Chapter XXIV: Section VIII: Contributory Culpable Conduct of Plaintiff (4)

Plaintiff was struck by a train while attempting to use a crossing provided by the Railroad Company for persons having business with a manufacturing company. From a point twenty-two feet from the nearest rails there was an unobstructed view of the track in the direction from which the train came. The accident happened near noon on a bright and clear day. Generally the engine bell was rung, while the whistle was sometimes sounded, for this crossing. Plaintiff knew it was usual to ring the bell. In this instance a danger whistle was sounded at, or immediately before, the time when plaintiff was struck; but there was evidence tending to prove that no other warning of the approach of the train was given. Plaintiff testified that he did not look or listen for an approaching train; and that he did not look because he expected to hear the bell or whistle if one was coming. The engineer testified that, when about one hundred and fifty to two hundred feet from the crossing, he saw plaintiff approaching the track; and that he kept watch of plaintiff until he got within a few feet of the track, when he whistled.[212]

A nonsuit was ordered, subject to exception.

PARSONS, J.... It is urged that the plaintiff relied upon the ringing of the bell, and that the failure to give the warning signals (of which there was some evidence which must here be taken to be true) excused him from the exercise of vigilance. Though the plaintiff testified that he did not look to see if a train was approaching because he expected to hear the whistle or bell if there was, it cannot be claimed that he was consciously at the time placing any reliance thereon, for he further testifies that he had no thought of a train coming and did not listen for the bell. As his counsel state in their brief, “There was no positive effort, no conscious ‘harking’ or ‘listening’ to ascertain if the train was coming.” But assuming that it might be found as a fact that he did rely on the awakening of his consciousness by the performance of the railroad’s duty of warning, the failure of the defendants to perform their duty did not release him from his. The obligation to use care was equally imposed upon each. If the defendants’ negligence excused the plaintiff from his duty of care, the plaintiff’s negligence with equal reason would excuse the defendants. If the plaintiff had the right to assume the defendants would perform their duty, and, relying thereon, approach the crossing without exercising care, the defendants had the right to assume that the plaintiff would perform his duty, and omit the warning of bell and whistle. The duty of care rested on each equally. If neither performed that duty both are in fault, and neither can recover of the other. The collision in this case resulted, it may be, because neither party performed their duty. If either had, there might and probably would have been no accident. The rights and liabilities of the parties consequent upon their acts resulting in the collision are not affected by the fact that subsequently one is plaintiff and the other defendant in a suit growing out of the collision. Their several responsibility is fixed at the time by their acts or failure to act. A suit by the engineer against Gahagan for personal injury resulting from the collision would present precisely the same legal question as that we now have. It would hardly be urged that the engineer was not guilty of contributory negligence in failing to ring the bell because he relied upon Gahagan’s performance of his duty of stopping and allowing the train to go by. The negligence of neither is an excuse for concurrent want of care in the other, because for an injury resulting from the concurrent negligence of both neither can recover. Nashua Iron and Steel Co. _v._ Railroad, 62 N. H. 159, 163.

The rule is laid down in Railroad Co. _v._ Houston, 95 U. S. 697, 702, also a crossing case, as follows: “The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars was no excuse for negligence on her part.”

* * * * *

It is not claimed that after the plaintiff stepped upon the track almost immediately in front of the approaching train the defendants could have prevented the injury, or that the employees in charge of the train, when the danger thus became imminent, did not do all that could be done to prevent the collision. At any time before this the plaintiff could have avoided the collision. There was no moment when the defendants could, while the plaintiff could not, have prevented the injury. The plaintiff’s act in stepping upon the track, without precaution to ascertain whether he could safely do so, was the last act in point of time in the causation producing the injury. As there was no evidence upon which it could reasonably be found that the plaintiff’s action in this respect was the exercise of care, he cannot recover unless upon the evidence some negligent act or omission of the defendants’ employees could be found to be the sole proximate cause of the injury.

* * * * *

The plaintiff’s negligent occupation of the track did not authorize the defendants to run upon and injure him, if by care they could have avoided it. Ordinarily, the negligent act or omission which fails to avoid the consequences of the plaintiff’s negligence is the last act in time in the series leading to the injury. Such was the case in the cases cited; the negligent occupation of the track by the plaintiffs preceded the negligence of the defendants in failing to observe and guard against the danger so produced. But as ordinary care may require vigilance to guard against a dangerous situation reasonably to be apprehended, as well as actually imminent, it cannot always follow that the last negligent act in point of time is necessarily the proximate cause of the injury. If the engineer knew or ought to have known that the plaintiff’s negligence would place him upon the crossing when the train reached it, the engineer was equally bound to avoid the collision as if he saw the plaintiff actually on the track. The question is one of evidence merely. The mere fact that the person when first seen is on the track is not decisive. If a person on foot is seen crossing the track at such distance ahead that it could not reasonably be apprehended that the train would reach him in this position, the engineer would not be in fault for not preparing to avoid a danger not reasonably to be expected. In the present case there is evidence that when the plaintiff was first seen by the engineer the collision could have been prevented. If the engineer knew or ought to have known then that the plaintiff would be upon the crossing when the train reached it, and could have avoided the collision, his failure to do so is the proximate cause of the injury.

