Arnold v. President of the Delaware & Hudson Canal Co.

This is an appeal by the plaintiff from ,a judgment in the above action, entered after a trial at the circuit, Where the plaintiff was nonsuited. The case shows that the decision of the judge at the circuit was placed upon the following ground: “ The court granted defendant’s motion, putting the decision on the ground solely that plaintiff was guilty of contributory negligence in putting his arm between the dead woods. ” We are satisfied that the decision of the learned justice was justified by the evidence. The plaintiff to recover was required to establish not only that the defendant had been guilty of negligence, which caused the injury, but also that the plaintiff was chargeable with no negligence which contributed thereto. The plaintiff had no right unnecessarily to place his arm between the dead woods, and' in consequence thereof, receive an injury, and then demand compensation therefor of the defendant. The plaintiff was required to exercise reasonable care and prudence in discharging the duty which he undertook to perform. He was called upon, in view of the danger which attended the work in which he was engaged, to be attentive, and to avoid by reasonable care and prudence, placing his arm in a position where it would be likely to receive injury. The testimony of the plaintiff is as follows:

Q What did you do? A. I reached in to make the connection over the dead blocks.

Q. How did the dead woods on the car you were going to connect, to the one to which it was backing, compare with these dead woods, on model in court? A. The same.

Q. What did you do? A. I reached over to take hold of

Q. Why could you not make it ? A. I could not brake it.

Q. Was the draw-head down so you could not ? A. Yes, sir.

Q. The link was in which draw-head ? A. The car that was standing still.

Q. In reaching over, you had to go how much lower than "the natural place for it? A. I should think about four inches.

Q. Have you tried to reach over the dead wood to the link in the draw-head, when the draw-head is in place? A. Yes, sir.

Q. Then is it necessary to get your arm between the dead woods to put the link in the place? A. No, sir.

Q. At the time you got hold of that link, did you know whether your arm was between the dead woods, or not? A. No, sir.

Q. You took hold of it, and raised it, and saw it would not -enter? A. Yes, sir.

Q. How long did that take? A. I don’t know, probably half a minute.

Q. After you found it would not enter, how long did you hold on to it? A. I let go of it as quick as I could.

Q. What else did you do? A. I tried to pull my arm out as quick as I could.

Q. What was the result? A. My arm was caught.

Q. What was done to it? A. It was smashed.

This evidence was given by the plaintiff on his cross-examination. He testified that it was not necessary for him to place his arm between the dead woods. And that very act contributed directly to the injury which he received, for if he had not thus placed his arm between the dead woods, he would not have received that injury. He fails to show any reason for placing his arm in so dangerous a position and really gives no satisfactory excuse for his conduct in that respect. If any explanation could be given, certainly the plaintiff was the person to furnish it, as he was presumably familiar with the facts. It is asking too much of the court to supply the facts therefrom, by presumption, and then deduce inferences therefrom favorable to the plaintiffs’ case. In some instances, where the action has been brought in a representative capacity, to recover damages for alleged negligence, by which a party has been killed, courts nave gone to a considerable length in allowing slight circumstances to sufficiently explain the conduct of the deceased person, for the purpose of showing that he was not at the time of the injury guilty of contributory negligence. Such cases are, however, exceptional, and rest upon the necessity of the particular case, arising from the