Renner v. Northern Pac. Ry. Co.

• Decision Date: 20 April 1891
• Citation: 46 F. 344
• Parties: RENNER v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 344

RENNER v. NORTHERN PAC. RY. CO.

United States Circuit Court, D. Washington, Eastern Division.

April 20, 1891

Turner & Graves, for plaintiff.

J. M Ashton, for defendant.

HANFORD J.

Is a person traveling in a public street, and finding it obstructed by a freight train at a full stop, to which a locomotive is attached, and being informed by a brakeman on the train that he can safely climb over the bumpers, and pass between the connected cars, as the train will remain stationary for a considerable time, who, relying upon such assurance, does attempt to so climb over the train, and while in the act suffers an injury by reason of the train being started suddenly, and without previous warning being given either by ringing of the bell or sounding the whistle, guilty of such contributory negligence as to preclude him from recovering damages for such injury in an action against the company to which the train belongs? This question is raised by a demurrer to the complaint in this action. It is a question upon which there is a conflict of authority. The following decisions cited by the defendant's counsel sustain them in maintaining the affirmative: Railroad Co. v. Pinchin, 112 Ind. 592 13 N.E. 677, 35 Amer. & Eng.R.Cas. 383; O'Mara v. Canal Co., 18 Hun, 192; 2 Lacey, Dig.R.Dec. 770; and Andrews v. Railroad Co., (Ga.) 12 S.E. 213. There are also other cases similar in character, though not based upon the identical facts in this case, which, by analogy, support their position. Among others, the following may be cited: Smith v. Railroad Co., 55 Iowa, 33, 7 N.W. 398; Dahlstrom v. Railroad Co., (Mo.) 8 S.W.Rep. 777; and Lewis v. Railroad Co., 38 Md. 588. The contrary view is supported by the following text-books and decisions: 2 Shear. & R.Neg. § 479; Nichols v. Railroad Co., (Va.) 5 S.E.Rep. 171; Railroad Co. v. Sykes, 96 III. 162; and McIntyre v. Railroad Co., 37 N.Y. 287.

I find the question difficult to determine, not only by reason of the conflicting precedents, but because, in the light of reason, the case seems to be located exactly on the boundary line separating questions of law proper for the court to decide from the province of the jury as judges of all questions of fact. The plaintiff shows very clearly by the statements of his complaint that he must have been conscious at the time of attempting to climb over the train that he was thereby exposing himself to danger, and he voluntarily exposed himself to the danger of which he was thus conscious. The information given by the brakeman could not have been an assurance to him upon which he could prudently depend, for it was certainly apparent that the brakeman did not have such control of the train as warranted him in giving a positive assurance. I do not consider the rule that a person who voluntarily places himself in a position known to be dangerous is to be deemed to have assumed the ordinary risks incident to such position as applicable to this case, there being no contract relation between the parties. The defendant was a wrong-doer in suffering its train to obstruct the street, but that wrong was not necessarily productive of the injury to the plaintiff, of which he now complains. He would have no cause of action if this were the only wrong or negligent act chargeable against the defendant. The starting of the train suddenly, and without previous warning, at such a place, was a further wrong, and something which the plaintiff was not bound to anticipate when he attempted to climb over the train. Although he knew that in doing so he was incurring danger, he was not bound to anticipate the...