As there was evidence the collision might then have been prevented by him, the sole remaining question is whether upon the evidence reasonable men might find the engineer ought then to have foreseen the plaintiff’s negligence. The bare fact that the plaintiff was seen approaching the track is not sufficient to authorize such a finding. If it were, the rule heretofore laid down and found to be approved by the authorities and the reason of the case, that it is the duty of the highway traveller to stop and allow the train to pass, would be reversed. It would become the duty of the train to stop and wait for the person on foot to go by. This would be unreasonable, impracticable, and put an end to the modern system of rapid transportation demanded by the public, and to effectuate which railroads are authorized by the state.

“The company’s servants may ordinarily presume that a person apparently of full age and capacity, who is walking on the track at some distance before the engine, will leave it in time to save himself from harm; or if approaching the track, that he will stop if it becomes dangerous for him to cross it. This presumption will not be justified under some circumstances, as when the person who is on the track appears to be intoxicated, asleep, or otherwise off his guard.” Pierce R. R. 331; 2 Shearm. & Red. Neg. _s._ 483; Chicago, etc. R. R. _v._ Lee, 68 Ill. 576, 581; Terre Haute, etc. R. R. _v._ Graham, 46 Ind. 239, 245; Lake Shore, etc. R. R. _v._ Miller, 25 Mich. 274, 278, 280; Boyd _v._ Railway, 105 Mo. 371, 381, 382. The presumption is founded upon the general principle of right acting and the instinct of self-preservation. Huntress _v._ Railroad, 66 N. H. 185; Lyman _v._ Railroad, 66 N. H. 200; 2 Thomp. Neg. 1601.

The case discloses no evidence apparent to the engineer taking the present case out of the rule.

* * * * *

Aside from the plaintiff’s own statement and the fact of the subsequent collision, the case contains no evidence that the plaintiff, when seen by the engineer approaching the crossing, was not alert to the situation, or tending to produce a belief that he would voluntarily rush into danger without care. Until he stepped upon the track his only danger consisted in the fact of his mental obliviousness to his duty of taking care. So defining his danger, the claim of his counsel, that if the engineer knew the plaintiff’s danger he could have avoided the injury and is in fault for not doing so, is sound; but to submit to the jury the question of fact whether the engineer ought to have known the _status_ of the plaintiff’s mind in season to have prevented the accident, not only in the absence of evidentiary facts tending to prove such knowledge but in the face of all the facts open only to a contrary inference, would be a violation of the familiar and elementary rule that in judicial trials facts are to be found upon evidence, not conjecture. Deschenes _v._ Railroad, 69 N. H. 285.

The evidence upon which counsel mainly rely, tending to show that when seen by the engineer Gahagan’s face was not turned toward the train and that his appearance did not indicate whether he saw the train or not, does not tend to establish that he proposed to rush carelessly into known danger, or that he would go upon the track without care to ascertain if a train was approaching. That Gahagan knew the crossing, its danger, and his approach to it, was conceded. Hence, in the face of this admitted fact, although this evidence may have some tendency to prove the contrary, the jury could not find that Gahagan did not know he was approaching a place of danger, or that the engineer ought to have inferred a fact which it is conceded did not exist. As there is no evidence that the defendants ought to have known the plaintiff’s danger in season to have avoided the results of his negligence, they cannot be found guilty of negligence for not doing so.

* * * * *

_Exceptions overruled._

KEITH, P., IN NORFOLK & W. R. CO. _v._ DEAN’S ADM’X
(1907) _107 Virginia, 505, 506, 507, 513._

KEITH, P. The Circuit Court ... rests the case solely upon the second
count in the declaration, in which the case presented is that, after
it became apparent to the crew in charge of defendant company’s train
that intestate of plaintiff was on the track in front of the engine,
that he was unconscious of his danger, and would take no measures to
protect himself, the crew failed to use any measure to prevent the
accident. Such being the issue to be determined, it is needless to
consider so much of the evidence as relates to the use of the track as
a public passway, or as to whether or not the person injured was a
licensee or a trespasser. He was a human being, and when his dangerous
position was seen and known, and that he himself was unconscious of
his peril, and would take no measures for his own protection, it
became the duty of the railroad company to do all that could be done
consistent with its higher duties to others to save him from the
consequences of his own act, regardless of whether he was guilty of
contributory negligence or not. Seaboard & Roanoke R. Co. _v._
Joyner’s Adm’r, 92 Va. 355, 23 S. E. 773.

This being the narrow issue to be decided, it becomes necessary to
consider the evidence bearing upon it with care....

[The learned judge then considered the testimony. He found that there
was no failure of duty on the part of the train men; and he _held_
that the demurrer to the evidence should have been sustained. He
quoted, with approval, the following statements of the law.]

In N. & W. Ry. Co. _v._ Harman, 83 Va. 577, 8 S. E. 258, it is said
that “if a person seen upon the track is an adult, and apparently in
the possession of his or her faculties, the company has a right to
presume that he will exercise his senses and remove himself from his
dangerous position; and if he fails to do so, and is injured, the
fault is his own, and there is, in the absence of wilful negligence on
its part, no remedy against the company for the results of an injury
brought upon him by his own recklessness.”

