There is ample evidence of the negligent operation of the truck to require the submission of appropriate issues to the jury. We may assume, therefore, that the court below conсluded that the plaintiff was guilty of contributory negligence as a matter of law. It is upon this theory the cause is debated here.
Ordinarily, in actions founded on negligence, the mutual obligations of the рarties are so apparent discussion thereof.is not required. But here the “duty” feature of negligence is determinative.
*625 Negligence is a failure to perform some duty imposed by law. It may "be tbe breach of the duty imposed by some statute designed and intended ■to protect life or property. In that event the tort-feasor is liable for all •damages which may naturally and proximаtely result from his wrong without regard to whether he could have foreseen such injurious result.
“Then we have the general duty of using due care and caution.”
Drum v. Miller,
Actionable negligence is the breach of the duty of the party sought to be charged to exercise ordinary care for the safety of the plaintiff and •others similarly situated, which proximately causes the injury alleged. Contributory negligence is the breach of the duty of the plaintiff to exercise due care for his оwn safety in respect of the occurrence about which he complains, and if his failure to exercise due care for his own safety is one of the proximate contributing causes оf his injury, it will bar recovery. Otherwise, there is no real distinction between actionable negligence on the one hand and contributory negligence on the other. Foreseeability and proximаte cause are essential elements of both.
"Where an employee has the choice of two ways in which to do his work, one safe and the other dangerous, he owes his employer the duty •of selecting the safe way. This principle of law is so well established it needs no citation of authority to sustain it.
Where, as here, a brakeman or trainman has selected an unsafе and dangerous place to ride, and injury results, some courts hold that, as between him and his employer, he is guilty of contributory negligence as .a matter of law.
Williams v. Monongahela Connecting R. Co.,
*626
The nearest approach to this particular phase of the question in our reports is
Wimberley v. R. R.,
When the plaintiff took his seat on the pilot he may be said to have assumed the risks naturally incident to his exposed position, such as the risk of being thrown from the platform by the sudden starting, stopping, or other negligent operation, of the train. Whether, as between him аnd his employer, his negligence in assuming a place so obviously dangerous constitutes contributory negligence as a matter of law we need not now say, for this is not the question presented for decision.
Bearing in mind that, as applied here, contributory negligence is the breach of the duty, if any, to exercise ordinary care for his own safety which the plaintiff owed the defendant undеr the circumstances then existing, it cannot be said as a matter of law that he was guilty of such negligence as would necessarily bar recovery; that is, as between him and the defendant, his position on the train, voluntarily assumed, does not constitute contributory negligence as a matter of law under the circumstances here disclosed. To so hold would bar recovery in most, if not all, aсtions founded on negligence. If the plaintiff had been elsewhere, or at a safer place, rather than at the scene of the accident, he would have received no injury. This is not the proper basis for decision. We start with the fact that he had voluntarily taken a seat on the pilot platform of the train and, while in that position, came in the line of defendant’s opеration of its truck. Was his mere presence there one of the proximate causes of his injury? This is the crux of the case.
Plaintiff owed no duty to the defendant or its truck driver. It was no concern оf theirs whether he rode on the pilot platform or in the cab or in the caboose. They had no right to direct where he should ride or to complain that he chose a dangerous place when a safe place was available to him. However his act in assuming a dangerous place to ride may be labeled as between him and his employer, the jury may find here that thе conduct of defendant’s driver constitutes an independent, intervening act of negligence and that the position of plaintiff on the train was merely a condition or circumstance of the accident rather than one of the proxi-
mate causes thereof.
Powers v. Sternberg,
Plaintiff was required to foresee those results which might naturally and proximately flow from his act in selecting a dangerous seat on the train.
Wood v. Telephone Co.,
He was not under tbe duty to anticipate or foresee tbe negligent conduct of defendant’s servant and its attendant results. Instead, be bad •tbe right to assume tbat defendant’s driver and other motorists apprоaching tbe railroad at a grade crossing would exercise due care and obey the rules of the road.
Hobbs v. Coach Co.,
There is no case in this jurisdiction in which tbe facts are substantially identical. Counsel have not cited, and we have not found, any ■decision from any other jurisdiction with a similar fact situation. Yet there are cases in this and other jurisdictions in which the applicable principle оf law has been invoked.
In
Graham v. Charlotte,
In
Roberson v. Taxi Service, Inc.,
In Kryger v. Panaszy, supra, the plaintiff’s intestate got on the running board of an automobile, facing inside. The defendant suddenly and without warning backеd a truck out of his driveway into the car. As a result, plaintiff’s intestate was killed. It was insisted that the negligence of deceased barred recovery as a matter of law. The court did not agree. Instead, it said: “While the conduct of the deceased might be found negligent as regards the hazards naturally accompanying riding on a running board, that a truck such as the one operated by Panaszy should back out of a private driveway and crush her against the side of the car in which she was riding was not necessarily and as a matter of law a hazard in respect to which her conduct was negligent. In other words, even if the jury found that the decedent was negligent under the *628 circumstances in riding upon the running board, they might also have found that her position was a condition merely of her injury and nоt a cause of it.”
In
Robinson v. American Ice Co.,
In a similar case,
Guile v. Greenberg, 257 N.W.
649, the Court said: “Nothing that plaintiff did caused the two cars to come together . . . Plaintiff assumed risks naturally incident to his exposed position such as the risk of being thrown from the front of the truck upon starting, stopping, turning a corner, or hitting a bump on the road, etc. But in this case plaintiff’s injuries did not come proximately from his exposed position voluntаrily assumed.” See also
Kuykendall v. Coach Line,
So then the mere fact the plaintiff assumed a position of peril on the pilot platform of the train, standing alone, is not sufficient to bar his recovery. To charge him with contributory negligence it must be made to appear that he had knowledge of the risk which caused his injury and that, having opportunity either to incur it or to avoid it, he voluntarily chose to incur it. If his рosition simply afforded an opportunity for defendant’s negligence to cause injury, but was not in itself a contributing cause of the injury, there was no negligence on his part.
It follows that the question presented is one for a jury to decide. For that reason the judgment entered is
Reversed.