Western Union Telegraph Co. v. Baker

Citations

• 140 F. 315
• 72 C.C.A. 87
• 1905 U.S. App. LEXIS 3936

Syllabus

<p>1. Negligence — Action foe — Plaintiff’s Failure to Exercise Preventive Care Fatal.</p> <p>One’s right of recovery for damages on account of another’s negligence is always conditioned by his own exercise of ordinary care to avoid or diminish the damages as soon as he knows that they are impending; and, where the exercise of such care would have prevented them, the failure to exercise it is fatal to a recovery.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 86-93.]</p> <p>2. Same — Contributory Negligence — Question, Not Which Negligence is More Proximate Cause.</p> <p>In cases involving contributory negligence, the question is not whether the negligence of the plaintiff or that of the defendant is the more proximate cause of the injury, but it is whether or not the negligence of the plaintiff directly contributed to it. One whose negligence directly contributes to his injury cannot recover damages of another whose negligence concurred to cause it, although the carelessness of the latter may be the more proximate cause of it.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 93, 112, 113, 162-167.]</p> <p>3. Same — Contributory Negligence — When Question for Court or Jury.</p> <p>The question of the existence of contributory negligence is, like any other question of fact, for the jury when conditioned by conflicting testimony or doubtful deductions from the evidence. It is for the court when the evidence so clearly discloses the fact that a finding contrary to its showing could not be sustained, and in all such cases it is the duty of the trial court to instruct the jury to return a verdict in accordance with the evidence.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent Dig. Negligence, §§ 286, 291, 296, 299, 333-346.]</p> <p>4. Trial — Withdrawal of Case from Jury.</p> <p>There is always a preliminary question for the judge before a case can be properly submitted to the jury, and it is, not wh