trary was more than sufficient to sustain the verdict for plaintiff on this issue. No one was present when the accident occurred but the plaintiff, and he testified to no unusual care in attempting to cross over the bridge. negligence of plaintiff. This is It is now assigned as error that the verdict of the jury is contrary to the evidence, because the testimony shows "that the plaintiff was guilty of contributory negligence in attempting to ride across a bridge that he knew was Contributory defective and dangerous." The issue of contributory negligence was submitted to the jury, and has by the verdict been determined in plaintiff's favor. conclusive of the question, unless we can say that the act of plaintiff was negligence in law, or at least that it tended so strongly to establish negligence on his part that the verdict should not be permitted to stand. According to the rule in this court, in order that an act shall be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it. It is apparent that this cannot be said of the plaintiff's conduct in this case. It is well settled, that if a highway or street be obstructed or out of repair, and this be known to a passenger, he cannot be held faultless if he threw himself upon the obstruction or encountered the danger, provided another way of reaching his destination be open to him which is safe and not much longer than that he prefers to travel. City of Erie v. Magill, 101 Pa. St. 616; s. c., 2 Am. & Eng. Corp. Cas. 579; Schaefler v. Sandusky, 33 Ohio St. 246; City of Centralia v. Krouse, 64 Ill. 19; Parkhill v. Brighton, 61 Iowa, IOI; Wilson v. Charlestown, 8 Allen, 137. As far as our research has extended, these are the cases which most strongly support the position taken by appellant. But in each of them the proposition is stated with the important qualification that there must be another safe way by which the danger may be avoided; and it is to be noted that in every one stress is laid upon the point that there was another convenient route. The reason is, that a prudent person may choose to pass along an unsafe highway rather than abandon his trip, although he would have avoided the route if another had been open to him. It is accordingly held, on the other hand, that if the passenger or traveller have no other convenient way, the mere fact that he takes the chances of a known danger, and attempts a passage, is not controlling proof of his negligence. Whether the act be negligent or not, depends upon the circumstances attending it; and the question is for the determination of the jury. City Council v. Wright, 72 Ala. 411; City of Huntington v. Breen, 77 Ind. 29; Turnpike Co. v. Jackson, 86 Ind. 111; Commissioners v. Burgess, 61 Md. 29; Dewire v. Bailey, 131 Mass. 169; Dooley v. Meriden, 44 Conn. 117; Evans v. Utica, 69 N. Y. 166; Templeton v. Montpelier, 56 Vt. 328; Loewer v. Sedalia, 77 Mo. 431; Reed v. Northfield, 13 Pick. 94; Osage City v. Brown, 27 Kan. 74; City of Salina v. Trosper, Id. 545; City of Aurora v. Hillman, 90 Ill. 61. In Dewire v. Bailey, supra, the Supreme Court of Massachusetts say, "We think the law in a case of this kind is, that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner attempted, can the court rule that such knowledge prevents the plaintiff from maintaining his action. In Commissioners v. Burgess, supra, the Maryland court use this langauge: "In this case the knowledge of the plaintiff was some evidence of negligence proper to go to the jury, to be considered by them in conjunction with the condition of the bridge of which he had knowledge, and to be found a bar only in case they found the bridge from the proof to be wholly unfit for use, and he knew its true condition. This language recognizes the correct rule, and is strictly applicable to the case now before us. The defendant, by showing that many persons habitually used the bridge with safety, proved that an attempt to cross it was not conclusive evidence of negligence. We conclude that the finding of the jury upon the issue of contributory negligence was warranted by the testimony, and that appellant's first assignment is not well taken. The first charge asked by appellant contains the proposition, that, if the plaintiff went upon the bridge knowing it to be defective, he could not recover. It is apparent, from what we have said, that the court did not err in refusing the instruction. The second special instruction asked by the defendant, and refused by the court, is a mere general statement to the effect Same. Instructions. that "if the plaintiff, by his own acts of negligence or carelessness, contributed to the injuries received by him," he could not recover. The court having stated the same proposition in its general charge, it was not necessary to repeat it. For the same reason, the court did not err in refusing the defendant's request for the fourth special instruction. Under the general charge the jury were only authorized to find for plaintiff in the event "they believed, from the evidence, that the bridge in question was at a public crossing of the defendant's road, and constituted a necessary part of said crossing." This gave the law more strongly for the defendant than the instruction asked and refused, and rendered any further charge upon the issue unnecessary. No witness very precisely states the location of the bridge, but no contest was made as to its location in the introduction of testimony. It appears that the bridge was across a ditch, "just north" of the railroad track, and that plaintiff's horse was frightened on the bridge, jumped into the ditch, and threw him across the iron rails. Defendant's "section foreman" testified that it was his duty to look after the crossings, and that he had examined the bridge in question, and had repaired it. The conclusion is irresistible, that the bridge which caused the injury was a bridge which it was the duty of defendant to keep in safe condition (Gen. Laws, 19th Leg. 45), and that there was nothing in the evidence calling for any very particular charge upon the subject. The judgment is affirmed. Knowledge of Danger will not impute Contributory Negligence. It