* * * * *

In Rangeley _v._ Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is
said that a railroad company has the right to assume that a grown
person seen on its track will get out of the way of an approaching
train, and the company is not liable unless it is shown that after the
company, in the exercise of ordinary care, could have discovered that
he was not going to get off the track, it could have avoided the
injury.

O’KEEFE, ADM’X, _v._ CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
SUPREME COURT, IOWA, OCTOBER 21, 1871.
_Reported in 32 Iowa Reports, 467._

Appeal from Polk District Court.

Action by an administratrix to recover damages for the death of her husband, Dennis O’Keefe, alleged to have been killed by being run over on the defendant’s road, through the negligence of the defendant’s agents and employees. Defence in denial, and also that the death was caused by the drunkenness and negligence of the plaintiff’s intestate. There was a jury trial, resulting in a verdict and judgment for plaintiff for $1000. The defendant appeals.

COLE, J. [Omitting statement of evidence.] After the evidence was closed, the defendant asked the court to instruct the jury as follows: “If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s intestate, was, a short time before the alleged injury, in a state of intoxication; that in such condition he went upon defendant’s railroad and laid himself down upon the track, or fell down unable to support himself because of such intoxication; that remaining in that condition a passing train crushed one of his legs; that after the injury he was yet under the influence of intoxicating liquors drank before the injury; that the injured limb was amputated and death ensued, you will find for the defendant, unless you further find from a preponderance of the evidence that defendant or its agents had knowledge that he was thus lying in time to prevent the accident,” to which the court added, and then gave it, “_or, could have known with the exercise of ordinary caution_.” This modification was excepted to at the time, and is now assigned as error.

The well-established law of this state is, that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be entitled to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of “contributory negligence,” and not the doctrine of “comparative negligence.” The latter doctrine obtains only in Illinois and Georgia, while the former obtains in the other states, and also in the Federal courts. The modification complained of ignored the doctrine of contributory negligence, and substantially told the jury that plaintiff might recover without regard to his negligence, if the defendant could have prevented the injury with the exercise of ordinary caution. The doctrine of the modification goes even farther than that of comparative negligence; for, by the latter, a plaintiff can only recover when he shows the defendant’s negligence to have been greater, by comparison, than his, while by the modification the plaintiff might recover if the defendant did not exercise ordinary caution, although the plaintiff’s intestate may have been guilty of a much greater negligence in laying himself down, in a condition of intoxication, near to or upon the track. A similar modification was made to the second instruction. In each there was error.

_Reversed._

PICKETT _v._ WILMINGTON & WELDON RAILROAD COMPANY
SUPREME COURT, NORTH CAROLINA, SEPTEMBER TERM, 1895.
_Reported in 117 North Carolina Reports, 616._

AVERY, J.[213] The most important question presented by the appeal is
whether the court erred in refusing to instruct the jury that if the
plaintiff’s intestate deliberately laid down upon the track and either
carelessly or intentionally fell asleep there, the defendant was not
liable, unless the engineer actually saw that he was lying there in
time, by the reasonable use of appliances at his command, to have
stopped the train before it reached him.

* * * * *

In Gunter _v._ Wicker, 85 N. C. 310, this court gave its sanction to
the principle first distinctly formulated in Davies _v._ Mann, 10 M. &
W. (Ex.) 545, that “Notwithstanding the previous negligence of the
plaintiff, if at the time the injury was done it might have been
avoided by the exercise of reasonable care and prudence on the part of
the defendant, an action will lie for damages.” This doctrine was
subsequently approved in Saulter _v._ Steamship Co., 88 N. C. 123;
Turrentine _v._ Railroad, 92 N. C. 638; Meredith _v._ Iron Co., 99 N.
C. 576; Roberts _v._ Railroad, 88 N. C. 560; Farmer _v._ Railroad,
_Ibid._ 564; Bullock _v._ Railroad, 105 N. C. 180; Wilson _v._
Railroad, 90 N. C. 69; Snowden _v._ Railroad, 95 N. C. 93; Carlton
_v._ Railroad, 104 N. C. 365; Randall _v._ Railroad, 104 N. C. 108;
Bullock _v._ Railroad, 105 N. C. 180, and it was repeatedly declared
in those cases that it was negligence on the part of the engineer of a
railway company to fail to exercise reasonable care in keeping a
lookout not only for stock and obstructions but for apparently
helpless or infirm human beings on the track, and that the failure to
do so supervening after the negligence of another, where persons or
animals were exposed to danger, would be deemed the proximate cause of
any resulting injury.

* * * * *

[As to argument for defendant.] But the reasons and the authorities
relied upon emanate generally from courts which hold that both persons
and animals upon a track are trespassers and entitled to consideration
only where actually seen in time to save them....

