Ormsbee v. Boston and Providence Railroad Corporation.

Wanless v. North Eastern R. Co., L. R., 6 Q. B. 481, affirmed in Directors of North Eastern R. Co. v. Wanless, L. R., 7 H. L. 12, in which a verdict for the plaintiff was sustained, is quite like the present case, but the question of contributory negligence was not raised in it. KELLY, C. B., says: "I am far from saying that these circumstances which appear to have been proved at the trial were not evidence of contributory negligence; for I cannot say that any one crossing a railway, though it might have been intimated to him that he may cross in safety, still when he is upon the railway, ought not to look upon one side and upon the other to see whether a train is approaching. But we are not called upon to determine any question of contributory negligence."

This review of the cases is sufficient to show the rule to be uniform and unquestionable, that a traveller in crossing a railroad, even in the absence of ordinary signals, must look up and down the track, except where he is unable to do so, or where, as a passenger or otherwise, he has an assurance of safety from the company which excuses him. Indeed it is quite unusual to find so little difference in so many cases, and it must be for the reason that the rule is founded, not in opinion or judgment, but in common prudence and experience to such an extent that courts can declare it as law.

The question therefore which is decisive of this case is whether Ormsbee was excused from compliance with this rule on account of the diversion of his attention from the north by apprehension of danger from the engine backing from the south.

Clearly not. To say that he was would be to hold that danger. apprehended in one direction excuses a person from looking to the other, which has never been claimed in any case. If danger

threatens on one hand, a traveller on foot at least can stop until he sees whether there is safety on the other, and if he does not do this he takes the risk upon himself. It is no harsh rule that a man should turn his head to look for a train that may be in plain sight.

With reference to the manifest visible peril Ormsbee took no precaution at all, and as this precludes the plaintiff's recovery, whatever may have been the defendant's omission, it should have been so stated to the jury.

It is unnecessary to consider the exceptions as to damages, as a new trial must be granted for the reason given.

Petition granted.

Ormsbee v. Boston and Providence Railroad Corporation.

NOTE BY THE REPORTER.- A "flying switch" is negligent. French v. Taunton, etc., R. Co., 116 Mass. 537; Brown v. N. Y., etc., R. Co., 32 N. Y. 597; Hinckley v. Cape Cod R. Co., 120 Mass. 257; Chicago, etc., R. Co. v. Garvey, 58 Ill. 83; Butler v. Milwaukee, etc., R. Co., 28 Wis. 487. These are all opposed to the principal case, and hold that contributory negligence in these circumstances is a question for the jury. The question is well discussed in the case last cited above:

"The question of contributory negligence on the part of the deceased, or of the evidence upon this point as to which the jury have found there was no negligence, is, as already observed, one of much more difficulty. The deceased was standing by the head of his horse as the engine and first half of the train passed the crossing, and in plain sight of the last half, with which he subsequently collided; that is, there was nothing to obstruct his vision, had he cast his eyes in that direction. Just as the engine and that part of the train passed the crossing and went out of view east of it, the horse becoming frightened, probably at some object near the team which drove up - broke loose from the post to which he was hitched, and struggling and jumping to free himself from the deceased, who held him by the head, both were conducted, or propelled as it were, along the street to the crossing, where they came in contact with the foremost of the detached cars, just as that portion of the train reached the crossing, and the deceased fell or was drawn under and killed. If as contended for the defendant, the deceased saw that part of the train, as he might have done, and knew its approach, and yet voluntarily and rashly went upon the crossing, or suffered himself to be drawn there in his effort to prevent the escape of the horse, it seems clear that it was negligence on his part, which should prevent a recovery. The court below distinctly so charged, but the jury found in the negative, or that he did not see and had no knowledge of the approach of the cars, and that there was no want of reasonable care on his part in not knowing or ascertaining their approach. If the opposite had been the finding of the jury, it is very improbable that the verdict could have been disturbed. But they having found as they did, the question now is, whether the verdict must not stand. The deceased stood by the horse, facing the railway track, and distant about seventy-seven feet from the place of collision. He was upon the side of the horse opposite that whence the cars were approaching. The head and neck of the horse might possibly have partially obstructed his view. His attention was doubtless fixed upon the locomotive and that part of the train which passed directly before him. The other section of the train was, as we have seen, at that time, from fifteen to twenty rods in the rear, and some distance from the crossing. Had that section followed the other so closely that the eye, in losing sight of the latter, would naturally have caught sight of or been directed to the former, then it might reasonably be presumed that the deceased must have seen and known of its approach. But at the distance by which the two parts were separated, the presumption seems now hardly reasonable, if indeed it be not the other way. And when it is remembered that just as the first section passed in front of him the horse started, and the struggle commenced in which the unfortunate man lost his life, the presumption is very greatly weakened that

