Kane v. Northern Cent Ry Co

• Decision Date: 22 October 1888
• Parties: KANE v. NORTHERN CENT. RY. CO
• Court: U.S. Supreme Court

128 U.S. 91

9 S.Ct. 16

32 L.Ed. 339

KANE v. NORTHERN CENT. RY. CO.

October 22, 1888.

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[Statement of Case from pages 92-93 intentionally omitted] Jas. H. Gable, for plaintiff in error.

Wayne Mac Veagh, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The circuit court proceeded upon the ground that contributory negligence upon the part of the plaintiff was so conclusively established that it would have been compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor. If the evidence, giving the plaintiff the benefit of every inference to be fairly drawn from it, sustained this view, then the direction to find for the defendant was proper. Insurance Co. v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. Rep. 18; Randall v. Railroad Co., 109 U. S. 478, 482, 3 Sup. Ct. Rep. 322; Anderson Co. v. Beal, 113 U. S. 227, 241, 5 Sup. Ct. Rep. 433; Goodlett v. Railroad Co., 122 U. S. 391, 411, 7 Sup. Ct. Rep. 1254. But we are of opinion that the question of contributory negligence should have been submitted to the jury. It cannot be said that the plaintiff was guilty of contributory negligence in staying upon Co. v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. Rep. observing that a step was missing from one of the cars over which he might pass while discharging his duties. An employe upon a railroad train, likely to meet other trains, owes it to the public, as well as to his employer, not to abandon his post unnecessarily. Besides, the danger arising from the defective car was not so imminent as to subject him to the charge of recklessness in remaining at his post under the condector's assurance that the car should be removed from the train when it reached the coal-yard or junction, if, upon examining his manifests, he found that it did not contain perishable freight. Hough v. Railroad Co., 100 U. S. 224; District of Columbia v. McElligott, 117 U. S. 621, 631, 6 Sup. Ct. Rep. 884. But it is said that the efficient, proximate cause of the injury to the plaintiff was his use of the defective appliances at the end of the car from which he fell, when he knew, and, at the moment of letting himself down from that car, should not have forgotten, as he said he did, that one of its steps was missing. 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, where such injuries substantially resulted from dangers so obvious and threatening that a reasonable prudent man, under similar circumstances, would have avoided them if in his power to do so. He will be deemed, in such case, to have assumed the risks...