It cannot be denied that, in a number of the states which have adopted
the doctrine of Davies _v._ Mann, it has also been held that both man
and beast were trespassers when they went upon a railway track and
except at public crossings or in towns it was not the duty of the
engineer to exercise care in looking to his front with a view to the
protection of either. Where the law does not impose the duty of
watchfulness it follows that the failure to watch is not an omission,
of duty intervening between the negligence of the plaintiff in
exposing himself and the accident, unless he be actually seen in time
to avert it. The negligence of the corporation grows out of omission
of a legal duty and there can be no omission where there is no duty
prescribed.

* * * * *

We are of opinion that, when by the exercise of ordinary care an
engineer can see that a human being is lying apparently helpless from
any cause on the track in front of his engine in time to stop the
train by the use of the appliances at his command and without peril to
the safety of persons on the train, the company is liable for any
injury resulting from his failure to perform his duty. If it is the
settled law of North Carolina (as we have shown) that it is the duty
of an engineer on a moving train to maintain a reasonably vigilant
outlook along the track in his front, then the failure to do so is an
omission of a legal duty. If by the performance of that duty an
accident might have been averted, notwithstanding the previous
negligence of another, then, under the doctrine of Davies _v._ Mann,
and Gunter _v._ Wicker,[214] the breach of duty was the proximate
cause of any injury growing out of such accident, and where it is a
proximate cause the company is liable to respond in damages. Having
adopted the principle that one whose duty it is to see does see, we
must follow it to its logical results. The court committed no error of
which the defendant could justly complain in stating the general rule
which we have been discussing.

* * * * *

DYERSON _v._ UNION PACIFIC RAILROAD COMPANY
SUPREME COURT, KANSAS, NOVEMBER 10, 1906.
_Reported in 74 Kansas Reports, 528._

Plaintiff sued for damages caused by being struck by the tender of an
engine.

Plaintiff, an employee of the R. R. Co., had occasion to cross the
track. As he was about to step upon the track, he was struck by the
tender of a locomotive which was backing east at the rate of fifteen
or twenty miles an hour without giving a signal of its approach and
without keeping a lookout along the track. The track was straight for
a quarter of a mile west. It was a clear day, and there was nothing to
have prevented the plaintiff from seeing the engine and tender if he
had looked.[215]

At the trial, the court rendered judgment against plaintiff upon his
petition and preliminary statement to the jury which disclosed the
above facts. Plaintiff brought error.

MASON, J.

* * * * *

Finally it is contended in behalf of the plaintiff that, even
admitting his own want of care to have been such as would ordinarily
bar a recovery, still he had a right to submit to the jury the
question whether the employees in charge of the engine by the use of
reasonable diligence could have discovered his negligence in time to
avert the accident, and that an affirmative answer would have entitled
him to a verdict.

* * * * *

In a number of cases it has been held that if the engineer by the
exercise of reasonable diligence could have learned that danger was
imminent but did not do so, the liability of the company will be
determined in all respects as though he had in fact become aware of
it, the constructive knowledge being apparently deemed the equivalent
of actual knowledge. It is difficult or impossible to reconcile the
decisions upon this and related questions, or to derive from them any
generally accepted statement either of principle or result. Many of
them are collected and discussed in chapter ix of volume i of
Thompson’s Commentaries on the Law of Negligence, especially in
sections 222 to 247.

There seems, however, to be no sufficient reason why the mere fact
that a defendant is negligent in failing to discover a plaintiff’s
negligence, or his danger, should in and of itself exclude all
consideration of contributory negligence. Take the not unusual
situation of a train being negligently operated, let us say by being
run at too high a speed and without proper signals of warning being
given. Now, any one injured as a result of such negligence has _prima
facie_ a right to recover. But, if his own negligence has contributed
to his injury, then ordinarily his right is barred. How is the
situation altered if the railroad employees add to their negligence in
regard to speed and signals the negligence of failing to keep a
sufficient lookout? The negligence is of the same sort; and, if the
contributory negligence of the person injured prevents a recovery when
but the two elements of negligence are present, consistency requires
that it should have the same effect although a third element is added.
If in the present case the plaintiff was entitled to recover in spite
of his own negligence it must be because the order of its occurrence
with respect to that of the defendant made the latter the proximate
cause of the injury. This indeed is his contention, and to support it
reliance is placed upon the following text, which was quoted with
approval in Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, and the
substance of which is to be found also in volume xx of the American
and English Encyclopædia of Law, at page 137:—

“And upon the principle that one will be charged with notice of that
which by ordinary care he might have known, it is held that if either
party to an action involving the questions of negligence and
contributory negligence should, by the exercise of ordinary care, have
discovered the negligence of the other, after its occurrence, in time
to foresee and avoid its consequences, then such party is held to have
notice; and his negligence in not discovering the negligence of the
other, under such circumstances, is held the sole proximate cause of a
following injury.” (7 A. & E. Encycl. of L. 387.)

