Wheeler v. Grand Trunk Railway Co.

50 A. 103, 70 N.H. 607

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1900
• Status: Published

Opinion

Parsons, J.

If tbe position occupied by tbe plaintiff at tire time of his injury was dangerous to one in full control of bis bodily powers, or dangerous to the plaintiff only because of Ms lack of such control, tlie plaintiff’s own act produced tbe dangerous situation from which his injury resulted. If Ms 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 Ms intoxication would not excuse him. If his act would have been negligence in a sober man, lie was none tlie less guilty of negligence if intoxicated. For an injury resulting from prior or concurrent negligence of the defendants to which liis negligence contributed, lie could not recover. Put if tlie defendants, with knowledge of the plaintiff’s danger, in the performance of tlie duty owed by them could have prevented the injury, they were bound to do so; and tlieir breach of duty would be tbe legal cause of the injury unless at tbe time of tbe injury tbe plaintiff by tbe exercise of due care could liave avoided it. If the plaintiff could not liave prevented tlie injury to himself, and the defendants could by tbe care tlie situation required of tliem, 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 and Steel Co. v. Railroad, 62 N. H. 159, 164; Inland etc. Co. v. Tolson, 139 U. S. 551, 558; Grand Trunk R’y v. Ives, 144 U. S. 408, 429; State v. Railroad, 52 N. H. 528, 537; Brember v. Jones, 67 N. H. 374; 1 Shearm. & Red. Neg., ss. 99, 100; Cool. 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. Company, 69 N. H. 257. If he were, in spite of his prior misconduct the defendants would be liable for negligently running upon Mm. Edgerly v. Railroad, 67 N. H. 312. 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, 48 N. H. 304. Whether the defendants, knowing the plaintiff’s dangerous position and his incapacity to protect himself or to appreciate the danger, could havé 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. Monroe v. Lumber Co., 68 N. H. 89, 93, 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 non-exercise of care, and will not prevent his recovery if he exercised such care as the law required. Maguire v. Railroad, 115 Mass. 239; Alger v. Lowell, 3 Allen 402; Kean v. Railroad, 61 Md. 154; Cincinnati etc. R. R. v. Cooper, 120 Ind. 469; Wood R. R., s. 319a; Beach Cont. Neg., s. 146; 1 Shearm. & Red. Neg., ss. 93, 94; Pierce R. R. 295; 2 Tag. Torts 1091; Bus. Pers. Inj., s. 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 plamtiff’s injury was due to the déíendants’ 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, 67 N. H. 434.

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. 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.

If may be assumed that the plaintiff was negligent and careless in boarding the defendants’ train in 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 defendants knew of his condition at the time the accident happened ; and that after they knew of the plaintiff’s condition and his danger they could have prevented the accident .by the exercise of due care. If the plaintiff fails to satisfy you of any of these facts, his case falls. When a man in his seirses exposes himself voluntarily to apparent danger, he is not in the exercise of that care wMch the law makes it the duty of every man to take to prevent injury to himself; and drunkenness will not relieve the plaintiff from the exercise pf the care required of people in general. But while drunkenness will not excuse the exercise of due care on the plaintiff’s part, still, if the plaintiff was so completely under the influence of liquor or so drunk at the very time of the accident that he was irresponsible or incapable of taking care of himself, and the defendants knew of his condition and danger in time to prevent the accident, and did not use due care to prevent it, they were in fault. ... In this case, while the defendants were not under obligation to accept the plaintiff as a passenger in the condition he tells you he was, still, if they did accept him when they knew he was so .much under the influence of liquor that he was irresponsible or incapable of taking care of himself under the circumstances hi winch he was placed, or if they permitted him to remain on their train after they became aware of his condition, it was their duty to use due care to prevent injury to him; and due care would be the exercise of such care as a reasonably prudent man would exercise, situated in precisely similar circumstances as the facts show you existed at the time of this accident. In this case, if the defendants knew the plaintiff’s condition, and could have prevented the accident by the exercise of due care, they are in fault; but if the defendants, after they knew of the plaintiff’s condition, could not have prevented the accident by due care, they are not in fault. This is predicated on the fact that you find that the plaintiff was so much under the influence of liquor that he was irresponsible or incapable of taking care of himself.”

