Lead Opinion
The plaintiff brought this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. At the trial - of the cause, when the plaintiff rested his case, he was non-suited, and thereafter a motion for a new trial was refused. Thereupon lie appealed to this court, claiming that the trial court erred in granting the motion for .a nonsuit and dismissed the action, and in overruling and denying his motion for a new trial. The facts disclosed by tb.e plaintiff’s testimony, and admitted by the pleadings, are substantially as follows: The defendant, at the time the plaintiff received the injury complained of, operated a railroad between Ogden, Utah, and San Francisco, Cal. On the 21st day of January, 1892, at Iron Point, in Nevada, the defendant entered into a contract with one Thomas Nelson for the transportation of 11 cars of sheep over its railroad to San Francisco. The contract provided free passage on the stock train for the plaintiff, who was an attendant to care for the sheep, and that the defendant, by reason of such free passage, would not be liable for any negligence upon its part by which the plaintiff might be injured. Under this contract, Thomas
Assuming these facts to be true, which is the rule for the purposes of a nonsuit, the question is, do they present such a case of negligence on the part of the defendant,
In negligence there is no purpose to perpetrate a wrong upon another, nor to omit to perform a duty towards another. There is, however, a want of proper skill or care or attention. Such is the general idea that where one person does or omits to do an act which causes injury to another., not intentionally, and there is an absence of proper skill or care or attention, such doing or omitting to do the act is characterized as negligence, and the author of the injury is liable therefor, in the absence of negligence on the part of the person injured. It has been defined as, in its civil relation, being such an inadvertent imperfection by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. I3ouv. Law Diet. Legal duty is one of the essential elements in negligence, and, unless it exists in favor of the person injured, be can have no redress. Even though such duty is owed to the public in general, still, unless the injured person can show that for some reason it was specially owing to him, be can maintain no action in his
The conductor, knew he was- somewhere on the train, and was compelled to go over the tops of the cars to get to the caboose, but gave him no warning of its approaching the snowshed, which was of insufficient height, to permit him to pass through safely while walking on the running boards. Under these existing facts and circumstances, it is not absolutely necessary or material, to-decide whether or not it was negligence per se, on the part of the railroad company, to maintain the snowshed in question at an insufficient height to allow a person to pass through safely while walking on top of the moving cars, although we are inclined to the affirmative of this view, as founded on both reason and justice. If, however, for any reason, an overhead structure, which exposes persons who are rightfully on a moving stock train, as was the plaintiff, to unusual risks, may be lawfully maintained at such height, then every principle of justice, as well as the exercise of ordinary care, requires that the company which maintains such structure shall. give warning in some way — either by word, or other
We conclude that the appellant was rightfully on the train, and had the right to assume that the snowshed was a safe structure, having received no notice to the contrary; that the respondent, on the occasion of the accident, was guilty of negligence, under the circumstances indicated by the proof; and that there was presented a question for the jury, and not one of law for the court. Whether or not the appellant, under the peculiar facts
As a new trial must be granted, we do not consider it necessary to discuss any other questions presented in the record. The judgment is reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial.
Dissenting Opinion
(dissenting):
I do not fully concur with the opinion and reasoning of the majority of this court in this case. The opinion is based upon the facts recited therein, and largely, though doubtless unintentionally, overlooks that part of the testimony showing negligence on the part of the plaintiff, upon which the nonsuit was evidently based. The contention of the appellant is based upon the alleged negligence of the respondent (1) in operating its cars through a snowshed which was of insufficient height to
In order to be advised more fully upon the question of negligence charged against the appellant, it is necessary to examine the facts presented in the opinion of this court in connection with the additional facts as shown by the abstract on file. It appears from the testimony of the plaintiff that he worked for the defendant company 10 or 11 months in 1888, as foreman of a freight train running from Wadsworth to Truckee, and had gone over the road west of Truckee twice on a passenger train, and knew there were snowsheds within a mile or two west of Truckee, and plenty of them between Truckee and Summit,-which places were 12 miles apart. At the time of the accident, appellant had passed through one snowshed. It also appears that there were 19 stock cars, 3 freight cars, and a caboose, in the train going west. Eight, loaded cattle cars were next to the engine, the 11 loaded sheep cars behind them, and next came the three refrig-:, orator cars and the caboose. These refrigerator cars are not shown to have been loaded. When this train started from Truckee, Nelson, Spencer, and the appellant went-through the sheep cars next to the engine, east, and passed
In viewing this question, it is proper for the court to take into consideration the (history and geography of the country, the monuments constructed by nature, and the rugged formation of the Sierra Nevada mountains near where this accident occurred. Negligence consists in the want of that ordinary, reasonable care, which would be exercised by a person or ordinary prudence, under all the existing circumstances, in view of the probable danger and injury. So 'ordinary care is due precaution against a danger likely to happen, and reasonably to be anticipated. Or, as Mr. Justice Swayne defines it in Railroad Co. v. Jones, 95 U. S. 439: “Negligence is the failure to do What a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what iswch a person, under the existing circumstances, would not have done. T.he essence of the fault may lie in omission or 'commission.” The law does not impose impracticable rules of duty, but is satisfied with what is reasonably fair under the circumstances. While the negligence of a railroad company may be the cause of an injury, yet if the injured party was careless himself; if his want of attention and care for his own safety contributed to cause the injury of which he complains, —he cannot recover. Justice Miller, in Cunningham v. Railroad Co., 5 McCrary 471, 17 Fed. 882, carries the rule still further, and says: “For although the railroad company’s negligence may be a cause, and probably a principal cause of this man’s loss of life, yet, if he was so careless himself, — if his want of attention to his own safety contributed in any small degree to his death,— the railway company is not liable.” In Goodwin v. Railroad Co., 84 Me. 203, 24 Atl. 816, the court held, in a sim