Ormsbee v. Boston and Providence Railroad Corporation.

he ever knew or was conscious for a moment of the approach of other cars until he was struck by them, and it was too late for him to save himself or guard against the calamity. Upon this point therefore, although not free from doubt, we are inclined to express our satisfaction with the verdict of the jury, and to say upon the evidence, as they have said, that the deceased had no knowledge of the danger to which he was exposed. And this conclusion is further supported by that universal love of life and strong natural impulse to save one's self in the face of a known danger, which must have prompted the deceased to abandon the horse and not to offer himself a useless and certain sacrifice. At all events, the question was peculiarly one of fact, to be found by the jury from all the circumstances; and unless we can say there was no evidence and nothing in the circumstances proved to uphold their finding, the verdict must stand. Langhoff v. M. & P. du C. Ry. Co., 19 Wis. 497; Shear. & Redf. Neg., § 11.

And upon the other branch of the question, whether the deceased was guilty of negligence in not having known or ascertained the approach of the cars, it seems equally difficult to say that the verdict was incorrect or should be set aside. It would have occurred to but very few, and it might with safety be affirmed, to no ordinarily cautious and prudent man, under the circumstances, to have looked, if time and opportunity had permitted, for the approach of cars as those cars were approaching. The deceased, not knowing and having no reason to anticipate their approach, was acting as most men of ordinary care and prudence would act in like situation. He was endeavoring to prevent the escape of his horse, so long as there was hope in such effort, and but for the unforeseen and unexpected approach of the cars, through the negligence of the railway company, it does not appear that he was incurring any especial risk in so doing. He had just seen the train pass, drawn by the engine in the usual course, and naturally supposed he might go upon the track with safety. Absorbed, too, in his efforts to stop the horse, he doubtless had no time to look for other cars moving along the track. No man would have thought of doing so. He was suddenly overtaken by a misfortune, an accident, in the breaking away of his horse, and was prudently endeavoring to avoid the consequences of it. Negligence implies some act or conduct in itself wrongful, under the circumthe wrongful doing or omission to do that which reason and prudence would suggest in the then situation of the party. Situated as the deceased was, it was not wrongful in him to make every effort he was capable of to stop the horse, consistent with a proper regard for his own safety; and if from all circumstances as they appeared to him, and as he might reasonably suppose them to be, he believed he could do so, it was not negligence to make the attempt, even though believing he might possibly not succeed, or might receive an injury from that cause alone. That risk he took, but not the risk of injury from the negligence of others, of which he had no knowledge, and which he had no adequate means of ascertaining or guarding against. The rule of law in respect to the use of care, the absence of which constitutes negligence, is that it must be reasonable care, adapted to the circumstances of the case. Todd v. Railroad Co., 7 Allen, 207; Goodale v. Worcester, etc., 102 Mass. 406. So far as the deceased was concerned, therefore, the collision was purely accidental. VOL. LI 46

stances

Ormsbee v. Boston and Providence Railroad Corporation.

A sudden change of circumstances, an emergency which to him was inevitable, prevented his seeing the approaching cars as others around him could do. It was mere misadventure or unavoidable accident on his part, and negligence on the part of the company which produced the injury. It is for the protection of those who thus, by mischance or otherwise, and without fault on their part, are unable to protect themselves, that the obligation of care and diligence is imposed by the law on others not so disabled. If a traveller by carriage, upon a stormy day, when it is customary to have the carriage top extended, and health and comfort required it to be, should approach a crossing as Butler did, and seeing the engine with a large number of cars attached pass by, should drive upon the track and be caught or struck and injured as Butler was, could negligence be imputed to such traveller so as to defeat an action for the damages sustained? It must we think to say the least of it, be very doubtful whether it could be, and should a jury return a verdict against the company, whether such verdict could be set aside. But the present is a much stronger case. Here the deceased was governed by no motives of comfort or convenience, and not by any general custom or habit of people, in not looking out for the approach of other cars. A paramount and unyielding necessity forbade and restrained him. From the moment the horse started he could not use his eyes, if he would, for his own protection. It was his misfortune, but not his fault that this was so."

