Kambour v. Boston & M. R. R.

• Decision Date: 04 March 1913
• Citation: 86 A. 624,77 N.H. 33
• Parties: KAMBOUR v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

86 A. 624

77 N.H. 33

KAMBOUR

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Grafton.

March 4, 1913.

Transferred from Superior Court, Grafton County; Pike, Judge.

Action by Edward B. Kambour against the Boston & Maine Railroad. Case transferred from the Superior Court after a verdict for plaintiff on defendants' exceptions to the denial of a motion for a directed verdict, and to a remark of plaintiff's counsel in the closing argument. Exceptions overruled.

The plaintiff was less than 14 years old at the time of his injury. He lived in Blair and attended school in Plymouth, riding back and forth every day over the defendants' road. The train on which he came to Plymouth usually slackened speed at a crossing near the school, and when that happened the plaintiff and several other boys would jump off. The plaintiff jumped from the train on the morning of the accident, fell under a car, and received the injury for which he seeks to recover. He knew that if he jumped he might be injured, but did not think such a result was probable. The defendants knew that the boys were accustomed to jump off at the crossing and that such practice was dangerous, but did nothing to prevent it.

Alvin F. Wentworth, of Plymouth, and Martin & Howe and Remick & Jackson, all of Concord, for plaintiff.

Burleigh & Adams, of Plymouth, and Branch & Branch, of Manchester, for defendants.

YOUNG, J. The defendants insist that the court erred in denying their motion for a directed verdict because, as they say, it conclusively appears: (1) That the plaintiff assumed the risk of his injury; (2) that they were free from fault; and (3) that he was guilty of contributory negligence.

1. Although the plaintiff did not think it was dangerous to jump from the train when and as he did, he knew that if he jumped he might be injured; that is, although he did not know how dangerous jumping from a moving train really was, he knew it was accompanied with more or less danger. From this, the defendants say, it follows that he cannot recover, even though he was free from fault and the accident would not have happened but for their failure to perform a duty the law imposed on them for his benefit. They base their contention on the proposition that there is a principle of the common law which prevents one who is injured while voluntarily encountering a known danger from recovering any loss or damage he may sustain from those whose misconduct caused his injury, regardless of the fact that the ordinary man would have done what he did; in other words, they say that the rule which permits a person to recover whatever loss or damage he may sustain from those whose misconduct caused his injury (Nashua, etc., Co. v. Railroad, 62 N. H. 159, 161) is a rule of limited application. The question, however, is not as to the force and effect of that rule, but as to whether the principle for which the defendants contend prevents passengers, who are free from fault, from recovering for a loss caused by a carrier's failure to perform a duty the law imposed on him for their benefit, simply because they knew of his failure and voluntarily encountered the risk incident thereto. The question, therefore, on this branch of the case is whether the fact that a passenger is injured while voluntarily encountering a known danger is conclusive of his right to recover, when it is not conclusive of either his fault or the carrier's freedom from fault. It will be of assistance in considering this question to remember just what the defendants' contention is, and that the reason they say passengers cannot recover, when it appears they know of the danger and fully appreciate the risk, is because these facts operate to relieve the carrier from a consequence that would otherwise result from his misconduct, and not because these facts are conclusive of either their fault or his freedom from fault.

