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is the proper remedy.” “I have examined,” without further evidence that such negligence says the learned judge, “the leading cases caused the injury, and cast the onus on the cited by him (Collyer), and find that his doc- defendant to show in rebuttal that the plaintiff's trine is clearly sustained by the English author- own negligence contributed, or the injury was ities, and there is no case in this state, I appre- not caused by such neglect of duty on the part hend, which trenches upon it in the least.” See of the company. Howenstein v. Pacific R. R. Townsend v. Goewey, 19 Wend. 424; Musier Co., 55 Mo. 33; Owens v. H. & St. Jo. R. R. v. Trumpbour, 5 Wend. 274; and other cases Co., 58 Mo. 386. And here again, before the cited in Glover v. Tuck. In Bagley v. Smith, ink with which this doctrine is announced is 10 N. Y. 489, it was held that an action would dry on the paper, the same court declares that, lie upon a covenant contained in partnership although the failure of the company to give articles; and, in Wills v. Simmonds, 8 Hun. the proper signal on approaching a road-cross189, that, although the partnership relation ing is negligence per se, yet it must be shown may exist between the parties, the court has that the injury was the result of such neglijurisdiction to entertain a suit at law brought gence; that is, in addition to proving such by one against another partner, where the ac- negligence, and that the animal was injured tion involved an inquiry only with respect to the crossing, the plaintiff must prove that the the damages that the plaintiff sustained be- injury was caused by such negligence, either cause of an alleged breach of the co-partner- by direct evidence or by proving facts and ship agreement by the defendant.

In Paine v. circumstances from which it may be fairly and Thacher, 25 Wend. 450, the court held that an rationally determined; and, in the absence of action would lie by one partner against another such evidence, the plaintiff can not recover. upon an express promise to pay a certain share Holman v. C. R. I. & P. R. R. Co., 62 Mo. out of his partnership profits for extra services. 562; Stoneman v. A. & P. R. R. Co., 58 Mo. These cases establish with clearness the right 503; Karle v. K. C., St. Jo. & C. B. R. R. Co., of one partner to maintain an action for any 55 Mo. 476. See also Harlan v. St. L., K. C. breach, on the part of another partner, of the & N. R. R. Co., 64 Mo. 480; Fletcher v. A. contract which establishes the partnership re- & P. R. R. Co., 64 Mo. 484 ; Cordell v. N. Y. lation.

C. & H. R. R. R. Co., 64 N. Y. 535.

This is the true rule. The statute makes THE LIABILITY OF RAILROAD COMPANIES the company liable for damages sustained by IN MISSOURI FOR KILLING STOCK. II. reason of the failure to give such warning;

8. Failing to ring the bell or sound the whistle. hence, as in a suit under $ 43, the plaintiff -For negleating to ring the bell or sound the must show that the injury complained of was whistle before crossing any public road or caused by such failure, etc. If the plaintiff street, as required by the statute, the company relies upon the negligence of the company, in is liable to a penalty of $20, and for all dam- omitting to ring the bell or sound the whistle, ages which shall be sustained by any person by he must set it up in his petition or statement. reason of such neglect. i W. S. 310, $ 38. Meyer v. A. & P. R. R. Co., 64 Mo. 542.

It would probably be the duty of the com- Double damages can not be recovered in a suit pany to give timely warning when a train is founded on § 38. 55 Mo. 33; 54 Mo. 240; approaching a public crossing, but whether its 60 Mo. 567. Nor can interest be allowed on failure to do so would be negligence, in the the damages sustained. 64 Mo. 542; 63 Mo. absence of any statute requiring it, would de

99, 367. pend on the situation and circumstances con- 9. Negligence.-A railroad company is not nected with the crossing. 33 Ind. 335; Cordell liable for killing or injuring stock coming upon v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535. the track where the road is fenced, or where it But as the statute requires the company to is not bound to fence, unless such injury is signal the approach of a train before crossing caused by the negligence of the company or a public road, by ringing the bell or blowing its agents, and the onus is upon the plaintiff to the whistle, its failure to do so is held to be prove such negligence. McPheeters v. H. & negligence per se, and such negligence, with St. Jo. R. R. Co., 45 Mo. 22; Musick v. A. proof that stock was killed at the crossing, & P. R. R. Co., 57 Mo. 134; 60 Mo. 405. In make out a prima facie case for the plaintiff, view of the dangerous means and instruments employed in operating a railroad, the company and the defendant might have avoided the inis held to the exercise of proportionate skill jury by the exercise of reasonable care and and care to prevent the destruction of property prudence, he is not excused. 36 Mo. 351, or other injuries. 26 Mo. 441; 36 Mo. 351; 484 ; 40 Mo. 153, 506; 42 Mo. 79; 43 Mo. 28 Wis. 487.