These instructions clearly and forcibly stated the rights and duties of the parties, and the legal principles involved were repeatedly impressed upon the attention of the jury. The instructions assume, in effect, the plaintiff’s guilt of negligence in occupying the position he did at the time of the accident; for the jury were told that the plaintiff must fail unless at the time of -the accident he was incapable of taking care. What was said includes the instruction requested and more; for the request left it to the jury to say whether by the exercise of care at the time of the accident the plaintiff could have avoided the injury, while the charge assumed tliat by the exercise of care at that time he could have avoided the injury, because the jury were told that he could not recover unless incapable of care. Hence the charge was more favorable to the defendants than the requested instruction. It included that and more. Whether the charge is correct in assuming that a sober passenger who stands in an open baggage-car and does not keep himself from being thrown out by the lurch of the train is guilty of contributory negligence under all circumstances we need not inquire, because the defendants cannot complain of an error in their favor. Mandigo v. Healey, 69 N. H. 94, 96.

The question in the case is: Was the plaintiffs negligent conduct in becoming intoxicated, and placing himself, while intoxicated, in a position, where, by reason of his intoxication, he was incapable of preventing injury to himself, the legal cause of the injury? it must be conceded that the defendants were bound to exercise care for the plaintiff’s safety, having accepted him as a passenger. If in a given situation they could, by the exercise of the (‘are demanded by the situation, save him from harm which by like care he could not avoid, they are liable. One element requisite to the determination of the care required is the knowledge of the danger possessed by each party.

The plaintiff’s intoxication may be laid entirely out of the case, except upon that question. Take the ease of a sober passenger, standing between the open doors of a car, or dancing about in the car, who does not know that what he is doing is attended with danger, while the railroad officials standing by know both the danger and the passenger’s ignorance of it. It was decided in 1808, in Dudley v. Smith, 1 Camp. 167, that the driver of a stagecoach, before passing through any place that is dangerous, is bound to inform the passengers of the full extent of the danger; and if he proceeds without giving them this information, the proprietor is liable for any injury which they may suffer, which they might have escaped by alighting. The failure of the railroad employees to warn the passenger of the danger, to him to their knowledge unknown but to them known, would be clearly a breach of duty ■which would render the carrier liable for any injury due to the lack of warning. The case supposed differs from the present only in the fact that the plaintiff’s want of knowledge, incapacity, and irresponsibility were produced by his own negligence. But one’s inability to escape danger because of his own negligence does not authorize another negligently to injure him. “Tlie law no more . . . justifies an avoidable injury to the person of one who carelessly exposes himself to danger, than to his property similarly situated in his absence. He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent ‘ present and acting at the time ’ is legally without fault, and it is. immaterial whether Ms inability results from Ms absence, previous negligence, or other cause.” Nashua Iron and Steel Co. v. Railroad, 62 N. H. 159, 163; Brember v. Jones, 67 N. H. 374, 376. In such case the legal cause of the injury is not the negligence of the one carelessly exposing Ms person to injury which he cannot avoid, but the negligence of him who might have avoided the injury but did not.

It is urged that, as intoxication is no excuse for want of carer if the plaintiff was incapable of taking care of himself because he was drunk, he was simply failing to exercise due care without due excuse. TMs is only saying that he was negligent in occupying the position he did, in the condition he was in. But Ms negligence did not excuse or justify negligence in the defendants in their care of him.: and if by the exercise of due care they could have avoided injury to him, they were bound to do so, and their failure to do so, if they could, is the legal cause of the injury.