If the defendant's contention is sound, the mere fact that a person voluntarily encounters a known danger makes him an outlaw, in so far, at least, as those responsible for the danger are concerned. They concede this when they say these facts operate "to relieve a defendant from consequences which would otherwise result from his negligence." Since this is the effect of the defendants' principle, it is improbable that it is a rule; of the common law. In fact, the mere statement of their position ought to be enough to demonstrate its absurdity. The defendants, however, insist not only that there is such a principle, but that it is a rule of universal application. To sustain their contention, they rely on an article in 20 Harv. Law Rev. 14, entitled "Voluntary Assumption of Risk," cases holding that servants assume the risk of all injuries caused by the known dangers of the service, the maxim, "Volenti non fit injuria," and cases in which the facts that the plaintiffs were injured while voluntarily encountering a known danger and were not permitted to recover are the only ones they have in common. The defendants' first contention is based on the proposition that, if one notifies those who come on his premises by his invitation of all the dangers incident to the visit of which he does and they do not know, they cannot recover. According to the defendants, the principle which produces this result is the same as the one which permits a person to relieve himself by contract from the consequences of his misconduct and is tersely expressed in the maxim, "Volenti non fit injuria." It has been held in this state that a person cannot relieve himself from liability for the consequences of his future misconduct by a contract freely and fairly made. Piper v. Railroad, 75 N. H. 228, 72 Atl. 1024; Baker v. Railroad, 74 N. H. 100, 65 Atl. 386, 124 Am. St. Rep. 937, 12 Ann. Cas. 1072; Peerless Mfg. Co. v. Railroad, 73 N. H. 328, 61 Atl. 511. This tends to prove that the defendants' principle is no part of the common law of this state. But, passing that for the present, the defendants' contention, briefly stated, is that a pessenger (or, for that matter, any one who is injured by the misconduct of others) is remediless if he knew of the danger and voluntarily encountered it. Is there such a rule of the common law?

It has been held in this state that servants who are free from fault cannot recover for injuries caused by their master's failure to maintain the things he provides for their use in the condition the statutes make it his duty to maintain them (Allen v. Railroad, 69 N. H. 271, 39 Atl. 978), or in that the ordinary man would maintain them (Hicks v. Paper Co., 74 N. H. 154, 65 Atl. 1075), if the servants knew of his failure, fully appreciated the risk incident thereto, and voluntarily encountered it. Leazotte v. Railroad, 70 N. H. 5, 45 Atl. 1084. These cases are relevant to the defendants' contention, but their weight depends upon why a recovery was denied; that is, whether it was denied because assumption of risk is purely a matter of contract (Olney v. Railroad, 71 N. H. 427, 431, 52 Atl. 1097), or because the only duty the law imposes upon a master for the benefit of his servants, in so far as his instrumentalities are concerned, is to notify them of the dangers of the service of which he does and they do not know (Bennett v. Woodworking Co., 74 N. H. 400, 68 Atl. 460), or whether, as the defendants contend, it is because these facts operate to relieve the master from a consequence that would otherwise result from his misconduct. If assumption of risk is purely a matter of contract, or by it is intended that a master owes his servants no duty in so far as the known dangers of the service are concerned, the doctrine has little or no tendency to sustain the defendants' contention.

It will be useful, however, before considering these questions, to review briefly the history of the development of the remedies the law gives to one who has been injured by the acts of others, especially the history of the action of case. The original remedy for such injuries was an action of trespass. This gave the injured person a recovery both when his injury was intentionally, and when it was negligently, inflicted. Wigmore, Tort. Respons.; 3 Select Essays, 474, 504. At that time the law looked at the consequences of an act rather than to its character or the intent with which it was done. Jenks, Theory of Torts, 19 Law Quarterly Rev. 19, 25. This remedy was not available unless the plaintiff's injury was the direct result of force applied to his person or property without his permission. There could be no recovery if the injury resulted indirectly from the act or if the plaintiff consented to the doing of the act which caused the injury. This was the law previous to 1285, when a statute was enacted permitting the chancellor, when none of the old writs was applicable, to frame new ones in consimili casu. Thayer, Ev. 66. After the passage of this statute, the court permitted those who were injured because of (but not directly by) the acts of others to recover in case whenever they could have recovered in trespass if their damage had resulted directly from the act complained of. The court held such an injury to be similar to a trespass. For example, before the passage of the statute, if builders threw a log from a window and it struck a person in the street, he could recover; if, however, he fell over the log, he was remediless; but, after its enactment, he could recover in either case. Reynolds v. Clarke, 1 Str. 634, 636. Although the statute, as thus construed, increased the number of actionable wrongs, one who was injured by the acts of those exercising any of the common trades or professions could not recover, no matter how negligent they might be. But before the sixteenth century the court had so modified its construction of the statute that one who was injured could recover. One of the first recorded instances in which the broader rule of liability was applied was a suit for drowning a horse through the misconduct...