This may be accepted as a correct statement of a principle of
universal application, according with both reason and authority,
provided the words “after its occurrence” be interpreted to mean after
the person concerned had ceased to be negligent. The rule that under
the circumstances stated the neglect of one party to discover the
omission of the other is to be held to be the sole proximate cause of
a resulting injury is not an arbitrary but a reasonable one. The test
is, What wrongful conduct occasioning an injury was in operation at
the very moment it occurred or became inevitable? If just before that
climax only one party had the power to prevent the catastrophe, and he
neglected to use it, the legal responsibility is his alone. If,
however, each had such power, and each neglected to use it, then their
negligence was concurrent and neither can recover against the other.
As is said in the paragraph from which the foregoing quotation is
made, “it is only when the negligence of one party is subsequent to
that of the other that the rule can be invoked.” In a note printed in
volume ii of the supplement to the American and English Encyclopædia
of Law, at page 64, many recent cases are cited bearing on the
subject, and it is said:—

“This so-called exception to the rule of contributory negligence (_i.
e._, the doctrine of ‘the last clear chance’) will not be extended to
cases where the plaintiff’s own negligence extended up to and actually
contributed to the injury. To warrant its application there must have
been some new breach of duty on the part of the defendant subsequent
to the plaintiff’s negligence.”

In the present case it may be granted that the negligence of the
plaintiff began when he walked between the track and the ice-box on
the way to get the bucket, and that the employees in charge of the
engine were themselves negligent in not discovering this negligence on
his part and the peril to which it exposed him, and taking steps to
protect him. But his negligence as well as theirs continued up to the
moment of the accident, or until it could not possibly be averted. His
opportunity to discover and avoid the danger was at least as good as
theirs. His want of care existing as late as theirs was a concurring
cause of his injury, and bars his recovery. This determination is
entirely consistent with what Mr. Thompson in his work above cited has
styled the “last clear chance” doctrine, as is obvious from a
consideration of the terms in which it is stated. As originally
announced it was thus phrased:—

“The party who has the last opportunity of avoiding accident is not
excused by the negligence of any one else. His negligence, and not
that of the one first in fault, is the sole proximate cause of the
injury.” (1 Shear. & Red. Law of Neg., 5th ed., § 99.)

Mr. Thompson rewords it as follows:—

“Where both parties are negligent, the one that had the last clear
opportunity to avoid the accident, notwithstanding the negligence of
the other, is solely responsible for it—his negligence being deemed
the direct and proximate cause of it.” (1 Thomp. Com. Law Neg. § 240.)

Expressions are to be found in the reports seemingly at variance with
the conclusion here reached, but for the most part the decisions
holding a defendant liable for failure to discover and act upon the
plaintiff’s negligence were made in cases which were in fact like
Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, or were decided
upon the theory that they fell within the same rule. There the
plaintiff’s decedent while riding a bicycle was through his own fault
run into by a street car; he clung to the fender, was carried some
seventy-five feet, then fell under the wheels, and was killed. A
judgment against the street-car company was upheld only upon the
theory that after he had reached a position of danger from which he
could not extricate himself—that is, after his negligence had
ceased—the defendant’s employees were negligent in failing to discover
his peril and stop the car.

In Robinson _v._ Cone, 22 Vt. 213, 54 Am. Dec. 67, the writer of the
opinion said:—

“I should hesitate to say that if it appeared that the want of
ordinary care on the part of the plaintiff, _at the very time of the
injury_, contributed either to produce or to enhance the injury, he
could recover; because it seems to me that is equivalent to saying
that the plaintiff, by the exercise of ordinary care at the time,
could have escaped the injury.” (Page 223.)

The principle thus intimated was embodied in a decision in French _v._
The Grand Trunk Railway Co., 76 Vt. 441, 58 Atl. 722, where it was
said:—

“It is true that when a traveller has reached a point where he cannot
help himself, cannot extricate himself, and vigilance on his part will
not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury, and will not
preclude a recovery; but it is equally true that if a traveller, when
he reaches the point of collision, is in a situation to help himself,
and by a vigilant use of his eyes, ears, and physical strength to
extricate himself and avoid injury, his negligence at that point will
prevent a recovery, notwithstanding the fact that the trainmen could
have stopped the train in season to have avoided injuring him. In such
a case the negligence of the plaintiff is concurrent with the
negligence of the defendant, and the negligence of each is operative
at the time of the accident. When negligence is concurrent and
operative at the time of the collision, and contributes to it, there
can be no recovery.” (Page 447.)

To the same effect are these extracts:—

* * * * *

[As to the rule holding the defendant liable notwithstanding the
contributory negligence of the plaintiff.]

Of the same rule it was said in O’Brien _v._ McGlinchy, 68 Me. 552:

“This rule applies usually in cases where the plaintiff or his
property is in some position of danger from a threatened contact with
some agency under the control of the defendant when the plaintiff
cannot and the defendant can prevent an injury.... But this principle
would not govern where both parties are contemporaneously and actively
in fault, and by their mutual carelessness an injury ensues to one or
both of them.” (Pages 557, 558.)

