120 Iowa 346 | Iowa | 1903
The injury for which plaintiff seeks to recover resulted from his being struck by a mail bag thrown from the mail car in a passenger train on defendant’s road while the train was still in motion. Plaintiff, at the time of receiving the injury, was standing on the passenger platform of defendant’s road at the town of Otho, and near the north end of such platform, the train
It seems to be well settled, and is not specially questioned in this case, that while an agent of the United States postal department, in charge of a mail car, is not a servant of the railroad company carrying mails under contract with the United States government, in such sense that the negligence of the agent in the matter of throwing a mail bag from the train, causing injury to a bystander, is chargeable to the railroad company (Munster v. Chicago, M. & St. P. R. Co., 61 Wis. 325, 21 N. W. Rep. 223, 50 Am. Rep. 141), yet the railway company is responsible in permitting the mail agent to pursue a course of conduct'
Notwithstanding the authorities which we have cited, there seems to be still some doubt about the nature and scope of the doctrine of assumption of risk, as distinguished
In the case before us it was found, by an answer of the jury to a special interrogatory, that the usage in regard to throwing mail bags from defendant’s train at this
We have assumed .that in such a case as this there might, under some circumstances, be proper occasion to apply the doctrine of assumption of risk. But we areun-willing
So in this case the plaintiff, and every other member of the public desiring to transact business or avail himself of the advantage^ of the service of defendant as a common carrier, including the carrier of mails under contract with the United States government, was entitled to go upon the station platform, and to assume that such platform was a reasonably safe place. Plaintiff was not bound to assume that, because on some previous occasions the defendant had allowed the mail ba'gs to be thrown from its trains in a negligent way, such negligent conduct would be continued, but had a right to assume that it would be discontinued. No doubt, as to a peculiar danger, apparent to him, and which he could reasonably have avoided, he would be guilty of contributory negligence if he failed to use reasonable care in avoiding it. If, in a particular instance, the operation of the train would make a particular ,place on the platform dangerous, on being notified in any way —either by his own observation, or by advice of'the servants of the company — of such danger, he should, if practicable, avoid being at such place and incurring the danger incident thereto; but this is the ordinary doctrine of contributory negligence, and is quite different from the doctrine that, by general notice of a dangerous course of conduct, one who seeks to avail himself of the privileges of the defendant’s platform assumes the risk of such course of conduct. Any such rule would make it feasible for a railroad carrier, by posting notices on its platform, “This is a dangerous place,” to relieve itself entirely from liability. Such a doctrine would be manifestly unreasonable.
Counsel dwell on the thought that plaintiff actively participated in the dangerous course of conduct, by placing himself in position to throw the mail matter which he
' It is further urged, however, in behalf of appellant, that if the course of negligent conduct on the part of the mail agent, as known to the defendant, was to throw off
We find no error in the action of the trial court, and the judgment is affirmed.