“Where, therefore, from the whole evidence on which the case rests, it appears that the .plaintiff was wanting in prudence and care, or that he directly or proximately contributed to cause the injury he received, or that by the use of ordinary care and prudence he could have avoided the injury, the court, it is held, may rightfully instruct the jury, as a mater of law, that the plaintiff cannot recover, even though the defendant wias guilty of negligence. And while the court should not invade the province of ¡the jury, .and pass upon the weight of the evidence, yet, where the jury have made a clear and unquestionable mistake of fact, or prejudices of the jury have so clearly controlled their mind as to find a verdict where there is no evidence upon which to base it, the appellate court has the right, and it is its duty, to rectify the wrong done, and to set aside the judgment upon which such erroneous judgment is based, and grant a new trial. Where there is no conflict of evidence whatever upon the questions of fact presented, and such evidence falls short of making a prima facie case for the plaintiff, it is then the duty of the trial court to take the case from the jury. The ease, however; should he a clear one, to justify the court in exercising this responsibility; but when the necessity exists the court should not shrink from the
The passenger is bonnd to conduct himself, while upon the train, in a prudent manner; and if he unnecessarily or negligently expose himself to danger, and as a consequence is injured, he cannot recover redress from the company, although it wrns negligent, because in such a case the fault was mutual. Brennan v. Railroad Co., 45 Conn. 284; Willis v. Railroad Co., 34 N. Y. 670; 2 Wood,
Lnder the facts stated, was it negligent for the defendant to construct its snowsheds so as not to admit the plaintiff to ride on the tops of the refrigerator cars? And was it also negligent to switch the refrigerator cars between the caboose and the sheep cars? We will consider these questions together. The court, in its opinion, does not find the respondent negligent in the construction of the sheds, but holds that it is inclined to that view. In this I cannot agree. One knowing the danger from the negligence of another, and who understands and appreciates t’he risk therefrom, and who voluntarily exposes himself to it, is precluded from recovery for any injury
But the appellant contends that he has proyed a custom among stockmen to ride on the tops of the cars while having care of stock. Let us see if such proof is shown to apply to this mountainous country, when sheep are being shipped, and, if it was the custom, then should the respondent still be held liable. Nelson testifies that “he knew the custom of stockmen, shipping cattle and sheep, about going into cars and attending to them, and walking back over the tops of the cars to reach the caboose over that road.” “It was in handling sheep that we got on the cars after attending to them.” “It is customary, in handling sheep, to go through the cars.” “The ears are fixed so you can go through the end doors.” “The country where this snowshed is built is on the side of a mountain.” “I never made a careful examination of this sno wshed, but have looked at it as I passed on stock and passenger trains, and that is all I know about it.” “They have wind and snow storms in that region, and the snow is very deep.” Plaintiff testified that “he knew the custom of the company in permitting men in charge of sheep and Gattle to attend them, and walk back over the tops of the cars to the caboose.” “In shipping sheep, we always have the cars so we can pass through them,
The appellant was a passenger of mature years and understanding. He had worked within two or three miles of the snowshed in question for several months. He was a railroad man by occupation. He knew the location of these sheds, and that there were plenty of them in that locality. Helmew,or should be held to know, that the next station was but seven or eight miles distant. He knew the refrigerator cars were between him and the
Respondents allege that the refrigerator cars were empty. The evidence does not show they were loaded cars, or were not empty. If this were so, or if they were lighter cars, as they appear to have been, common prudence for the safety of passengers and trains would seem to dictate that in going up and down the mountain sides, upon a curved and winding track, in such a country as this, the heavily loaded cattle and sheep cars should bo placed next to the engine, and the light or empty cars placed in the rear, for safe handling. The managers of lines of railroads could not safely conduct their business and run their trains if it must be left to the demand or judgment of every inexperienced shipper over their lines where their product must be carried in their trains, at a risk on the part of the company of being held negligent for the failure to observe or decline such demand. Under the circumstances, there was no negligence in placing the refrigerator cars in the rear of the train. It would have been negligence on the part of the company to place the light cars next to the engine. A reckless or inexperienced passenger should not be allowed to control or manage the manner of making up a train, in opposition to the skilled and experienced judgment of the officers and employés of the company. While railroad companies should be 'held to a strict accounting for their negligence which causes injury to their employés without their fault, I cannot concur in the opinion of this court that the same rule should apply to passengers, such as the appellant was, when they assume risks to life and limb, and recklessly walk on the tops of freight cars in passing through a mountain country, at such a time and under such circumstances as this record presents. I am of the opinion, also, that the snowshed, in the locality shown by the