In Smith _v._ Railroad, 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287,
the general rule was thus concretely stated:—

“Applying the rule which we have stated to accidents upon railroad
tracks, it may be illustrated as follows: First, there must be a duty
imposed upon the engineer, as otherwise there can be no negligence to
which the negligence of the injured party is to contribute. The duty
under consideration is to keep a vigilant lookout ... in order to
discover and avoid injury to persons who may be on the track and who
are apparently in unconscious or helpless peril. When such a person is
on the track and the engineer fails to discover him in time to avoid a
collision, when he could have done so by the exercise of ordinary
care, the engineer is guilty of negligence. The decisive negligence of
the engineer is when he has reached that point when no effort on his
part can avert the collision. Hence, if A, being on the track and
after this decisive negligence, fails to look and listen and is in
consequence run over and injured, his negligence is not concurrent
merely but really subsequent to that of the engineer, and he cannot
recover, as he and not the engineer has ‘the last clear opportunity of
avoiding the accident.’ If, however, A is on the track ... and while
there, and before the decisive negligence of the engineer, he by his
own negligence becomes so entangled in the rails that he cannot
extricate himself in time to avoid the collision, and his helpless
condition could have been discovered had the engineer exercised
ordinary care, then the negligence of A would be previous to that of
the engineer, and the engineer’s negligence would be the proximate
cause, he, and not A, having the last clear opportunity of avoiding
the injury. The same result would follow in the case of a wagon
negligently stalled, when no effort of the owner could remove it, and
there are other cases to which the principle is applicable.” (Pages
755, 756.)

The principle running through these cases is reasonable and is
consistent with the general rules that have met with practically
universal acceptance. Applied to the facts of this case it requires an
affirmance of the judgment.

All the Justices concurring.

BAKER, J., IN CLEVELAND R. CO. _v._ KLEE
(1900) _154 Indiana, 430, 434, 435._

BAKER, J. It is alleged in the fifth paragraph: “That on or about the
22d day of June, 1894, this plaintiff, a child nine years of age, was
on the said crossing of Georgia and Helen streets and upon said track
of said defendant in said Georgia Street; and while in said position
and place, the defendant through and by its said employees and
servants, ran said locomotive against this plaintiff and negligently
dragged this plaintiff without fault or negligence on his part, a long
distance, to wit, two hundred feet; that the defendant knew that it
had run its locomotive against this plaintiff at said crossing; and
knew that it had knocked this plaintiff down in front of its said
locomotive upon its said track; and knew that this plaintiff was
dragging in front of said locomotive on said track; but that this
defendant negligently failed to stop said locomotive before this
plaintiff was injured, although by the exercise of due care and
caution it could have stopped said locomotive before this plaintiff
was injured; but negligently dragged this plaintiff as aforesaid,
without fault or negligence on the part of this plaintiff, and
negligently injured this plaintiff in his body, back, and limbs.” The
injury for which compensation is sought in this paragraph was not
sustained in the collision at the crossing, but was wholly inflicted
after appellant knew that appellee was being dragged along the track
in front of the engine. By the exercise of due care appellant could
have stopped the engine before appellee was injured, but failed to do
so. Appellee, after being struck and while being dragged along the
track, was free from fault contributing to his injury. These
allegations constitute a cause of action. Though the paragraph
confesses, by not denying, that appellee was guilty of negligence in
being upon the track, that negligence was only the remote condition,
not the proximate cause, of the injury complained of; for the injury
resulted, after the collision, entirely from occurrences in which it
is alleged that appellant was negligent and appellee was not.

HOLMES _v._ MISSOURI PACIFIC RAILWAY COMPANY
SUPREME COURT, MISSOURI, NOVEMBER 27, 1907.
_Reported in 207 Missouri Reports, 149._

Action by C. W. Holmes and wife to recover for the death of their
child, F. G. Holmes. The child, eight years old, was struck and killed
by a locomotive engine at the crossing of an avenue. Two points in
conflict were, whether defendant was negligent, and whether the child
was contributorily negligent.

The following instruction was given at plaintiff’s request: “(4) If
the jury believe from the evidence that Freeborn G. Holmes was a boy
of immature age, and had not the capacity of an adult, and that he
exercised such care as ought reasonably to have been expected for one
of his age and capacity, then he was not guilty of contributory
negligence.”

To this instruction defendant excepted.

An instruction given at the request of defendant was, that, if the
child failed to exercise such care and caution as an ordinarily
prudent boy of his age and capacity should have exercised under the
circumstances, and by reason thereof contributed to his own death,
then your verdict must be for the defendant, regardless of all other
facts in the case.

Verdict for plaintiff. Judgment for plaintiff in Circuit Court.
Defendant appealed.[216]

