Cody v. New York & N.E.R. Co.

• Decision Date: 10 May 1890
• Citation: 151 Mass. 462,24 N.E. 402
• Parties: CODY v. NEW YORK & N.E.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 462

24 N.E. 402

CODY v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1890

COUNSEL

S.B. Allen, for plaintiff.

H.E Bolles, R.M. Saltonstall, and R.D. Weston-Smith, for defendant.

OPINION

DEVENS J.

It was admitted that the collision between the train on which the plaintiff was a passenger and another train, coming in the opposite direction, occurred through the negligence of defendant's servants. The question for the jury was only whether the plaintiff was himself in the exercise of due care, or was guilty of negligence which contributed to his injury. The plaintiff had taken his seat in that portion of the compartment-car, used also for the baggage, which was appropriated to smokers, and was reading his paper when the train started. He did not at first notice that the train had commenced its journey, but after it was fairly under way observed it, and was aware, from his knowledge of the time of the trains, that it was in serious danger of a collision which might occur at any moment. He threw down his cigar, passed into the baggage portion of the compartment-car, stood at the door with his hand upon the knob prepared to jump, and did jump just before the two trains collided. If a passenger is in so dangerous a situation, by reason of the peril arising from an accident, for the occurrence of which those who undertake to transport him are responsible, as to render his jumping a reasonable precaution, and is injured thereby, they are answerable to him in damages, even if he might safely have retained his seat. Ingalls v. Bills, 9 Metc. 1; Sears v. Dennis, 105 Mass. 310; Worthen v. Railway Co., 125 Mass. 99; Linneka v. Sampson, 126 Mass. 506.

It is the contention of the defendant that the action of the plaintiff, in going into the baggage compartment, shows a lack of due care on his part which should prevent him from maintaining this action; that he was wrongfully there without any justifying emergency; and thus that he assumed all the risks incident thereto. Bates v. Railroad Co., 147 Mass. 255, 265, 17 N.E. 633. The plaintiff did not go into the baggage compartment for the purpose of being there transported, but in order to do something to save himself if a collision occurred. He was accustomed to the management of railroads, had often worked upon them, and might expect that he could, with a reasonable chance of safety, leap from the train when collision was imminent. The defendant urges that as by his own admissions it appears that plaintiff knew that the place he assumed was more dangerous than...