In an action by an employs of a railroad company against the
company to recover damages for personal injuries received by reason
of the negligence of the company, in order to determine whether the
employ, by recklessly exposing himself to peril, has failed to
exercise the care for his personal safety that might reasonably be
expected, and has thus by his own negligence contributed to causing
the accident, regard must always be had to the circumstances of the
case and the exigencies of his position, and the decision of this
question ought not to be withheld from the jury unless the
evidence, after giving the plaintiff the benefit of every inference
to be fairly drawn from it, so conclusively establishes
contributory negligence that the court would be compelled, in the
exercise of a sound judicial discretion, to set aside any verdict
returned in his favor.
Page 128 U. S. 92
This was an action to recover damages for personal injuries
sustained by the plaintiff while in the discharge of his duties as
an employee of the Northern Central Railway Company. It was based
upon the alleged negligence of the company in not providing
suitable and safe appliances for the cars on which the plaintiff
was assigned for duty. At the conclusion of the evidence introduced
in his behalf, the court directed a verdict for the company.
It was in evidence that at midnight in the month of February, a
train of freight cars belonging to or being operated by the
defendant left Marysville, on its line of road, for the City of
Baltimore. The rear car was the caboose; the third car from the
caboose was an ordinary "house-car;" the fourth one was laden with
lumber. The car upon which the plaintiff was required to take
position while the train was in motion was about the eighth or
tenth one from the caboose. His principal duty was to "brake" the
train from that car back to the caboose. When the train, moving
southward, was going into York Haven, twenty miles from Marysville,
the plaintiff, while passing over it for the purpose of putting
down the brakes, discovered that the third car from the caboose had
one step off at the end nearest the engine, and immediately called
the attention of the conductor to the fact. The conductor promised
to drop that car at the coal yard or junction beyond them in the
direction of Baltimore if, upon looking at his manifests, he found
that it did not contain perishable freight. When the train stopped
about four or five o'clock in the morning at Coldfelters, some
miles north of the coal yard or junction, the plaintiff went to the
caboose to eat his breakfast and warm himself. It was snowing,
freezing, and sleeting. One of the witnesses testified that
"it was a fearful cold night, raining and sleeting; the train
was covered with ice and snow; . . . it was most bitter cold; the
rain was freezing as it fell; a regular winter's storm."
While the plaintiff was in the caboose eating his breakfast, the
train moved off. He immediately started for his post, leaving
behind his coat and gloves. Upon reaching the south end of the
third car from the caboose, he attempted to let himself down from
it in order
Page 128 U. S. 93
to reach the next car ahead of him, which was the lumber car,
and pass over the latter to the one on which he usually stood while
the train was in motion. At the moment he let himself down from the
top of the house car, he forgot that one of its steps was missing,
and, before realizing the danger of his position and without being
able then to lift himself back to the top of the car, he fell below
upon the railroad track and between the wheels of the moving train,
causing him to lose both legs. The plaintiff testified that if at
the moment of letting himself down from the top of the car, he had
recalled the fact that one of its steps was gone, he might have
pulled himself back with his hands or have "slid down" on the brake
rod, for he had before climbed up and down by holding that rod with
one hand and putting his foot against it and pulling himself up
until he touched the running board. He testified that he could not
remember how his mind was occupied at the tune; "only going to my
post, my mind was on that; going where I had the right to be."
Again:
"When the accident happened, I was going to my place on the
train. I had no other duty on the top of the cars as the train was
moving off, unless the engineer calls for a signal, and generally
he does do that when the train is moving off. There is occasion for
it in all places where the train starts or stops, only in cities,
where we aren't allowed to blow them. We are required to notice the
train when it is running to see that it is all going; the train
might start and go one hundred yards and then break loose."
This was, in substance, the case made by the plaintiff's
evidence.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 128 U. S. 94
The circuit court proceeded upon the ground that contributory
negligence upon the part of the plaintiff was so conclusively
established that it would have been compelled, in the exercise of a
sound judicial discretion, to set aside any verdict returned in his
favor. If the evidence, giving the plaintiff the benefit of every
inference to be fairly drawn from it, sustained this view, then the
direction to find for the defendant was proper.
