Wheeler v. Grand Trunk Ry. Co.

• Decision Date: 15 March 1901
• Citation: 50 A. 103,70 N.H. 607
• Parties: WHEELER v. GRAND TRUNK RY. CO.
• Court: New Hampshire Supreme Court

50 A. 103

70 N.H. 607

WHEELER

v. GRAND TRUNK RY. CO.

Supreme Court of New Hampshire. Coos.

March 15, 1901.

Exceptions from Coos couuty.

Action by Elmer T. Wheeler against the Grand Trunk Railway Company. There was a judgment for plaintiff, and defendant brings exceptions. Overruled.

Case for negligence. The declaration was as follows: In a plea of the case for that the defendants are a corporation owning and operating a railroad between Berlin and West Milan in said county of Coos, and are common carriers of passengers and freight; that the plaintiff on, to wit, April 20, 1896, being in an intoxicated condition, and unable to take due and proper care of himself, was received by the defendants as a passenger on said railroad by the defendants; that the defendants' employes had knowledge of the plaintiff's said condition, but permitted him to ride unguarded in the baggage car of said train, dancing and staggering near and between the two open side doors of said baggage car, and that after knowledge of the plaintiff's condition as aforesaid, and of his proximity to and danger from falling out of said doors, the defendants were able to prevent the plaintiff falling out of the same by the exercise of proper care; that by reason of the negligence of the defendants' employes in so receiving and not properly caring for the plaintiff after they knew his condition and danger he was thrown from said train and injured. The defendants demurred, assigning as grounds: (1) That the declaration did not set forth a legal cause of action; (2) that it did not allege that the plaintiff was in the exercise of due care; and (3) that the declaration sets forth acts and conduct on the part of the plaintiff at the time of the injury complained of which in law amount to contributory negligence. The demurrer was overruled, subject to exception. The plaintiff offered evidence tending to support the allegations of the declaration. The defendants' motion that a verdict be directed for them was denied, subject to exception. The defendants excepted to an instruction that the defendants were chargeable with the knowledge their conductor and baggage man had, both as to the plaintiffs condition and danger, and excepted generally to the charge as given. They also excepted to the refusal to give certain instructions requested in writiug by them, the substance of which was that, if the jury found that the plaintiff himself was negligent, and that his negligence materially contributed to produce the injury complained of, he could not recover.

Crawford D. Hening and Albert S. Twitchell, for plaintiff.

Chamberlin & Rich and Clarence A. Hight, for defendants.

