Benson v. N.Y., N.H. H.R.R. Company , 26 R.I. 405 ( 1904 )

Conceding it to be established by a preponderance of evidence that cars of the type of car number 11,487 were not in common use, it is, nevertheless, undisputed that the running-board on car number 12,525 was in proper condition, and that, if the plaintiff had used it in passing to car number 11,487, the accident could not have happened. Indeed, this ground of liability was considered and disposed of when this case was before the court in 23 R.I. at p. 157, the court saying: "When the plaintiff was advised by his experience of the great diversity existing in the construction of cars, it seems to us of little importance whether he had seen a freight car of just that make or not, though he admits he knew cabooses were made so. Using cars of various construction was a risk incident to his employment."

It is also undisputed that there was no emergency requiring the plaintiff to run near the edge of the roof instead of upon the running-board in the center of it; nor did he so do by the direction of a superior in authority. He voluntarily chose a portion of the surface of the roof which he admits he knew had obstructions at the point whence he leaped, as well as at the point to which he had leaped on the next car, in the form of grab-irons at each point, when there was an unobstructed passageway between the cars by means of the running-boards; and he alone must bear the lamentable consequences of his act.

The law is well settled that when an employee has his choice of two ways of performing his duty, the one safe, though inconvenient, and the other dangerous, he is bound to select the safe method; and if, in so doing, he elects to pursue the dangerous way, and is in consequence injured, he is guilty of such negligence as will preclude his recovery. Instances of the application of this rule are given by the U.S. Circuit Court of Appeals for the Eighth Circuit, in Gilbert v. Burlington C.R. N. Ry. Co., decided March 24, 1904, and reported in 128 Fed. Rep. 529, at p. 536, as follows: "An employee rides upon the pilot of an engine when there are cars on which he could ride with safety. He is injured through the negligence of the master, of the effects of which he was ignorant, when he would have suffered no harm if either he or the master had not been guilty of want of ordinary care. He can not recover, because his negligence contributes to the injury, which the unknown negligence of the master concurred to cause. A pedestrian is about to cross a railroad. It is his duty to stop and look and listen before he crosses. It is the duty of the railroad company to ring a bell or sound a whistle to warn him of approaching trains. A train comes without whistle or bell, and gives no warning of its approach. The footman walks onto the railroad without stopping or looking along the track to the right or the left, and he is injured. He can not recover, although he had no knowledge that the train carried no bell or whistle, and that no signal would be given, because his negligence contributed to the injury. A brakeman carelessly jumps onto the brakebeam of a moving car and seizes a handhold not placed upon it to sustain a strain of that character, when there are other handholds for the purpose of enabling men to climb upon the cars, which he ought to have used. He is ignorant that through the negligence of the master one of the screws which keeps the handhold he seizes in place does not secure it. He pulls out the screw, falls, and is injured. He can not recover, because his negligence directly contributes to his injury. Indeed, where the plaintiff knows he is exposing himself to great danger, and his negligence directly contributes to his injury, it is not his want of care with reference to the particular negligence or defect that concurs to injure him, but his general breach of duty toward his master, his failure to exercise due care in view of the knowledge which he has, that is fatal to his recovery. When he knowingly departs from the line of duty, and unnecessarily causes his own injury by putting himself in a place which he knows to be dangerous, it is no excuse for his breach of duty that the place was more dangerous than he supposed it to be, or that he did not know the exact degree of the danger he carelessly incurred. One who voluntarily and unnecessarily exposes himself to a known and great danger, and thereby directly contributes to his injury, can not escape the fatal effect of his contributory negligence because the negligence of the defendant which concurred to produce the injury, and of which he was ignorant, made the danger greater than he supposed it would be. Railroad Co. v. Jones, 95 U.S. 439, 440, 442, 443, 24 L.Ed. 506; Railroad Co. v. Houston,95 U.S. 697, 702, 24 L.Ed. 542; Dawson v. Chicago, R.I. P. Ry. Co., 114 Fed. Rep. 870, 52 C.C.A. 286; Erie R. Co. v.Kane, 118 Fed. 223, 235, 55 C.C.A. 129, 141; Kresanowski v.Railroad Co. (C.C.), 18 Fed. 229." And see Quirouet v.Alabama Great Southern R.R. Co. (1900), 111 Ga. 315, and cases cited; Morris v. Duluth S.S. A. Ry. Co., 47 C.C.A. 661, and cases cited; Union Pacific R.R. Co. v. Estes, 37 Kan. 715;Moore v. Kansas City, Fort Scott Memphis R.R. Co., 146 Mo. 572; Dandie v. So. Pacific R.R. Co., 42 La. Ann. 686; Taylor v. R.R. Co., 109 N.C. 233.

The remaining general rules applicable were so fully discussed when the case was before the court, in 23 R.I. 147,supra, that further discussion of them becomes unnecessary.

Inasmuch as upon the plaintiff's own testimony there can be no recovery, the case will be remanded to the Common Pleas Division, with direction to enter judgment for the defendant.