1. Negligence may consist in either failing to do what, under
the circumstances, a reasonable and prudent man would ordinarily
have done, or in doing what he would not have done.
2. A. was one of a party of men employed by a railroad company
in constructing and repairing its roadway. They were usually
conveyed by the company to and from the place where their services
were required, and a boxcar was assigned to their use. Although on
several occasions forbidden to do so, and warned of the danger, A.,
on returning from work one evening, rode on the pilot or bumper of
the locomotive, when the train, in passing through a tunnel,
collided with cars standing on the track, and he was injured. There
was ample room for him in the boxcar. All in it were unhurt.
1. That as A. would not have been injured had he used ordinary
care and caution, he is not entitled to recover against the
2. That the knowledge, assent, or direction of the agents of the
company as to what he did at the time in question is immaterial.
The company, although bound to a high degree of care, did not
insure his safety.
The facts are fully stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The defendant in error was the plaintiff in the court below.
Upon the trial there, he gave evidence to the following effect:
Page 95 U. S. 440
For several months prior to the 12th of November, 1872, he was
in the service of the company as a day laborer. He was one of a
party of men employed in constructing and keeping in repair the
roadway of the defendant. It was usual for the defendant to convey
them to and from their place of work. Sometimes a car was used for
this purpose; at others, only a locomotive and tender were
provided. It was common, whether a car was provided or not, for
some of the men to ride on the pilot or bumper in front of the
locomotive. This was done with the approval of Van Ness, who was in
charge of the laborers when at work, and the conductor of the train
which carried them both ways. The plaintiff had no connection with
the train. On the 12th of November before mentioned, the party of
laborers, including the plaintiff, under the direction of Van Ness,
were employed on the west side of the eastern branch of the
Potomac, near where the defendant's road crosses that stream, in
filling flat cars with dirt and unloading them at an adjacent
point. The train that evening consisted of a locomotive, tender,
and boxcar. When the party was about to leave on their return that
evening, the plaintiff was told by Van Ness to jump on anywhere;
that they were behind time, and must hurry.
The plaintiff was riding on the pilot of the locomotive, and
while there the train ran into certain cars belonging to the
defendant and loaded with ties. These cars had become detached from
another train of cars, and were standing on the track in the
Virginia avenue tunnel. The accident was the result of negligence
on the part of the defendant. Thereby one of the plaintiff's legs
was severed from his body, and the other one severely injured.
Nobody else was hurt, except two other persons, one riding on the
pilot with the plaintiff, and the other one on the cars standing in
The defendant then gave evidence tending to prove as follows:
about six weeks or two months before the accident, a boxcar had
been assigned to the construction train with which the plaintiff
was employed. The car was used thereafter every day. About the time
it was first used, and on several occasions before the accident,
Van Ness notified the laborers that they must ride in the car and
not on the engine; and the plaintiff in
Page 95 U. S. 441
particular, on several occasions not long before the disaster,
was forbidden to ride on the pilot, both by Van Ness and the
engineer in charge of the locomotive. The plaintiff was on the
pilot at the time of the accident, without the knowledge of any
agent of the defendant. There was plenty of room for the plaintiff
in the boxcar, which was open. If he had been anywhere but on the
pilot he would not have been injured. The collision was not brought
about by any negligence of the defendant's agents, but was
unavoidable. The defendant's agents in charge of the two trains,
and the watchman in the tunnel, were competent men.
The plaintiff, in rebuttal, gave evidence tending to show that
sometimes the boxcar was locked when there was no other car
attached to the train, and that the men were allowed by the
conductor and engineer to ride on the engine, and that on the
evening of the accident the engineer in charge of the locomotive
knew that the plaintiff was on the pilot.
The evidence being closed, the defendant's counsel asked the
court to instruct the jury as follows:
"If the jury find from the evidence that the plaintiff knew the
boxcar was the proper place for him, and if he knew his position on
the pilot of the engine was a dangerous one, then they will render
a verdict for the defendant, whether they find that its agents
allowed the plaintiff to ride on the pilot or not."
