CHICAGO & N. W. RY. CO. v. DAVIS, 53 F. 61

SAINBORH, Circuit Judge. Tbe defendant in error, wbo was tbe plaintiff below, brought tbis action for tbe negligent killing of tbe deceased by tbe defendant railway company. The company, in its answer, denied negligence on its part, and alleged that tbe negligence of tbe deceased caused bis death. Tbe testimony was undisputed, and established tbe following facts: On July 11, 1888, tbe deceased was working as a

section man for tbe defendant. He bad been in its service in that capacity about two weeks, and on tbis day was one of a1

section gang of six men wbo were engaged in transporting railroad ties by means of a band car and dump car along tbe line of the railroad to tbe point where they were to be nsed to repair it. Three of these men stood upon tbe forward end of tbe band car, and three upon tbe rear end. Tbe deceased was tbe middle one of tbe three standing upon tbe rear of tbe car. Dump cars ordinarily have no brake, and no means of fastening them to a band car, and tbis one bad none.

In tbe forenoon of tbis day these men loaded 22 or 23 new cedar ties lengthwise upon tbe . dump car, and hauled them about a mile and a half over a billy road, when they unloaded them, removed tbe cars from tbe track, ate their dinner, then reloaded tbe dump car, and again proceeded on their way. In tbe morning, when tbe dump car was loaded, tbe

section ' boss struck a pick into one of tbe ties near its forward end, so that its handle projected forward, and directed some one to take bold of tbe pick. The band car was placed in front of tbe loaded dump car, and tbe deceased, standing on tbe rear end of tbe band car, grasped its handle with bis right band to bold himself in position, and took bold of tbe handle of tbe pick with bis left band, to control tbe speed of tbe dump car, and keep it at a proper distance from tbe band car.

They passed some rising grades in tbe forenoon, and there they got off and pushed tbe dump car, because tbe propelling power of tbe band car was not sufficient to haul it. After reloading the car in tbe afternoon, they proceeded in tbe same way, tbe deceased still grasping tbe handle of tbe band car and tbe pick handle, until, as they were passing down a descending grade, one or two of the ties and tbe pick fell off. When tbe ties fell, tbe boss applied tbe brake to tbe band car, which diminished its speed, but be immediately saw that no more ties would fall, and released tbe brake.

When be applied the brake, tbe dump car came up against tbe band car so that tbe men standing on it felt it "a little bit,” but neither tbe deceased nor any of tbe men on tbe car lost their balance on tbis account, or bad any difficulty in keeping their places. When tbe. brake was released, tbe band car, which was moving about three or four miles an hour, — so slowly that the men could easily step from.it to tbe ground without falling, — separated from 2 to 8 feet from tbe dump car.

When tbe hand car had moved about 150 feet from the place where the ties and pick fell off, the deceased released his hold on the handle of the hand car, and went down between that and the dump car, where he was run over and killed by the latter.

When the brake was let off, be had his right hand on the handle of the hand car, and as he released his hold and went down upon the roadbt d lie did not call out, or reach out his hand to grasp anything or any one, nor did he lose his balance or fall, but stood still, as if he had stepped down, or walked a step or two towards the dump car, unlil it struck him, and threw him under it. At the close of the testimony the defendant requested the court to instruct the jury to return a verdict in its favor, hut this was refused, and this refusal is one of the c rrors assigned.

There was a verdict and judgment for plaintiff.

In providing his employes with a reasonably safe place in which to work, in supplying them with reasonably safe machinery and appliances with which to perform the service assigned to them, in the employment of competent men, and in the general conduct of his business, it is the duty of the employer to use that degree of care, commensurate with the character of his various operations, which an ordinarily prudent person would exercise under like circumstances in order to protect his employes from, injury; and for any injury caused by bis failure so to do he is liable in damages, provided the injured employe does not by his own negligence contribute to such injury.

It is likewise the duty of the employe to exercise that degree of care, commensurate with the eharac ter of his occupation, which au ordinarily prudent person would employ under like circumstances in order to protect himself from injury, and, if he fails to exercise this care, he cannot recover for any injury ,.o which his own negligence has contributed, even though his employer has failed to exercise due care.

Where the injury results from the concurrent negligence of the employer and employe, the lattei cannot maintain an action for damages resulting from it, because it is impracticable in the administration of justice to divide and apportion the compensation in proportion to the varying degrees of concurring negligence.

If he voluntarily and unnecessarily places himself in a position that lie knows is dangerous, or that an ordinarily prudent man in his position would know was dangerous, and is thereby injured, when there are other positions that he might take in the discharge of his duty that are safe, ho cannot recover of tiie defendant, although the latter is in some degree negligent. He cannot recklessly and unnecessarily expose himself to a, known danger, and then recover for an injury bo which such exposure contributed. Cunningham v. Railroad Co., 17 Fed. Rep. 882, 886; Bunt v. Mining Co., 138 U. S. 483, 485, 11 Sup. Ct.

