The opinion of the Court was delivered by
The action here was trespass on the case for a personal injury resulting from the negligent running оf their cars by the agents of the defendants. The plaintiff was not a passenger, and the defendants had assumed no responsibility, express or implied, for his- safety. According to his own showing, he was engaged in sawing wood with a steam sawing machine, screwed and. wedged to the very rail which he knew the defendants were accustomed to travel with their locomotive and trains. The Court ruled that he wаs lawfully there. We are obliged to say that he was not. He had the authority of Burns, an agent of the Rеading Railroad Company, for whom he .was sawing wmod; but it was in clear proof that Burns had no express authority to put him there. And what if he had? Neither.Nicolls, the superintendent, nor
When a passenger in a railway train is injured without fault on his part, the law presumes negligence in the carrier, for he undertook to carry safely, and we hold companies to thе strictest measure of accountability; but that they may be enabled to carry safely, the law insists uрon a clear track. If, therefore, a man plants himself on the rail, he must not expect the law to do more for him than to punish wanton injury. If he be injured from the ordinary pursuit of the company’s lеgalized business, let him blame his own rashness and’ folly.
It is an incontestible principle that where the injury complained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually in fault, there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief. A distinction is sometimes taken between proximate and rеmote causes of the injury > but here it is so evident that the imprudence of the plaintiff was the immediаte cause of the injury, that 'he cannot recover, even if the injury were in part directly ascribable to negligence on the part of the defendants.
It is unnecessary, in this view of 'the casе, to consider whether the Court erred in submitting the testimony to the jury to find negligence on the part of thе defendants. They were called on by the 2d and 3d points submitted to say that there was no such evidence, and a majority of this Court believe that there was none; but we do not place our prеsent ruling on that ground, but on the
The learned judge seemed to think we could not havе intended to cut up the plaintiff’s action by the roots when it was here last year, or we would not have sent it back. A moment’s reflection will show that this was a mistaken inference. The plaintiff’s declаration contains a good cause of action, and in such cases where we reversе, we always, award a venire de novo, both because he may, on a second trial, find evidence to supрort his narr., and because it is necessary to enable the defendant to recover his costs if the plaintiff fail to make out his case in evidence. We do so now. We send the case back to be made an end of in the Common Pleas, if it prove to ,be the case which the plaintiff’s evidence, as submitted to the Court below and sent up here, shows that it was on the last trial.
The judgment is reversed and a venire de novo awarded.