and Birge v. Goodwin, 19 Conn. 507, and numerous other adjudications in this country. We approve of this modification of the principle, and think that it ought to be left to the jury to say whether, notwithstanding the imprudence of the plaintiff’s servant, the defendant could not, in the exercise of reasonable diligence, have prevented a collision” — Macon & W. R.R. Co. v. Davis’ adm’r, &c., 18 Ga. 679. Now, in the case under consideration, the evidence shows that the railway company were in the habit of carrying passengers on the platforms of its cars, and collecting fare for the same. The position in which the deceased placed himself was perhaps unsafe, but it was not prohibited ; and the evidence further shows, that owing to the crowded state of the cars, there was no other place he could take. Had there been any objection to carrying him in that manner, it would have been competent for the company or its employees to have put him off the car; but not having done so, they were bound to carry him with skill, prudence and care. There is nothing to show that he failed to exercise ordinary prudence and care. He might, in all probability, have avoided the catastrophe by being on the alert and exercising extraordinary vigilance, but such was not required of him. He stood within a few feet of the driver, and the driver knew, or at least it was his duty to know, the close proximity of the cars when they were about to collide, and also the position of the passengers on the platform. His driving steadily ahead, under such circumstances, stamps the act with recklessness and — 554 — gross negligence. The question of negligence was for the jury, and was properly submitted to them under instructions which fairly and correctly presented the true issue in the case and the law arising thereon. The instructions given by the court for the respondent and the appellant, when taken together, are unobjectionable, and properly apply the law to the case. It was not error in refusing the additional instructions asked for by the appellant, as the whole matter had been already fairly presented. Judgment affirmed. Judge Holmes concurs; Judge Lovelace absent.