VALLIANT, J.... In the brief for defendant, pages 61 and 139, the idea
is advanced that the only theory on which the plaintiffs’ judgment
could be sustained would be that the defendant is liable for the
consequences of the reckless conduct of the deceased child. That is a
misconception of the theory on which the defendant’s liability rests.
The defendant is liable only for its own negligence, and if its plea
of contributory negligence is not sustained, still, it is not charged
with the consequence of the child’s negligence; but it is only not
excused thereby for the result of its own negligence. It is not always
essential to a plaintiff’s recovery, in an action for tort, that the
evidence should show that the accident was the result of the
defendant’s negligence alone. A defendant may be liable if his
negligence contributes with that of a third person to produce the
injury complained of; in such case he is not held liable for the
negligence of the third person, but only for his own negligence,
without the contributing force of which the negligence of the third
person would not have caused the injury. But the policy of the law is
such that ordinarily a defendant guilty of negligence is relieved from
the liability for his own conduct if the person injured was himself
guilty of negligence that contributed to the result. On that theory
the defendant’s act is none the less negligent, and he is none the
less culpable, but the law will not allow a plaintiff to recover when
he himself, or the person for whose injury he sues, was also guilty of
negligence contributing with that of defendant to the result. There is
reason and justice in that policy of the law; it is an admonition to
every one to exercise due care for his own safety, and it authorizes
another to presume that he will do so, and, so presuming, adjust his
own conduct. But common experience tells us that a child may be too
young and immature to observe the care necessary to his own
preservation and therefore when a person comes in contact with such a
child, if its youth and immaturity are obvious, he is chargeable with
knowledge of that fact and he cannot indulge the presumption that the
child will do what is necessary to avoid an impending danger.
Therefore one seeing such a child in such a position is guilty of
negligence if he does not take into account the fact that it is a
child and regulate his own conduct accordingly.[217] An act in
relation to a person of mature years might be free from the imputation
of negligence while an act of like character in view of a child would
be blameworthy. Therefore when the law says to the defendant although
the act of the deceased child contributed with your act to produce the
result, yet, because of his youth and immaturity, he is not adjudged
guilty of negligence, it does not charge the defendant with the
consequence of the child’s conduct, but it only does not, for that
reason, excuse him for its [his] own negligence.

If the defendant in such case had been guilty of no negligence there
would have been no accident.

_Judgment affirmed._

GANTT, C. J., and BURGESS, LAMM, and WOODSON, JJ., concur. FOX and
GRAVES, JJ., dissent.

CULBERTSON _v._ CRESCENT CITY RAILROAD CO.
SUPREME COURT, LOUISIANA, APRIL 6, 1896.
_Reported in 48 Louisiana Annual Reports_, Part 2, 1376.

Plaintiff sued for the killing of his son, 6 years and 11 months old,
who was hit by a car at a street crossing.

In the District Court, there was a verdict for plaintiff, and judgment
thereon. Defendant appealed.[218]

BREAUX, J. [After stating the claims of both parties, and reciting the
testimony of plaintiff’s witnesses and of part of defendant’s
witnesses.]

The motorman and the conductor substantially testify that everything
was done to prevent the accident; that the boy darted in front of the
car and, that the motorman quickly stopped the car.

After as careful and close an analysis of the evidence as it was
possible for us to make, we think that the weight of the testimony is
with the defendant.

Plaintiff’s theory that the little boy was standing on the track,
between the rails, and that the motorman ought to have seen him, is
not sustained by the evidence of his own witnesses; they do not
testify, with any degree of certainty, where he was just preceding the
accident. The witnesses for the defendant agree in stating that he was
not on the track, and that the accident was occasioned by the sudden
act of the child.

Granted as contended by the plaintiff that the motorman did not see
the child before he was knocked down by the fender: if the child had
escaped his attention, because of his sudden and unanticipated act
itself, it becomes evident that the defendant is not liable. Whether
he was seen or was not seen by the motorman would not render the
defendant responsible, if owing to thoughtless impulse of the child he
brought about the accident by a sudden act which could not be foreseen
or guarded against by the motorman or any one else in charge of the
car.

This brings us to the question of contributory negligence. Courts are
averse to finding children guilty of contributory negligence, and are
readily and properly inclined to disregard the thoughtlessness natural
to boyhood, but accidents may happen for which the unconscious agent
may not be responsible.

The fact that a child may not be capable of contributory negligence
does not always render a defendant liable upon the mere proof of the
injury. The test is negligence _vel non_. If the defendant or the
defendant’s agent or employee was not negligent, it is not liable.

The only alternative, after the conclusion reached, is to set aside
the verdict.

The verdict and judgment are reversed, annulled and avoided.

The demand of plaintiff is rejected and his action dismissed at his
cost in both courts.[219]

HUTCHINSON _v._ ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY
ST. LOUIS COURT OF APPEALS, MISSOURI, APRIL 9, 1901.
_Reported in 88 Missouri Appeal Reports, 376._

Appeal from St. Louis City Circuit Court.

Plaintiff (respondent) was injured while driving on the track of the street railroad at the crossing of two streets. The car collided with the rear of his wagon. Plaintiff testified that he had been driving for some three hundred yards with the left wheels of his wagon inside the north rail. Defendant’s (appellant’s) testimony tended to prove that plaintiff did not drive on the track until he had either reached or was near the crossing, and that he then turned and drove onto the track, when the motor car coming up from behind collided with the rear of his wagon.

What is undisputed is, that he did not look back to see if a car was coming before attempting to cross, nor, according to his own testimony, after he drove onto the track three hundred yards or more to the east. He drove very slowly. There was testimony tending to show the motorneer in charge of the car was watching a train on the railroad just south of Manchester avenue, which inattention prevented him from observing plaintiff’s perilous position until the car was within twenty or thirty feet of the wagon. He was required by a city ordinance, to be watching the track.

The evidence as to the warning of the car’s approach was conflicting.