It is urged that the remaining in the car up to the very moment of the accident was negligence contmuing to the very moment of the accident. Up to the very time of the accident it is said the plaintiff could have ceased Ms dance. When things came to such a pass that he could no longer prevent the accident, which was not until the accident itself began to happen, it was too late for the defendants to interfere; that it was, at most, a case of coincident negligence, and therefore the rule of contributory negligence ought to have been given. It is conceded that the rule given at the trial might apply to the man asleep on the track, but not to this case. The' argument leaves out of consideration the material point of the defendants’ knowledge of the danger and of the plaintiff’s incapacity. If the negligence claimed was that the defendants negligently ran their train upon the curve at an excessive speed, whereby the plaintiff was thrown off,.the defendants being ignorant of the plaintiff’s peculiar danger, the plaintiff’s negligent occupation of an exposed position would defeat his recovery, if contributing to his injury. The rule as to contributory negligence', would apply. The plaintiff’s Mtoxication would be no excuse. If what he did or was doing would defeat the action of a sober-man, it would defeat him. To such a state of facts the defendants’ argument and request for instructions would be entirely applicable.

The present case, in principle, is exactly that of an intoxicated man who wanders upon the track without care for Ms safety. His intoxication does not relieve him from the result of Ms negligence, but it does not excuse the defendants for the breach of their duty not carelessly to injure him, nor authorize the engineer,. who sees him upon the track and knows he is incapable of saving himself, to run over and kill him. Kean v. Railroad, 61 Md. 154, 157. The failure of the drunken man to see and avoid the train at the time of the accident is not the legal cause of an injury which, in spite of his negligence, the engineer could have foreseen and avoided by ordinary care, as in Brember v. Jones, 67 N. H. 374, the negligence of the defendant in being upon the wrong side of the road at the time of the collision was not the legal cause of the injury, if the collision could have been avoided by the exercise of ordinary care by the plaintiff.

In this case the legal cause of the injury is not the plaintiff’s failure to care for himself when incapacitated to do so by his intoxication, if by the exercise of ordinary care the defendants could have prevented it. The plaintiff', to the defendants’ knowledge, being incapacitated from exercising any care, the question of contributory negligence is not involved. Bisaillon v. Blood, 64 N. H. 565. In this case the plaintiff’s irresponsibility and incapacity to take care, to the defendants’ knowledge, is the determining element upon the question of the care of both parties. The case was so put to the jury.

Tt is also claimed that the evidence does not warrant a finding that the plaintiff had so far lost his bodily powers as to be incapable of exercising care. Reference to the reserved case answers this claim. It is there stated that “the plaintiff’s evidence tended to show that ... he was received as a passenger by the defendants when so much under the influence of liquor as to be both physically and mentally incapable of taking care of himself.” Whether there was or not such evidence is a question of fact settled at the trial term. Edwards v. Tilton Mills, ante, p. 574; Gamsby v. Columbia, 58 N. H. 60.

It is conceded that the plaintiff was drunk. Whether his drunkenness so affected him as to render him incapable of appreciating or understanding the dangerous position in which he was, or of protecting himself from its hazards, although he was able to talk, laugh, sing, and dance about, is a question of fact and not of law. It cannot be said as a matter of law' that a man may not be able to do all that the plaintiff did, and still be so affected by the intoxicants of which he had partaken as not to appreciate or understand the danger of riding in a car with open side doors, or of stepping near the doors. The defendants took no precautions to guard their passenger; they did not even warn him of the danger to which he was exposed when they knew he was irresponsible and incapable of taking care of himself. The case does not present the question of the general duty of a railroad to take care to guard an intoxicated passenger from rushing into danger. The question is simply whether, knowing he is in clanger which he is incapable of understanding or guarding against, they are not bound to save him, if they can by ordinary care. Leaving out of •sight the immaterial fact of the cause of the plaintiff’s incapacity, the question is whether a jury may not find that, in the exercise of the care in transportation required of them, a railroad corporation, knowing that a passenger is in a dangerous position,— the danger of which he does not know, and which they know he is ignorant of and powerless to avoid,— are under obligation to do something to prevent the injury. To this question there can be but one answer upon reason and the authorities. N. & W. R. R. v. Ferguson, 79 Va. 241; St. Louis etc. R. R. v. Carr, 47 Ill. App. 353; Strand v. Railway, 67 Mich. 380; Fisher v. Railroad, 39 W. Va. 366,— S. C., 42 W. Va. 183. Whether the plaintiff’s intoxication was or was not in violation of the statute is immaterial upon the question of the defendants’ breach of duty. Brember v. Jones, sufra.

Fxceftions overruled.

Young, J., did not sit: the others concurred. ■