In French v. Taunton Branch Railroad, 116 Mass. 537, the plaintiff did not look, and gave as a reason that she did not suppose that one train would follow so closely upon another." Held, a proper question for the jury.

In Haley v. N. Y. Cent. R. Co., 31 Hun, 84, the doctrine of the principal case was laid down, following Haskin v. N. Y. Cent., etc., R. Co., 65 Barb. 129, affirmed without opinion, 56 N. Y. 608.

But the rule requiring a traveller on a highway crossing a railroad track to use his eyes and ears to ascertain whether a train is approaching, does not apply to persons crossing a track at a station to get on the cars. Terry v. Jewett, 78 N. Y. 338.

As a passenger train was approaching a railroad station from the east, the engineer of a freight train, approaching from the west upon a track between that on which the passenger train was and the depot, supposing he could pass the station before the passenger train could reach it and make a stop, ran his train past just after the other train reached the depot, at a speed of from six to eight miles an hour, cutting off a passage from the depot to said passenger train. The evidence tended to show that on no previous occasion had a freight train so passed the station, and it was not shown that any notice was given of its approach. J., plaintiff's intestate, was at the station depot for the purpose of taking the passenger train; that train, according to the testimony of one of plaintiff's witnesses, came to a stand-still, and then started up a little, when J., walking rapidly toward it across the intervening track, without looking to see if a train was approaching thereon, was struck by the engine of the freight train and killed. In an action to recover damages for the death, held, that the act of the engineer was culpable and gross negligence; that it was not negligence, as matter of law, for J. to attempt to cross the track without looking

Ormsbee v. Boston and Providence Railroad Corporation.

but that the question of contributory negligence was one of fact for the jury. Id.

In Hinckley v. Cape Cod Railroad Co., 120 Mass. 257, there was evidence that the railroad, running north and south, crossed a highway at grade near the railroad station; that a short distance north of the highway a side track branched off and crossed the highway a little easterly of the main track, and led into but not through the station; that the station was south of the highway; that the pathway, used by persons going to the station from the highway on the east side, crossed the side track obliquely, the distance to the platform being one hundred and fifty-seven feet; that at the point where the path left the highway one could see up the track to the north for about one hundred and fifty feet, and from the track itself for half a mile; that the intestate was going to the station to see his daughter off by a train which was then due; that the ground was frozen and slippery; that as he approached the railroad from the east, a freight train was coming from the north, which kept upon the main track, except a single car, which was switched upon the side track; that as he was crossing the side track by the usual path, he was struck by the detached car, which was moving rapidly, and without any signal or warning. Held, that on this evidence the jury would not be warranted in finding that the plain. tiff's intestate was in the exercise of due care. GRAY, C. J., and MORTON, J., dissenting. The court distinguish and approve the Craig case, 118 Mass. 431, and the French case, 116 Mass. 537, but said:

Here the whole of the plaintiff's case is before us. It presents but a partial disclosure of the facts attending the injury. It is shown that Hinckley was struck by the car of the defendant, but the circumstances under which he was thus struck, or under which he entered upon the defendant's track are not developed, and there is nothing in the evidence which tends to show due care or the want of it on his part. That there should be some evidence of such care is essential to the plaintiff's case."

GRAY, C. J., dissenting, said: "In our judgment, the case is not distinguishable in its facts, or in the rule which should govern it, from those of French v. Taunton Branch Railroad, 116 Mass. 537, and Craig v. New York & New Haven Railroad, 118 Mass. 431; and nothing was shown in either of those cases which a jury might not properly infer from the evidence in this case, apply. ing to it their knowledge of the habits of thought and mind and the natural instincts of men.

"The case appears to us to fall within the general rule stated in Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, 212, that' ordinarily' the question whether the plaintiff has proved due care on his own part is to be settled as a question of fact in each case, as it arises upon a consideration of all the circumstances disclosed, in connection with the ordinary conduct and motives of men, applying as the measure of ordinary care the rule that it must be such care as men of common prudence usually exercise in positions of like exposure and danger. When the circumstances under which the plaintiff acts are complicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, it is plainly to be submitted to the jury. What is ordinary care in such cases, even though the facts are undisputed, is pecu