The plaintiff was entitled to the use of the entire street, and, therefore, was not a trespasser, while the defendant was entitled to the right of way.

Failure to signal the car’s approach was omitted from the instructions. The only ground of recovery submitted to the jury was alleged negligence of the defendant’s motorneer in not using ordinary care to avoid injuring plaintiff after he knew, or by the proper care might have known, the latter was in a dangerous position. One instruction was given that plaintiff was guilty of contributory negligence if he failed to look back at reasonable intervals to see if a car was coming and to get off the track if he saw one. This was practically telling them he was actually negligent, for he admitted he did not look back.

GOODE, J. The general principle on which the case was referred to the jury, commonly styled the humane doctrine, is well supported by authorities. It is accepted in some form in most of the state and federal jurisdictions. So far as this court is concerned, the rule is no longer debatable. All uncertainty about it being a substantive part of the law of torts has been set at rest by recent deliberate pronouncements of the Supreme Court. The authority of the rule is not impugned by the learned counsel for the appellant, who only insist that it is inapplicable to the cause in hand on account of the plaintiff’s clear contributory negligence which continued to the moment of the collision. This contention requires a brief examination of some cases in which the doctrine has been applied. They divide into two classes and the disputation which has raged over it has been on the border line between the two. As enforced in one class, the rule has always seemed to the writer to be a phase of the doctrine of proximate cause, consistent with the theory of the entire law of negligence and without which the system would be incomplete. These instances are where the plaintiff’s negligent act was detached from the injury so that the defendant’s want of care was the sole active agency in inflicting it. When an accident happens under such circumstances, the plaintiff ought not to be refused a recovery because, though remiss, his fault does not contribute to the injury. Illustrations of this class of cases are numerous in the books, beginning with the one from which all the others proceeded. Davies _v._ Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his beast in the highway and the defendant’s servant drove over him. It is manifest that the original negligence of the owner was separated from the injury, which was proximately caused solely by the defendant’s tort. Another apt illustration is found in the Reardon case (114 Mo. 384), where the plaintiff carelessly went on the railway track and fell in endeavoring to get off when he saw a train coming. It was held that if the engineer failed to employ ordinary care to stop the train when he saw him prostrate, the company was liable. The same ruling has been made in actions where plaintiffs had fallen asleep on tracks or become fastened in cattle guards or switches or where the person hurt was a child or otherwise not of full legal capacity (Gabel _v._ Railway Co., 60 Mo. 475). The doctrine is exclusively met with, so far as our reading has shown, in controversies arising from injuries due to violent impacts and collisions. The above instances exemplify its use in such cases where properly expounded, it does not clash with the doctrine of contributory negligence, though some of the applications made have laid it open to that charge. The reconciliation and harmonious working of the two rules may be achieved by considering closely whether the defendant’s carelessness was alone the proximate cause of the injury. If only the defendant’s was the proximate cause, the plaintiff, while guilty of negligence, was not guilty of contributory negligence; his failure to use care did not proximately contribute to the mischief. Time elapsed between his wrongful act and the injury, during which the wrongful act of the defendant supervened or entered, as a separate agency, which, by its own independent action, wrought the unfortunate result. If, however, the plaintiff’s want of care continues to the instant of the accident, or so near the instant as to be immediately influential in producing it, he is as much to blame as the defendant, and if the latter is compelled to compensate him, the theory of the law of negligence is thus far abandoned. When it is deemed expedient to allow a recovery under such circumstances, it must be done as a measure of public policy. The rule then becomes, in fact, an exception to the law of contributory negligence, as was said in Kelly _v._ Railway Co., 101 Mo. 67. The real basis of it, as it obtains in many jurisdictions in respect to injuries by cars and locomotives when the injured individual was negligent to the very instant of the collision, is to be sought, on an ultimate analysis, in its supposed necessity for the public security. The guilt of the plaintiff is excused, while that of the defendant is punished. In such instances, its administration in cases of injuries by cars and engines is attended with serious difficulty, viz.: determining when the employees of the railway company may be justly said to have had notice that the injured party was in a position of danger. Persons frequently remain on railway tracks when a car or train is approaching, until it would be impossible to stop it in time to avoid striking them, but easily get off themselves in time. Accustomed to take care of their safety where cars are constantly moving, they grow dexterous in avoiding them and run risks. Engineers and motormen have a right to presume an individual travelling on the track will leave it, and to act on that presumption until his situation becomes alarming. Riley _v._ Railway Company, 68 Mo. App. 661. Just when this happens must often be largely conjectural, which circumstance weighs heavily with many against the rule in question.

The doctrine in its wider scope prevails in this State. The plaintiff may recover, notwithstanding his negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was sustained, this language is spoken: “There can be no doubt, under the evidence, that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants in charge of the train, _and the negligence of the deceased himself contributing thereto_.” Similar expositions have been made in many other cases. Schmidt _v._ R’y Co., 50 S. W. 921; Klockenbrink _v._ Railway Co., 81 Mo. App. 351; Cooney _v._ Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in Hogan _v._ R’y Co., 150 Mo. 36. We must follow the latest controlling decision. The Morgan case was decided in banc.