McGill v. Maine & New Hampshire Granite Co.

46 A. 684, 70 N.H. 125

Opinion

Parsons, J.

The jury were instructed that the defendants were bound to exercise reasonable care to ascertain by proper inspection or examination that the cars were safe for the use which the defendants required their employees to make of them. To this instruction the defendants excepted, and requested an instruction that a shipper is not responsible for the construction of a ear received from a railroad company in the ordinary course of business, unless there is a plain defect that could be discovered by reasonable diligence. The question, if raised by the foregoing, whether the rule applicable to railroad companies, requiring inspection of the cars of other companies used for transporting freight, is or not applicable to persons upon whose sidings cars are delivered for loading or unloading, was decided adversely to the plaintiff in McMullen v. Carnegie, 158 Pa. St. 518, while in Spaulding v. Granite Co., 159 Mass. 587, a rule more favorable to the plaintiff than that included in the instructions given was approved. But in the view we take of the case we have not found it necessary to consider this question.

“ As a matter of course there can be no negligence where there is no duty.” Shearm. & Red. Neg., s. 15. It must appear, to render the defendants liable, that the action or omission to act, of which complaint is made, constituted a breach of a duty owed the plaintiff by the defendants. Conceding that a duty of inspection rested upon the defendants, such duty arises from the familiar principio that the master is bound to exercise due care to furnish the servant with such appliances for his work as are suitable and may be used with safety. Such duty is owed only to the servants required, or permitted, or, in the course of the business, expected to make use of the instrumentalities provided. • If the failure of inspection was a breach of duty to the employees at the stone crusher, who were required to move the cars, such failure was no breach of any duty owed by the defendants to a stranger, or to McGill, who “had nothing to do with the work at the crusher.” So far as appears, all the appliances furnished McGill for his work were safe and suitable. No harm came to him in his use of such as -were furnished him. Neither did the defective brake or the running away of the cars render his place of work unsafe, or put him in danger in going to or returning from his work, or endanger his safety in the course of the employment for which he was hired. He was foreman of the granite shed and yard. Farther up on the siding running through the yard was the stone crusher in charge of another foreman. When McGill observed the cars running away, he was in a place of safety. Me was not responsible for the escape of the cars. He was not required by the direction of Ms employer or the nature of his employment to take any steps in the matter. His subsequent injury, arising from his unauthorized action, without request in fact or by im plication from tlie defendants, and not from any breach of duty owed him by the defendants, does not sustain a charge of negligence against them. Where the servant voluntarily and without directions from Ms master, and without Ms acquiescence, goes into hazardous work outside his contract of hiring, he puts Mmself beyond the protection of the master’s undertaking; and if he is injured, he must suffer the consequences. Pittsburg etc. Ry. v. Adams, 105 Ind. 151, 164; Brown v. Byroads, 47 Ind. 435; Mellor v. Merchants’ Mfg. Co., 150 Mass. 362; Evarts v. Railway, 56 Minn. 141,—22 L. R. A. 663, and notes.

In what McGill did in pursuit of the runaway cars, he acted, not as the servant of the defendants in the course of his employment, but as a mere volunteer. One who, without request, of Ms own motion voluntarily puts himself into a place of danger cannot recover for any injury which may result from his own act. Pike v. Railway, 39 Fed. Rep. 255; Church v. Railway, 50 Minn. 218, — 16 L. R. A. 861, and notes. Assuming that the dangerous situation — the cars beyond control upon the descending grade — was created by prior personal negligence of the defendants, the only question upon the view most favorable to the plaintiff is whether McGill, by the exercise of ordinary care, could have escaped-injury to himself. If he could, the plaintiff cannot recover. Nashua Iron and Steel Co. v. Railroad, 62 N. H. 159, 162. In such ease the defendants are not liable, for the same reason that they could recover from McGill in case of injury to themselves or their property from Ms wrongful interference, because their antecedent negligence- furnished merely the occasion, wliile McGill’s want of care would be the responsible cause, of the injury which would not have occurred except for his fault. Davies v. Mann, 10 M. & W. 546. Upon the question whether McGill, by the exercise of due care, could have escaj>ed injury, the evidence presents nothing for submission to the jury. Reasonable men can come to but one conclusion upon the question. Hardy v. Railroad, 68 N. H. 523. He was in a place of safety, threatened with no danger. He did not suddenly find himself “ in a situation of danger, whatever action he might take.” Folsom v. Railroad, 68 N. H. 454, 460. He was under no obligation to act. His case is the same as that of any bystander or stranger who happened to observe the escaping cars. But the case does not stop here. To prevent cars that might start upon the descending grade escaping to the main line, and to guard against the serious result likely to follow such occurrence, the defendants had provided a switch in the siding, which was usually kept open so that cars wMch might run away should be derailed before reaching the main line. The switch was open upon this occasion. McGill ran ahead of the first ear and closed the switch, so that the car, instead of being derailed, followed on toward the main line. McGill then, without opening the switch or observing whether other cars were coming,— a fact which the case shows he must have learned if he had looked,— ran after the first car, and was run over by 'the second car which followed over the switch as left by him. He was injured, not only because he voluntarily went into danger from a place of safety to perform a work that was not his to do, but because, upon the occasion for which the defendants had devised a safeguard, he by his own act rendered such safeguard inoperative. Undoubtedly with the best of motives, for the purpose of preventing the slight loss which would result from dumping- the car at the switch, and probably confident of his ability to catch and stop the ear before it reached the main line, he voluntarily took the risk of the greater danger. By whatever cause the cars were originally set in motion, he wrongfully turned them from - a comparatively safe course to one fraught with great danger, and assumed the responsibility for what might follow. That he was injured by the car following gives him no more claim against the defendants than if, having reached and been unsuccessful in stopping the first car, he had been injured in a collision with a train upon the main line.

After McGill placed himself upon the track in pursuit of the moving car, the defendants were still bound to exercise ordinary care to avoid injuring him. They could not without liability carelessly or negligently run upon or injure him. Felch v. Rail road, 66 N. H. 318; Evarts v. Railway, 56 Minn. 541. But there is no evidence that the defendants or their servants, by the exercise of any degree of care, could have prevented the injury, either by warning him of the second car or by opening the switch which he had closed. It is clear from the case that they could not have prevented the injury after McGill had put himself in the place of danger. If there might be question whether for McGill’s unauthorized act beyond the scope of his employment, without request and against the defendants’ directions, the defendants might not be liable to third persons injured thereby (Andrews v. Green, 62 N. H. 436; Fredericks v. Railroad, 157 Pa. St. 103,— 22, L. R. A. 306), there can be no question that they are not liable to him or to liis administratrix for an injury to him resulting from his own act. The question of remote and proximate cause is generally for the jury. Boothby v. Railway, 66 N. H. 342; Stark v. Lancaster, 57 N. H. 88; Gilman v. Noyes, 57 N. H. 627. This proposition, however, is necessarily subject to the limitation affecting the submission of all questions of fact to the jury : that if on the evidence reasonable men can come to only one conclusion, there is no question for their decision. Pike v. Railway, supra; Deschenes v. Railroad, 69 N. H. 285. Whatever the cause of the escape of the cars, McGill’s act was a wrongful, responsible, intervening force which was the proximate cause of his own injury. State v. Railroad, 52 N. H. 528, 552; Gilman v. Noyes, supra; Cool. Torts 68-70. Upon the evidence no other conclusion is reasonable. The submission of the case to the jury was error. The verdict for the plaintiff must be set aside and a verdict entered for the defendants.

Exception sustained : judgment for the defendants.

Wallace, J., did not sit: the others concurred.