Abend v. Terre Haute & Indianapolis Railroad

Citations

• 111 Ill. 202

Syllabus

<p>1. Contributory negligence — what so regarded — and its effect on the right of recovery. Where an employe of a railroad company was sent on a wrecking train to assist in removing the debris of a wrecked train from the track, and instead of taking his seat in the car, in violation of a published rule of long standing entered the locomotive and took a seat with the fireman, just in front of the latter, where he remained until a collision took place with a freight train, and he was killed, it was held, that he was guilty of such negligence in taking an extra-hazardous place, as to bar any right of action by his personal representative, notwithstanding the negligence of the servant in charge of the train.</p> <p>2. It is not true, as a general proposition, that in actions for personal injuries caused by the defendant’s negligence, the contributory negligence of the injured party will constitute no defence except when the latter’s negligence is an element or factor in producing the force causing the injury complained of. It is sufficient if his negligence materially contributes to the injury, whether it contributes to the force causing the injury or not.</p> <p>3. A person who voluntarily and unnecessarily places himself in a well known place of danger to life or body, but for which position he could not have been injured, and he is injured or killed in consequence of such exposure, even through gross negligence of the defendant, if the act of the latter is not wanton or ■willful, is guilty of such contributory negligence as to preclude any recovery by him or his personal representative.</p> <p>4. If a plaintiff, by the exercise of ordinary care and prudence, might have avoided the consequences of the defendant’s negligence, and failed to do so, he can not recover of the latter for mere negligence. _ This rule has no application when the element of fraud or intentional injury enters into the case.</p> <p>5. Fellow-sebyants — whether that relation exists. A person in t