Power v. Wabash Railroad ( 1912 )

DISSENTING- OPINION.

LAMM, J.

I dissent from the principal opinion of Commissioner Rot and concur in the opinion of Commissioner Blais, and put my vote on the ground that Power was guilty of contributory negligence as a matter of la,w. Let it be conceded, for argument’s sake, that defendant was negligent in blocking in the night time the only safe passageway to the dining car by placing a car over the trestle and providing no temporary light there, yet the circumstances being out of the ordinary, there being a wreck and a sudden emergency, with cars-shifting here, and there constantly, decedent had no right to rely on a permanent location of the dining car at any certain place on the track, or at any given point bearing a certain permanent relation in distance to the ravine, or to any other car of the wrecking train. Things in that regard shifted every now and then and had to shift, all of which decedent knew. The dining car .might be on one side of the ravine at one time and on the other at another. Decedent knew that. He knew, too, of the dangerous embankment and ravine. There is no testimony that he cared for a torch, or asked for a light and was refused one or that he could not have had a torch for the asking. In this condition of things, he set out on his journey in the nighttime without a light, knowing that a car of the train might be between him and the dining car, and, what is more, might stand either over or on one side or the other of the ravine. While on that journey he came to such car. Observe, he knew he was close to the trestle and the embankment leading to it. His attention was jogged in that particular. Forewarned on that fact, he took his own course for it. We are not left to gness about that matter. We know from the testimony not only that he trusted solely to his own judgment and not his master’s judgment, but that he was willing to do so. The master had given him no advice on the point, decedent asked for none, he stepped out into the darkness and met his death. Why? Because his judgment was wrong on a point he chose to decide for himself. No man should have taken the risk he did in the presence of deadly peril he knew was lurking close by in the dark, without shouldering the responsibility for the result. In taking that risk voluntarily and after a warning, it seems to me it ought to be at his own and not his master’s risk. It was a leap in the dark indeed. I lay no stress on the fact that decedent was not asked to go to supper. Men must eat. Defendant knew those men would get hungry and arranged accordingly. But something must be allowed to the hurry, the emergency, the darkness and decedent was bound to act with ordinary prudence before his widow can call on the master to respond in damages for negligence. When employers are made liable without regard to negligence, or contributory negligence, as contemplated in legislation now bruited and being hammered out on the anvil of-public discussion, it will be time enough for courts to take that view of it. For the present we should enforce the law as it is, not as it isn’t.