Shannon v. Boston & Maine Railroad ( 1902 )

If the verdict of the jury was the result of the second instruction, they must have found that Beede was negligent up to the time of the collision in not moving to a place of safety. If, after the engineer saw that Beede was apparently intending to remain in his position, the engineer could, and in the exercise of reasonable care ought to, have attempted to avoid the collision, Beede, according to the finding of the jury, might during this interval of time have avoided the collision by an exercise of like care. In other words, Beede, by the exercise of ordinary care, might have avoided the evil effects of the forces that had already been set in motion, or rather, were allowed to continue in motion, by the defendants' negligence. Without his negligence the collision would not have occurred, notwithstanding the defendants' negligence, for he would have been beyond the reach of the forces that were in action through their negligence. If his negligence was not the proximate cause of his death, it was a contributing cause, and in either event his representative is not entitled to recover damages of the defendants therefor.

Exception overruled.

All concurred.