380, 523; 45 Mo. 322; 27 Mo. 95; Hicks v. The performance of every duty enjoined by Pacific R. R. Co., 64 Mo. 430. statute, as making fences, road-crossings, cat- In a few cases the Supreme Court has gone tle-guards, erecting signals, ringing the bell, farther, and held that, although the plaintiff and sounding the whistle, is not the whole duty may have been guilty of negligence which conof a railroad company; its agents must use tributed directly to the accident, yet, if the such additional care to avoid injuring others as defendant could have prevented the injury by common prudence would dictate in the various the exercise of ordinary care, it is liable. conditions and circumstances in which they Brown v. H. & St. Jo. R. R. Co., 60 Mo. 461; may be acting, and a failure to do so is negli- Meyers v. R. I. & P. R. R. Co., 59 Mo. 223. gence, for which the company is responsible. There are other cases inclining to the same Hicks v. Pacific R. R. Co., 64 Mo. 430. On doctrine, though, upon careful examination of the other hand, a person of ordinary intelli- them, I am not prepared to say that they so gence is bound to know that a railroad cross- decide. Karle v. K. C., St. Jo. & C. B. R. R. ing over a public highway, where cars are likely Co., 55 Mo. 476; Isabel v. R. R. Co., 60 Mo. to pass and are frequently passing, is a place 475; 43 Mo. 380; 64 Mo. 430. But the law, of more than ordinary danger, and, before at- as laid down in Shearman & Redfield on Neglitempting to cross, it is his duty to stop and gence, chap. 3, $ 25, has been fully indorsed look both ways and listen for approaching by that court, which is, that where the plaintiff trains. 61 Penn. St. 361; 56 Penn. St. 280. has been guilty of negligence which proxiHe must, at least, use due care in looking for mately contributed to produce the injury, so the cars before he attempts to cross. 72 Penn. that, but for his concurring and co-operating St. 27; 47 N. Y. 400; 35 N. Y. 75; 55 Ill. fault the injury would not have happened, he 379; 29 Iowa, 55 ; 64 Mo. 480, 484. If he can not recover, except where the more proxisees a train, and determines to try the speed mate cause of the injury is the omission of the of his horses against that of the engine, he defendant, after becoming aware of the danger does it at his own peril. 29 N. Y. 315. Or to which the plaintiff is exposed, to use a if, on approaching a crossing with a team, he proper degree of care to avoid injuring him. does not avail himself of his sense of sight Karle v. K. C., St. Jo. & C. B. R. R. Co., 55. and hearing, when, by the proper exercise of Mo. 476 ; Maher v. A. & P. R. R. Co., 64 it, he could avoid a collision, he will be re- Mo. 267; '60 Mo. 475; Bell. R. R. Co. v. garded as unusually negligent, though the bell Hunter, 33 Ind. 335.

if he could hav, seen the cars, had he looked, in edge on the part of the defendant of plaintiff's time to avoid the injury, and did not, he is danger is deemed essential to the plaintiff's guilty of contributory negligence, and can not right to recover, while in the cases of Meyers recover. 40 Ill. 218; 39 N. Y. 358; 34 Iowa, and Brown, supra, it is overlooked or ignored. 153; 33 Ind. 335; 55 Penn. St. 396; 64 Mo. This doctrine is in harmony with the general 484, 480.

principle, that no one can hold another respon10. Where there is contributory negligence. - sible for an injury which he was equally instruIt is the general principle that, where there is mental in bringing about, or to which his own mutual fault or negligence contributing direct- fault or negligence directly contributed. When ly or proximately to the accident, neither party both parties are guilty of wrong or negligence,

31 Mo. 411; 34 Mo. 55 ; 40 Mo. but neither anticipates harm to another as the 131. But if the negligence of the injured result thereof, there should be no liability beparty was not the proximate cause of, or did tween them, and neither can be called upon to not contribute directly to the injury, the party repair the other's loss. To say that the dewhose fault was the direct and proximate cause fendant is liable notwithstanding the plaintiff's thereof would be liable. 45 Mo. 255. So, if

