Opinion
Decided April 1, 1902.
In an action for negligence by an administrator, the plaintiff is not entitled to recover if the intestate by the exercise of ordinary care could have avoided an injury resulting from dangerous forces continued in action through the defendants' fault.
CASE, for causing the death of the plaintiff's decedent (Beede) by negligence, while he was trespassing upon a bridge on the defendants' line of road. Trial by jury and verdict for the defendants. Transferred from the November term, 1901, of the superior court by Peaslee, J.
On the west side of the track across the bridge there was not sufficient room for a man to stand when a train passed unless he got down upon the projecting end of a pier. On the east side there was a walk and ample room. The engineer of a locomotive drawing a train, when some 900 feet from the bridge, saw Beede standing on the bridge, west of the track, and then supposed he would get out of danger. Shortly thereafter, the engineer saw him standing on the extreme westerly edge of the bridge, facing and looking at the train, and apparently intending to remain in that position until the train passed. The engineer testified that he thought there was sufficient room to pass in safety, and so made no effort to slacken the speed of the train; and that he could have slackened it materially if he had applied the brakes when he first saw Beede. The train crossed the bridge at a speed of about thirty-five miles an hour, and struck and killed Beede. The deceased was forty-nine years old, in the full possession of his faculties, and on this occasion constantly observed the approaching train.
The jury were instructed that if, after the engineer saw that Beede intended to remain where he was, there was reason to believe he would be injured, and that in the exercise of reasonable care the engineer should therefore have slackened his speed and so prevented the accident, the defendants were in fault. They were further instructed that if, during the time just before the engine struck him and practically up to the time of the collision, Beede could, and, if he had exercised reasonable care, would have stepped out of danger, either by getting down upon the pier or stepping across the track to the walk, then his own negligence was so far a part of the cause of the accident that the plaintiff could not recover. To the latter instruction the plaintiff excepted, upon the ground that such negligence by Beede would not be the proximate cause of the accident if the engineer could have avoided it after he discovered Beede's intention to remain.
Shannon Young and E. A. C. B. Hibbard, for the plaintiff.
Jewett Plummer and Frank S. Streeter, for the defendants.
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.