Gilbert v. Burlington, C. R. & N. Ry. Co.

Citations

• 128 F. 529
• 63 C.C.A. 27
• 1904 U.S. App. LEXIS 3932

Syllabus

<p>1. CONTEIBUTOKY NEGLIGENCE AND PBOXIMATE CAUSE — QUESTION EOB TIIE COUBT.</p> <p>While the questions of contributory negligence and proximate cause are, like other questions of fact, ordinarily for the jury, they are for the court where there is no substantial conflict in the evidence, and the conclusions from it are such that all reasonable men must agree upon them.</p> <p>2. Same — Test.</p> <p>The test of contributory negligence is whether or not the want of care directly contributes to the injury, not whether or not it is a more proximate cause of it than the negligence of the defendant. If it directly contributes to the injury, it is fatal to the plaintiff’s recovery, although the negligence of the defendant may he the more proximate cause of it.</p> <p>3. INJUBY TO SlOBVANT — CONTBIBUTOBY NeGI.IGENCE — CHOOSING THE MOBE Dangebous oe Two Methods.</p> <p>Where there is a comparatively safe and, a more dangerous way of discharging a duty known to a servant, it is negligence for him to select the more dangerous method, and, if his selection directly contributes to his injury, it is fatal to his recovery therefor.</p> <p>4. Same — Yoluntaby Fatlube to Use Uncoupling Device — Evidence of.</p> <p>The act of March 2, 1893, c. 196, 27 Stat. 531 (3 U. S. Comp. St. 1901, p. 3174), which makes it the duty of common carriers to equip their cars engaged in interstate traffic with couplers which can be uncoupled ‘‘without the necessity of men going between the ends of the cars,” imposes upon the cmployés the correlative duty of using these couplers when furnished, and of refraining from unnecessarily going between the ends of cars to uncouple them. A failure of a servant to discharge this duty, which directly contributes to his injury, is fatal to an action for damages on account of it.</p> <p>5. Same.</p> <p>One who voluntarily -and unnecessarily exposes himself to an imminent known danger, and thereby directly contributes to his Injuty, cannot escape the fatal effect of