45 Mo. 255. So, if negligence, if, by the exercise of ordinary the plaintiff's negligence was slight or remote, care it could have avoided the injury, is, in

can recover.

effect, to hold it liable for an injury to which of negligence, or contributory negligence, deits negligence was only contributory. If, by pends on conflicting evidence, or inferences to the use of ordinary care on the part of the de- be deduced from a variety of circumstances, fendant, the injury could have been avoided, in regard to which there is room for fair differthen, but for the fault of the defendant it ences of opinion among intelligent men, it would not have happened; therefore the de- should be submitted to the jury under proper fendant caused the injury and must pay for instructions. In other words, ordinarily the it. But, if the plaintiff was negligent, the question of negligence is a mixed question of same theory will apply to his negligence, and law and fact, and should be submitted to the as he caused the injury, he should not recover. jury, under proper instructions, when there is Hence the principle that, where there is mutual any evidence from which it may be fairly and fault or contributory negligence, neither party rationally deduced. 50 Mo. 461; 55 Mo. 476, shall recover.

But if the defendant is aware 485; 64 Mo. 480, 484; 38 N. Y. 49, 440. of the plaintiff's danger, and could, by proper

(5.) Where the negligence of the defendant, care, avoid hurting him, and does not, his con- by which the plaintiff was injured, is estabduct would evince a willingness to inflict the

lished, and the plaintiff was not guilty of coninjury, or imply a disregard of consequences, tributory negligence on his part, the negligence and the plaintiff may recover, though he be a of a third person contributing to the injury trespasser, or be guilty of negligence contribu- furnishes no excuse for the negligence of the tory to the accident. Bell. R. R. Co. v. defendant, and no reason why he should not Hunter, 33 Ind. 335 ; 26 Ind. 76; 47 III. 408. respond in damages. Webster v. H. R. R. Co.,

What constitutes negligence, and whether it 38 N. Y. 260; 36 N. Y. 39; Robinson v. N. be proximate and contributory to a given re

Y, C. & H. R. R. R. Co., 66 N. Y. 11; Slater sult, depends so much upon the attending cir- v. Mersereau, 64 N. Y. 138. H. S. K. cumstances of the case and the peculiar notions of different judges as to the relative duties and

CONTRIBUTORY NEGLIGENCE. obligations of individuals, that much confusion

BALTIMORE & POTOMAC R. R. V.JONES. and contradiction exist in the reported cases,

Supreme Court of the United States, October Term and no general or universal rule can be laid

1877. down as the settled law of the land. The

PLAINTIFF, a laborer in the employ of defendant, following propositions, however, are deducible when about to leave the place where he was working, from the authorities, and may be considered as

on one of defendant's trains, was told by the person

superintending him, who was also conductor of the settled law:

train, to get on anywhere, as the train was in a hurry (1.) That a party seeking to recover for in- to leave. Plaintiff got on the pilot of the locomotive, juries occasioned by the negligence of another,

which was a dangerous place to ride. While on the

trip he was injured by a collision between the locomomust be shown to be himself free from negli- | tive and some other cars of defendant, caused by degence contributory to the injury complained fendant's negligence. The proper place for plaintiff to

ride was in a box-car on the train provided for the of, or, if not, that the defendant could have

employees; he bad been told previously to always ride avoided the injury by the exercise of ordinary there and bad been forbidden riding on the pilot of

the locomotive. No one of those in the box-car was care after becoming aware of plaintiff's danger.

injured, and plaintiff would not have been if he had (2.) That where the defendant's negligence ridden there. Held, that plaintiff was guilty of conwas the proximate cause of the injury, and the

tributory negligence and could not recover of the de

fendant for the injury. negligence of the plaintiff was only slight or remote and did not contribute directly to the

In error to the Supreme Court of the United

States for the District of Columbia. injury, he may recover.