PARSONS, J. If the position occupied by the plaintiff at the time of his injury was dangerous to one in full control of his bodily powers, or dangerous to the plaintiff only because of his lack of such control, the plaintiff's own act produced the dangerous situation from which his injury resulted. If his failure to exercise the care of a person of ordinary prudence placed him in this situation, dangerous to him on either ground, the fact of his intoxication would not excuse him. If his act would have been negligence in a sober man, he was none the less guilty of negligence if intoxicated. For an injury resulting from prior or concurrent negligence of the defendants, to which his negligence contributed, he could not recover. But if the defendants, with knowledge of the plaintiff's danger, in the performance of the duty owed by them could have prevented the injury, they were bound to do so; and their breach of duty would be the legal cause of the injury, unless at the time of the injury the plaintiff, by the exercise of due care, could have avoided it. If the plaintiff could not have prevented the injury to himself, and the defendants could, by the care the situation required of them, they are liable if they did not, although the plaintiff's inability resulted from his prior negligence or intoxication. "If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter * * * is the cause of the danger; the former is the cause of the injury." Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 164; Coasting Co. v. Tolsen, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270; Railroad Co. v. Ives, 144 U. S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. 485; State v. Manchester & L. R. Co., 52 N. H. 528, 537; Brember v. Jones, 67 N. H. 374, 30 Atl. 411, 20 L. R. A. 408; 1 Shear. & R. Neg. §§ 99, 100; Cooley, Torts, 674; Pierce, R. R. 374. The plaintiff was not a trespasser to whom the defendants owed no duty except not actively to injure him. Buch v. Manufacturing Co., 69 N. H. 257, 44 Atl. 809, 76 Am. St. Rep. 163. If he were, in spite of his prior misconduct the defendants would be liable for negligently running upon him. Eagerly v. Railroad Co., 67 N. H. 312, 36 Atl. 558. He was the defendants' passenger. Upon them was imposed the duty of carrying him safely, so far as it could be done by the exercise of the care demanded by the circumstances. Taylor v. Railway Co., 48 N. H. 304, 2 Am. Rep. 229. Whether the defendants, knowing the plaintiff's dangerous position, and his incapacity to protect himself or to appreciate the danger, could have prevented the injury, is a question of fact. Whether, under the circumstances, the care Which the defendants owed the plaintiff was such that, by its exercise, the injury would have been prevented, was also a question for the jury. Town of Monroe v. Connecticut River Lumber Co., 68 N. H. 89, 93, 39 Atl. 1019. The defendants* answer is that the plaintiff's incapacity was produced by his voluntary intoxication. But, if it were established that the plaintiff's incapacity and irresponsibility were known to the defendants, the cause of his condition is entirely immaterial. Intoxication will not of itself prevent a recovery. It will not excuse the plaintiff's nonexercise of care, and will not prevent his recovery if he exercised such care as the law required. Maguire v. Railroad Co., 115 Mass. 239; Alger v. City of Lowell, 3 Allen, 402; Kean v. Railroad Co., 61 Md. 154, Railroad Co. v. Cooper, 120 Ind. 409, 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334; Wood, R. R. § 319a; Beach, Contrib. Neg. § 146; 1 Shear. & R. Neg. §§ 93, 94; Pierce, R. R. 295; 2 Jagg. Torts, 1091; Busw. Pers. Inj. § 147. The declaration alleged the plaintiff's incapacity to care for himself, the defendants' knowledge of that fact and of the dangerous position he was in, their ability to prevent the injury by due care, and their failure to do so, and that the plaintiff's injury was due to the defendants' breach of duty. These facts constituted a cause of action, and the demurrer was properly overruled. It was conceded on argument that the formal allegation of the plaintiff's due care or absence of fault was unnecessary. Upon the questions of fact presented to the jury there was evidence tending more or less strongly in favor of the plaintiff's contentions. The motion for a verdict was properly denied. The general exception to the charge is unavailing without a specification calling the attention of the court to the particular error, that it may be corrected. Emery v. Railroad Co., 67 N. H. 434, 36 Atl. 367. A special exception was taken to the instruction that the defendants were chargeable with the knowledge of their conductor and baggage man. The defendants, a corporation, could act only through agents and servants, and the individuals named were in charge of its business on this occasion. The conductor was in charge of the train, and the baggage man of the car in which the injury happened. The instruction was proper.

The defendants requested the court to instruct the jury that if they found "that the plaintiff himself was negligent, and that his negligence materially contributed to produce the injury complained of, he cannot recover." This request was repeated in various forms involving the same principle of law. The instruction was not given in the form requested. The instruction asked correctly states an elementary legal proposition, and the question is whether the rule asked for was in substance, so far as it was applicable to the evidence, included in the instructions given. We think that it was. When proper instructions are given, it is no ground of exception that they are not given in the form requested. Walker v. Walker, 64 N. H. 55, 5 Atl. 400. If a request to charge the jury states a proposition true in general, but not so in its application to the case on trial, the instruction should not be given. Atherton v. Tilton, 44 N. H. 452, 456; Clark v. Wood, 34 N. H. 447, 453. The contentions of the defendants are: (1) That such contributory negligence conclusively appears upon the evidence; and (2) if this contention is not sustained, that the specific instruction requested should have been given. It may be assumed that the plaintiff was negligent and careless in boarding the defendants' train if his intoxicated condition, and in occupying, in that condition, up to the moment of the accident, the exposed position which he did in the baggage car. This appears to have been conceded at the trial. The question is, did this negligence, in a legal sense, contribute to the injury? If it did, the defendants are entitled to a verdict. The jury were instructed in part as follows: "In this case the plaintiff must show you that he was so much under the influence of liquor or so drunk at the time the accident happened that he was irresponsible, or incapable of taking care of himself under the circumstances in which he was placed; that the...