250 F. 353 | 2d Cir. | 1918
This action is grounded upon certain provisions in the Code of Virginia (Code Va. 1904, §,2902) which declare that, whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and to recover damages' in respect thereof, then the person who or corporation which would have been liable if death had not ensued shall be liable, notwithstanding the death of the person injured, and that the action shall be brought in the naipe of the personal representative of such deceased person for the benefit of the persons named in the statute. While some courts have held that the remedy under such a statute is confined to the courts of the state in which the injury took place, other courts have laid down the contrary doctrine, and held that on principles of comity an action may be;maintained in another state which has a statute of the same general character on the same subject, although the two statutes may differ in some of their details. Such statutes- are not penal, but remedial, and an action to recover damages for a tort is not local, but transitory. The Supreme Court has repeatedly recognized the right to bring the action in the second state. Spokane Inland R. R. v. Whitley, 237 U. S. 487, 35 Sup. Ct. 655, 59 L. Ed. 1060, L. R. A. 1915F, 736; Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 448, 449, 18 Sup. Ct. 105, 42 L. Ed. 537. And no question is raised in this case as to the right of the court to entertain jurisdiction of the subject-matter of the suit.
At the timé of the accident the decedent was operating an electric coal-carrying car, or lorry, at defendant’s plant. The plant, so far as is here material, consisted of a boiler room and an engine house connected with it. In the boiler room were 16 boilers, in pairs, back to back. The lorry ran on a track from certain coal pockets outside the • the building to a point inside, where the coal could be dumped out of the lorry and fed to the -boilers. The lorry- had a large “hopper,” in which coal was carried, and a bench at one end, on which .the'- driver
The danger to which he was exposed by the pipes under which he was compelled to pass was a perfectly obvious one, as evident to> him as to the defendant. His attention was also specifically directed to it by defendant’s agents. The intestate was a man of 25 years of age, and at the time of his employment represented that he had had experience in operating trolley cars. The testimony is that he was “a very smart fellow.” He was put to work the day prior to the accident under the direction of an experienced operator, who was to instruct him in the operation of the lorry. This man testified that he instructed him that he should stand up when he had to open up the wheel to turn the coal out, but that at other times he ought to sit down, and keep seated, and that lie was lo be careful to remain seated when he passed through the door.
The language of the Virginia statute upon which this action is based is not absolute in its terms. The liability which it creates is by virtue of the express language of the statute limited to that class of cases where the decedent would have been entitled to maintain an action to recover damages arising from the wrongful act if death had not ensued ; and the rule is that, if the negligence of the person killed contributed proximately to the fatal injury, no action can be maintained on the statute, because he himself could have brought none, had the injury not proved fatal. 1 Cooley on Torts, 264.
“It is not essential to this defense that the plaintiff's fault should have been in any degree the cause of the event by which he was injured. It is enough to defeat him if the injury might have been avoided by his exercise of ordinary care. The question to be determined in every case is, not whether the plaintiff’s negligence caused, but whether it contributed to, the injury of which he complains. This it may do by exposing him to the risk of injury, quite as effectively as if he committed the very act which injured him.”
The earliest reported English case on the subject of contributory negligence is Butterfield v. Forrester, 11 East, .60, decided in 1809. The defendant had negligently placed a pole so that it projected into the street, and the plaintiff, not observing it, negligently rode against it. In the case Rord Ellenborough said:
“A party is not to cast himself upon an obstruction which has been left by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right. * * * One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support the 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.”
The rule laid down in that case has been ever since followed in the courts of that country and of this country. The facts in that case make the doctrine it announces peculiarly applicable to the facts in the case now under consideration. If the decedent had retained his seat on the lorry, as he was instructed to do, he would have passed safely under the pipes. There was no danger, except when he stood up, and by standing up he contributed by his own negligence to the injury which caused his death, and therefore this action cannot be maintained.
“Many of the earlier and some of the later decisions confuse the two subjects of an acceptance by the servant of the risk of employment, and his contributory negligence. Thei two subjects lie close to each other and in some cases blend; but in other cases they are distinct subjects. Nevertheless, the ■judges frequently use the words ‘contributory negligence’ where they really mean an acceptance of the risk. In other instances they use the words ‘an acceptance of the risk’ where they really mean contributory negligence. T„et us illustrate this by the everyday accident connected with coupling ears. In order to make a coupling the cars must be thrust together, either by a locomotive, or by a propulsion called ‘kicking’ or ‘shunting,’ or by gravity. There is consequently always danger to the brakeman in the operation. If, in making a coupling, he accidentally, and without negligence, slips and falls, and passes under a wheel, his injury is ascribed to one of the ordinary risks of employment, which risk hevhas accepted, -and no damages can be recovered for it. But if, instead of using the coupling stick furnished by the railway company, he undertakes to make a coupling with his hands, and in the operation gets his hand crushed, this is contributory negligence, and consequently no damages*357 can be recovered. The distinction between the two cases is that in the former case the brakeman was not guilty of negligence at all; consequently the expression ‘contributory negligence’ could not he properly applied to his act, but what he suffered was from a mere accident attending the known danger, the risk which lie had assumed ; whereas in the latter case his own negligence and rashness brought upon him the injury which he suffered.”
In individual instances the two ideas sometimes seem to cover the same ground. 7 Cyc. 533, note 62.
“That a servant assumes the risk of every defect of which he had actual or constructive notice when he accepted the employment, so far as he comprehends, or ought to comprehend, the peril involved, even though such defect was due to the master’s negligence, provided there was no express promise to remove the' defect, nor any new obligation subsequently imposed upon the master with respect thereto.”
Judgment affirmed.