Mr. Justice SWAYNE, delivered the opinion of (3.) A person attempting to cross a railroad,

the court: whether alone or with a team or with stock,

The defendant in error was the plaintiff in the must make use of his ordinary faculties to

court below. Upon the trial there he gave evidence ascertain if there is danger in the attempt, or to the following effect: For several months prior to he will be held guilty of negligence.

the 12th of November, 1872, he was in the service (4.) Where the facts are uncontroverted,

of the company as a day laborer. He was one of the

party of men employed in constructing and keepthe question whether they amount to negligence, ing in repair the roadway of the defendant. It or to contributory negligence, is one to be de- was usual for the defendant to convey them to and termined by the court; but when the question from their place of work. Sometimes a car was used for this purpose. At others, only a locomo- him, and if he knew his position on the pilot of the tive and tender were provided. It was common, engine was a dangerous one, then they will render a whether a car was provided or not, for some of the verdict for the defendant, whether they find that men to ride on the pilot or bumper in front of the its agents allowed the plaintiff to ride on the pilot locomotive. This was done with the approval of or not." The instruction was refused, and the Van Ness, who was in charge of the laborers when defendant's counsel excepted. at work, and the conductor of the train which Three questions arise upon the record: 1. The carried them both ways. The plaintiff had no exception touching the admission of evidence. 2. connection with the train. On the 12th of Novem- As to the application of the rule relative to injuries ber, before mentioned, the party of laborers, in- by one servant by reason of the negligence of ancluding the plaintiff, under the direction of Van other servant, both being at the time engaged in Ness, were employed on the west side of the eastern the same service of a common superior. 3. As to branch of the Potomac, near where the defend- the contributory negligence on the part of the ant's road crosses that stream, in filling flat-cars plaintiff. with dirt and unloading them at an adjacent point. We pass by the first two without remark. We The train that evening consisted of a locomotive, have not found it necessary to consider them. In tender, and box-car. When the party was about our view the point presented by the third is suffito leave on their return that evening, the plaintiff cient to dispose of the case. was told by Van Ness to jump on anywhere, that Negligence is failure to do what a reasonable they were behind time and must hurry. The and prudent person would ordinarily have done plaintiffwas riding on the pilot of the locomotive, under the circumstances of the situation, or doing and while there the train ran into certain cars be- what such a person under the existing circumlonging to the defendant and loaded with ties. stances would not have done. The essence of the These cars had become detached from another fault may lie in omission or commission. The duty train of cars, and were standing on the track in the is dictated and measured by the exigencies of the Virginia avenue tunnel. The accident was the re- occasion. See Wharton on Negligence, section 1 sult of negligence on the part of the defendant. and notes. One who by negligence has brought Thereby one of the plaintiff's legs was severed an injury upon himself, can not recover damages from his body and the other one severely injured. for it. Such is the rule of the civil and of the comNobody else was hurt, except two other persons, mon law. A plaintiff in such cases is entitled to one riding on the pilot with the plaintiff, and the no relief. But where the defendant has been other one on the cars standing in the tunnel. guilty of negligence also, in the same connection,

The defendant then gave evidence tending to the result depends upon the facts. The question prove as follows: About six weeks or two months in such cases is—1. Whether the damage was ocbefore the accident, a box-car had been assigned casioned entirely by the negligence or improper to the construction train with which the plaintiff conduct of the defendant; or 2, whether the plainwas employed. The car was used thereafter every tiff himself so far contributed to the misfortune by day. About the time it was first used, and on sev- his own negligence or want of ordinary care and eral occasions before the accident, Van Ness noti- caution, that, but for such negligence or want of fied the laborers that they must ride in the car care and caution on his part, the misfortune would and not on the engine, and the plaintiff in partic- not have happened. In the former case, the plainular, on several occasions not long before the dis- tiff is entitled to recover. In the latter he is not. aster, was forbidden to ride on the pilot both by Tuff v. Warman, 5 Scott C. B. N. S. 572; ButterVan Ness and the engineer in charge of the loco- field v. Forrester, 11 East, 60; Bridge v. G. J.R. motive. The plaintiff was on the pilot at the time R. Co., 3 M. & W. 244; Davies v. Mann, 10 M. &W. of the accident, without the knowledge of any 546; Clayards v. Dethic, 12 Q. B. 439; Van Lien v. agent of the defendant. There was plenty of Scoville Co., 14 Abbott's Pr. N. S. 74; Ince v. room for the plaintiff in the box-car, which was East Bost. Co., 106 Mass. 149. open. If he had been anywhere but on the pilot It remains to apply these tests to the case before he would not have been injured. The collision us. The facts with respect to the cars left in the was not brought about by any negligence of the tunnel are not fully disclosed in the record. It is defendant's agents, but was unavoidable. The not shown when they were left there, how long defendant's agents in charge of the two trains and they had been there, when it was intended to rethe watchman in the tunnel were competent men. move them, nor why they had not been removed

The plaintiff, in rebuttal, gave evidence tending to before. It does not appear that there was a watchshow that sometimes the box-car was locked when man at the tunnel, and that he and the conductor there was no other car attached to the train, and of the train from which they were left, and the that the men were allowed by the conductor and conductor of the train which carried the plaintiff, engineer to ride on the engine, and that, on the were all well selected and competent for their evening of the accident, the engineer in charge places. For the purposes of this case we assume of the locomotive knew that the plaintiff was on that the defendant was guilty of negligence. the pilot.

