2 N.D. 128 | N.D. | 1891
The opinion of the court was delivered by
On the 15th day of December, 1885, plaintiff was in the employ of defendant as a section hand, and was engaged in unloading wood in defendant’s yards at Eargo. On that day, and while riding on one of defendant’s trains from the round house to the depot — a distance of about one mile— plaintiff was struck by a switch signal, and knocked from the train, and injured. This action was brought to recover damages for such injury. The train on which plaintiff was riding was known as the “Jamestown accommodation.” It consisted of an engine, tender, freight caboose car, and an ordinary coach. This caboose car was equipped, as it appears such cars usually are on defendant’s road, with a platform and steps at each end, with a door in each end, and side doors in the front part. The front end of this car was being used as a baggage car, and the rear end as a smoking car. The end door in front was habitually locked, but there was no notice or anything to indicate that entrance could not be made at that end. Ordinarily, these cars, when in proper use on freight trains, are not locked at either end. This train regularly made a brief stop at the round house, and passage on the train was free to all parties from the round house to the depot. The section foreman of the gang in which plaintiff worked had directed the men under him who did not bring their dinners with them to ride on this train to the depot in going to dinner, and plaintiff and others of his fellow-workmen had been in the habit of so riding for a number of days. They had, however, been directed by the conductor
There was a general verdict for plaintiff. The facts as recited are either uncontradicted, or supported by such evidence that the jury might fairly find them to exist. There was a motion to take the case from the jury at the close of plaintiff’s testimony and repeated when the testimony was all in; but as the Same points are preserved and presented under the exceptions to the instructions, and to the refusal of the court to give certain instructions asked, the motion need not be specially noticed. The negligence of defendant would seem to be established too clearly to be seriously questioned. The learned counsel for defendant contend, however, that the facts do not establish any negligence of which this plaintiff can take advantage; that the defendant had the unrestricted right to erect structures on its right of way where and when it pleased, subject only to liabilities for such injuries as might be caused by such structures to employes while engaged in their proper sphere of duty, and to passengers while riding in their proper place in the cars. As a general proposition the contention is correct. Whether at the time of the injury plaintiff be regarded as a passenger or an employe, we think he was lawfully upon the train; that he was not a trespasser. But as the case has been submitted to us on the theory that his rights were only those of an employe, and the duty and liability of the defendant to him were only such as it owed to ■ its employes, and as that view is the more favorable to the defendant, we will accept it, in passing upon the case. The plaintiff was, then, lawfully on the train, in obedience to the orders of his foreman. He h'ad no duty to perform on the train except to ride in such
Appellant insists that its negligence in maintaining the switch stand was not the proximate cause of plaintiff’s injury, and that, as the facts were undisputed, the court should have so instructed the jury as a matter of law; and in support of this contention counsel cite West Mahoney Tp. v. Watson, 116 Pa. St. 344, 9 Atl. Rep. 430, and Railroad Co. v. Trich, 117 Pa. St. 390, 11 Atl. Rep. 627. It is claimed, first, that as it appears that plaintiff was crowded down upon the lower step and into a dangerous position by his fellow workmen upon the platform, therefore the superseding or responsible negligence of a third party intervened between the negligent act of defendant and the injury. As to this point, a perusal of the cases cited at once discloses that they are not applicable to the case at bar. In the first case, action was brought against the township to recover the value of a team by reason of the negligence of the township in suffering its highways to become obstructed. An ash heap had been allowed to accumulate in the highway, which overturned plaintiff’s sleigh, and the team ran away. After running some distance, they went upon the railroad track, but
“ The breach of duty on which an action is brought must be not only the cause, but the proximate cause, of the damage to plaintiff.” Under this familiar language, it is urged that the breach of duty in this case was not the proximate cause of the injury in the sense that the injury was not one that could have been naturally and reasonably anticipated as a result of such breach of duty. There is not an entire uniformity of holding upon this point. The rule most generally followed, and which we adopt, was announced in Railroad Co, v. Kellogg, 94 U. S. 469, as follows: “But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been seen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height,' and the proximity and combustible character of the saw mills and piles of lumber.” But the argument in this case is that defendant could not reasonably have foreseen or anticipated the circumstances that led up to the injury. We think this is a misconception of the rule. Shear & B. Neg. § 29, thus states the rule: “ The practical solution of the question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all