Phoenix
Insurance Co. v. Doster, 106 U. S. 30,
106 U. S. 32;
Randall v. Baltimore & Ohio Railroad, 109 U.
S. 478,
109 U. S. 482;
Anderson County v. Beal, 113 U. S. 227,
113 U. S. 241;
Goodlett v. Louisville & Nashville Railroad,
122 U. S. 391,
122 U. S.
411.
But we are of opinion that the question of contributory
negligence should have been submitted to the jury. It cannot be
said that the plaintiff was guilty of contributory negligence in
staying upon the train in the capacity of brakeman after observing
that a step was missing from one of the cars over which he might
pass while discharging his duties. An employee upon a railroad
train likely to meet other trains owes it to the public, as well as
to his employer, not to abandon his post unnecessarily. Besides,
the danger arising from the defective car was not so imminent as to
subject him to the charge of recklessness in remaining at his post
under the conductor's assurance that the car should be removed from
the train when it reached the coal yard or junction if, upon
examining his manifests, he found that it did not contain
perishable freight.
Hough v. Railroad Co., 100
U. S. 224;
District of Columbia v. McElligott,
117 U. S. 621,
117 U. S.
631.
But it is said that the efficient proximate cause of the injury
to the plaintiff was his use of the defective appliances at the end
of the car from which he fell when he knew, and at the moment of
letting himself down from that car, should not have forgotten, as
he said he did, that one of its steps was missing. It is
undoubtedly the law that an employee is guilty of contributory
negligence which will defeat his right to recover for injuries
sustained in the course of his employment where such injuries
substantially resulted from dangers so obvious and threatening that
a reasonable prudent man, under similar circumstances, would have
avoided them if in his power
Page 128 U. S. 95
to do so. He will be deemed in such case to have assumed the
risks involved in such heedless exposure of himself to danger.
Hough v. Railroad Co., District of Columbia v. McElligott,
and
Goodlett v. Railroad Co., above cited;
Railroad
Co. v. Herbert, 116 U. S. 642. But
in determining whether an employee has recklessly exposed himself
to peril or failed to exercise the care for his personal safety
that might reasonably be expected, regard must always be had to the
exigencies of his position -- indeed, to all the circumstances of
the particular occasion. In the case before us, the jury may not
unreasonably have inferred from the evidence that while the
plaintiff was passing along the tops of the cars for the purpose of
reaching his post, he was so blinded or confused by the darkness,
snow, and rain or so affected by the severe cold that he failed to
observe, in time to protect himself, that the car from which he
attempted to let himself down was the identical one which, during
the previous part of the night, he had discovered to be without its
full complement of steps. While a proper regard for his own
personal safety and his duty to his employer required that he
should bear in mind, while passing over the cars to his station,
that one of them was defective in its appointments, it was also his
duty to reach his post at the earliest practicable moment, for not
only might the safety of the moving train have depended upon the
brakemen's being at their posts, but the engineer was entitled to
know, as the train moved off, by signals from the brakemen, if
necessary, that none of the cars constituting the train had become
detached. If it be suggested that the plaintiff ought not to have
left his post and gone to the caboose when the train stopped at
Coldfelters, the answer furnished by the proof is that he was
justified in so doing by usage and by the extraordinary severity of
the weather. And if his going back from the caboose was
characterized by such haste as interfered with a critical
examination of the cars as he passed over them, that may, in some
measure at least, have been due to the fact that the first notice
he had of the necessity of immediately returning to his post was
that the train was moving off.
Page 128 U. S. 96
Without further discussion of the evidence and without
intimating what ought to be the verdict upon the issue of
contributory negligence, we are of opinion that the court erred in
not submitting to the jury to determine whether the plaintiff in
forgetting, or not recalling at the precise moment, the fact that
the car from which he attempted to let himself down was the one
from which a step was missing, was in the exercise of the degree of
care and caution which was incumbent upon a man of ordinary
prudence in the same calling and under the circumstances in which
he was placed. If he was, then he was not guilty of contributory
negligence that would defeat his right of recovery.
Judgment is reversed and the case remanded with directions
to grant a new trial.