The plaintiff had been warned against riding on The evidence having closed, the defendant's the pilot and forbidden to do so. It was next to counsel asked the court to instruct the jury as fol- the cowcatcher, and obviously a place of peril, lows: “If the jury find from the evidence that the especially in case of collision. There was room plaintiff knew the box-car was the proper place for for him in the box-car. He should have taken his


place there, He could have gone into the box-car in as little 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 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 cowcatcher, or put himself on the track before the advancing wheels of the locomotive. The company, although 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 anotber who rode beside him, were the only persons hurt upon the train. All those in the box-car, 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 anything 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. R.R. Co., 14 Allen, 429; Todd v. R. R. Co., 3 Id. 18; s. C., 7 Id. 207; Gavett v. R. R, Co., 16 Gray, 501; Lucas v. R. R. Co., 6 Gray, 64; Ward v. R. R. Co., 2 Abbott's Pr. (N. S.), 411: Galena R. R. v. Yarwood, 15 Ill. 468; Doggett v. R. R., 34 Iowa, 285.

The plaintiff was not entitled to recover. It follows that the court erred in refusing the instructions 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 directions, and error to refuse. Gavett v. R. R. Co., supra; Merchants' Bank v. State Bank, 10 Wall. 605; Pleasant v. Fant, 22 Wall. 121.

The judgment of the Supreme Court of the District of Columbia is reversed, and the case will be remanded with directions to issue a venire de noro, and proceed in conformity with this opinion.

by plaintiff while in the employment of defendant, by reason of the negligence of defendant's employees. There was a verdict and judgment for plaintiff; defendant appeals. The facts involved in the questions of law determined by the court are found in the opinion. The case has before been in this court upon a former appeal by defendant. See 41 Iowa, p. 344.

Cook & Richman, for appellant; W. A. Foster, for appellee.

BECK, J., delivered the opinion of the court:

Plaintiff, with numerous other men, was employed by defendant in taking down and removing its old railroad bridge across the Mississippi river, between Davenport and Rock Island. The timbers of the bridge were, when taken down, placed upon cars and in that manner transported to a place convenient for depositing them. To reach this place with the train, it was necessary to draw it westward with an engine, and, at a certain point, change it by means of a “switch” to another track, upon which it was “ backed” to the place where the load was deposited.

Plaintiff was required by the employee of defendant, under whose direction he was working, to go from the bridge when the train had received its load with it, in order to assist in unloading the timbers. With other men he went upon the train and seated himself upon the timbers. In backing, the timbers upon which he was sitting were thrown off the car and plaintiff himself also was thrown to the ground, the timbers, or some of them, falling upon him. Plaintiff claims that the accident occurred through the negligence of defendant's employees, and that the injuries he received were severe and permanent in their character, and have so far disabled him that he can not engage in employments requiring ordinary strength and vigor.

The issues of the case involved the extent of the injuries inflicted upon plaintiff, and their effect upon his health and strength. He testified upon the first trial that he was so far disabled that he could not engage in labor requiring the exercise of common strength and activity. His testimony was to the effect that his hips and back were the seats of great pain, and that the injuries had impaired his nervous system, and that his limbs and some of his internal organs were to an extent paralyzed. After the jury were empanneled, and before the introduction of any testimony, the defendant filed a written application, asking that a proper order of the court be made requiring the plaintiff to submit to an examination by physicians and surgeons, that they might determine the true condition of his health and character and extent of his ailments, to the end that it might be known whether, indeed, he was suffering from any disability, and if so found, whether it originated from the injuries sustained by the timbers falling upon him as claimed by him in his petition and testimony. The defendant, in its application, asked that such an examination should be made by a proper number of physicians, to be selected, the equal numbers by plaintiff and defendant, and it

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