Rep. 461; Railroad Co. v. Jones, 95 U. S. 439, 443; Kane v. Railway Co., 128 U. S. 91, 94, 9 Sup. Ct. Rep. 10; Godlett v. Railroad, 122 U. S. 391, 411, 7 Sup. Ct. Rep. 1254; Kresanowski v. Railroad Co., 18 Fed. Rep. 229, 234, 235; Railroad Co. v. Nickels, (8th Circuit,) 4 U. S. App. 369, 1 C. C. A. 625, 50 Fed. Rep. 723. Under the statute upon which this action is based, the administrator can maintain it only in case the deceased could have recovered damages for his injury if he h id survived. The iirsb question therefore is, did the negligence of the deceased cause or contribute to the accident and death?

The proximate cause of the death was that the deceased released his grasp upon the handle of the hand car, went down upon the roadbed between the cars, and there stood still, or walked towards the approaching dump car, until it struck him. These acts were not necessary to the proper performance of his duties. They did not tend to assist him in the proper discharge of those duties, but tended to prevent their proper discharge. The danger of releasing his hold and placing himself on the roadbed in front of the descending loaded car was plain and palpable. Ho man of ordinary prudence could fail to apprehend it.

The deceased must have seen and known it. He was 48 years old. He had been in this country 10 years. He had worked for this railroad company four or five weeks on a gravel train, and two weeks immediately preceding the accident on this

section where he was killed. He knew that these cars were running at a down grade at the rate of three or four miles an hour, and that his safety in standing on the moving hand car depended upon his holding fast to its handle. He knew the effect of gravitation, — that heavy bodies, when unsupported, will fall; that cars as well as water'will run down hill; and that the momentum of a loaded car descending a grade at the rate of four miles an horn will carry with it or crush under it a single man who places himself in its way.

Ho man of ordinary prudence would have so unnecessarily exposed himself to this plain danger. Ho man in the exercise of reasonable care would have released his hold upon the handle of the hand car, so that he might, by any sudden change of speed, be toppled off the car. Ho ordinarily prudent man would have placed himself on the roadbed in front of the advancing dump car. As well might a brakeman throw himself in front of an advancing locomotive, or a painter, holding to a ladder far up on the side of a lofty building, release his hold, and then seek to recover of his employer for resulting injury. In Kane v.

Railway Co., supra, the supreme court said: “It is undoubtedly the law that an employe is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, when such injuries substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided them, if in his power to do so. He will be deemed to have assumed the risks involved in such heedless exposure of himself to danger. ” In Cunningham v.

Railroad Co., supra, where a yardman in the discharge of his duties unnecessarily jumped upon a defective foot-board on the rear of an approaching engine, whose hand railing was broken off, so that he fell under the engine and was killed, Justice Miller, in charging the jury, thus laid down this rule of law: “Aman has no right, because a fire is built in his neighborhood, to put his finger or his clothes in' it, and burn them, then sajr, ‘ I may sue and recover damages.’ A man has no right to thrust himself forward into a dangerous position, and say, ‘ If I am killed, somebody will get damages for it;’ or, ‘ If I am hurt, I .shall go to the hospital, and be taken care of, and recover damages.’ He has got to take care of himself, as well as the railroad has to take care of their duties and their employes.

These obligations are mutual; and it is the law, and it is your duty to require it as law, that, if á man voluntarily put himself into a dangerous position, — does so unnecessarily, when there are other positions in connection with the discharge of his duty which are safe which he can be placed in, — he cannot recover of the railroad company damages for that injury to which he has contributed by his own negligence.

That is the law. ” When the jury in that case, through some mistake, returned a verdict for the plaintiff, he immediately set it aside with the remark that it was not only a case of < Lear negligence on the part of the deceased, hut a case of stupid n; gligence on Ms part. The similarity of the negligent acts of the deceased in that case and in the case we are now considering is striking, and the applicability of this rule of law to the facts of this case is obvious. The deceased was stationed iu a safe position for the discharge of his duty, — a position where he would not have been Injured had he retained it.

Ho carelessly left it, and unnecessarily exposed himself to a perfectly obvious danger. This careless exposure was the proximate cause of his death. An ordinarily prudent man would not have so exposed himself, and would not have been injured. The other five members of his gang did not, and they were not) injured; and the court below should have instructed the jury to return a verdict for the defendant. The views we have already expressed render it unnecessary to consider the other errors assigned.

The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.