This instruction was refused, and the defendant's counsel
Three questions arise upon the record:
1. The exception touching the admission of evidence.
2. As to the application of the rule relative to injuries
received by one servant by reason of the negligence of another
servant, both being at the time engaged in the same service of a
3. As to contributory negligence on the part of the
We pass by the first two without remark. We have not found it
necessary to consider them. In our view, the point presented by the
third is sufficient to dispose of the case.
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 such a person under
Page 95 U. S. 442
the existing circumstances would not have done. The essence of
the fault may lie in omission or commission. The duty is dictated
and measured by the exigencies of the occasion. See
Wharton on Negligence, sec. 1, and notes.
One who by his negligence has brought an injury upon himself
cannot recover damages for it. Such is the rule of the civil and of
the common law. A plaintiff in such cases is entitled to no relief.
But where the defendant has been guilty of negligence also, in the
same connection, the result depends upon the facts. The question in
such cases is:
1. Whether the damage was occasioned entirely by the negligence
or improper conduct of the defendant; or
2. Whether the plaintiff himself so far contributed to the
misfortune by his own negligence or want of ordinary care and
caution, that but for such negligence or want of care and caution
on his part, the misfortune would not have happened.
In the former case, the plaintiff is entitled to recover. In the
latter, he is not. Tuff v. Warman,
5 C.B.N.S. 573;
Butterfield v. Forrester,
11 East, 58; Bridge v. Grand
Junction Railroad Co., 3 M. & W. 244; Davis v. Mann, 10
546; Clayards v. Dethick,
12 Q.B. 439;
Van Lien v. Scoville Manufacturing Co.,
14 Abb. (N.Y.)
Pr.N.S. 74; Ince v. East Boston Ferry Co.,
It remains to apply these tests to the case before us. The facts
with respect to the cars left in the tunnel are not fully disclosed
in the record. It is not shown when they were left there, how long
they had been there, when it was intended to remove them, nor why
they had not been removed before. It does appear that there was a
watchman at the tunnel, and that he and the conductor of the train
from which they were left, and the conductor of the train which
carried the plaintiff, were all well selected, and competent for
their places. For the purposes of this case, we assume that the
defendant was guilty of negligence.
The plaintiff had been warned against riding on the pilot, and
forbidden to do so. It was next to the cowcatcher, and obviously a
place of peril, especially in case of collision. There was room for
him in the boxcar. He should have taken his place there. He could
have gone into the boxcar in as little,
Page 95 U. S. 443
if not less, time than it took to climb to the pilot. The
knowledge, assent, or direction of the company's agents as to what
he did is immaterial. If told to get on anywhere, that the train
was late, and that he must hurry, this was no justification for
taking such a risk. As well might he have obeyed a suggestion to
ride on the cow-catcher, or put himself on the track before the
advancing wheels of the locomotive. The company, though bound to a
high degree of care, did not insure his safety. He was not an
infant nor non compos.
The liability of the company was
conditioned upon the exercise of reasonable and proper care and
caution on his part. Without the latter, the former could not
arise. He and another who rode beside him were the only person hurt
upon the train. All those in the boxcar, where he should have been,
were uninjured. He would have escaped also if he had been there.
His injury was due to his own recklessness and folly. He was
himself the author of his misfortune. This is shown with as near an
approach to a demonstration as any thing short of mathematics will
permit. The case is thus clearly brought within the second of the
predicates of mutual negligence we have laid down. Hickey v.
Boston & Lowell Railroad Co.,
14 Allen (Mass.) 429;
Todd v. Old Colony Railroad Co.,
207; Gavett v. M. & L.
16 Gray (Mass.) 501; Lucas v. N. B. & T.
64; Ward v. Railroad
2 Abb. (N.Y.) Pr.N.S. 411; Galena & Chicago
Union Railroad Co. v. Yarwood,
15 Ill. 468; Dogget v.
Illinois Central Railroad Co.,
34 Ia. 284.
The plaintiff was not entitled to recover. It follows that the
court erred in refusing the instruction asked upon this subject. If
the company had prayed the court to direct the jury to return a
verdict for the defendant, it would have been the duty of the court
to give such direction, and error to refuse. Gavett v. M. &
L. Railroad Co., supra; 77 U. S. State
10 Wall. 604; Pleasants v.
22 id. 121.
Judgment reversed, and the cause remanded with directions to
issue a venire de novo, and to proceed in conformity with this