37 Mo. 537 | Mo. | 1866
delivered the opinion of the court.
In the discussion of this case at the bar, the counsel took
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
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
The rational rule, and the one, as we think, established by
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
Judgment affirmed.