is well settled that the use by a traveller of a defective street, sidewalk, or crossing is not contributory negligence per se. See Gordon v. City of Belleville, and note, 20 Am. & Eng. Corp. Cas. 341; notes, 20 Am. & Eng. Corp. Cas. 298, 299; City of Erie v. Magill, 2 Am. & Eng. Corp. Cas. 579. MAGUIRE ບ. FITCHBURG R. Co. (Massachusetts Supreme Judicial Court, March 5, 1888.) Negligence. Due Care. Evidence of Positive Act. In an action by an administratrix to recover damages for the death of her intestate, it appeared that the deceased, an employee in an elevator, was injured while assisting in the unloading of two cars in the building, the brakes of which had been set, and the cars thus rendered stationary. The intestate was ordered by the foreman to stop work, and there was no evidence to show where he went or what he did thereupon. The railroad company negligently and without reasonable warning, while the cars were being unloaded, sent other cars into the building against the stationary cars with such violence as to force them a considerable distance from their position; and immediately after, the intestate was found dead, lying across a rail of the track. Held, that the case was not one in which it was necessary to show some positive act on the part of the intestate, in order to prove that he was in the exercise of due care, and that the question whether he did exercise such care should have been submitted to the jury on the facts. ON report from Superior Court, Suffolk County. Action by Catherine Maguire as an administratrix of her husband Daniel Maguire, against the Fitchburg Railroad Com pany, for damages for negligently causing the death of her intestate. No evidence was offered by the defendant, and at its request the Superior Court directed a verdict in its favor, and reported the case to the Supreme Judicial Court. The facts are stated in the opinion. Henry W. Bragg and James A. Maxwell for plaintiff. Facts. DEVENS, J.-The only question presented by the case is whether any evidence was offered from which due and ordinary care could be inferred on the part of the plaintiff's intestate when the injury to him occurred. He was not the servant of the defendant, but of the elevator company; employed to perform such duties as might be assigned to him, and "to make himself generally useful." As the evidence tended to show, he was engaged in assisting the unloading of two cars in the elevator building, which had been brought in by the defendant, the brakes of which had been set, and the cars thus rendered stationary. The defendant negligently and without reasonable warning, while this operation was being performed, sent certain other cars into the building against the stationary cars with such violence as to force them a considerable distance from their position. Immediately after, the plaintiff's intestate was found dead, lying across one rail of the track. The track upon which the stationary cars thus being discharged stood, was a single one laid down between a platform (covering hoppers into which the grain was discharged from the cars) and the brick wall on the other side of the building. The cars occupied the whole space between this platform and the wall, except about eight inches on either side. During the operation of unloading, it was common for grain to fall from the cars outside the hoppers, and upon or near the track, and grain had so fallen at this time. It was the custom to sweep the grain which had thus fallen, into the hopper. It was a part of Maguire's duty, with that of the other men, to do this, and at other times he had been thus engaged. A few minutes before the accident he had been standing on the platform, attending to the regulation of feed from the hopper to the elevator belt, by which the grain was raised to the bins in the upper story, which was done by means of a small wheel regulated by hand. The assistant to the second foreman had told him "that would be enough," "to leave it," and did not know where Maguire then went to. "I then went to the other hopper," the witness continued, “and heard my second foreman sing out, and the cars came then just as quick as any thing; the men did not get time to let go of any thing, when the noise was made." The assistant foreman testi fied, "When the cars came in, I was standing on the platform, right at the door of the car where the men were working. I did not see Maguire at that particular time. I was talking with him about two minutes before that. I don't know where he went; he had a broom in his hand. He disappeared, and I don't know where he went." There was therefore evidence, that, after having been dismissed at the wheel, he had taken his broom for the purpose of using it, and had used it on the platform. At the precise time of the accident he was seen by no one, and when he "disappeared," as stated by the assistant foreman, it was not shown that he had stepped down onto the track; but he was there found, with his broom, when the accident was over. Plaintiff not have been While due care must be shown by a plaintiff in order that it may be sure that injury to him was not occasioned by any contributory negligence on his part, it is not necessary that any positive act of care shall be proved. It may be inferred from mere absence of fault, when suffi- presumed to cient circumstances are shown to fairly exclude the negligent. idea of negligence on his part. If a person is in the place where he may rightfully be engaged in duties which he may properly there perform, under circumstances which do not require the exercise of especial caution on his part against the acts or the negligence of others, he is in the exercise of due care. A passenger sitting quietly in his seat in a railroad car is, so far as relates to the management of the train, in the exercise of due care. When laborers are set to work upon a railroad track, upon the assurance, express or implied, that the use of such track is suspended, they are not guilty of negligence if they continue their work without constantly watching for coming trains. In the case at bar, the cars were in a building not belonging to defendant, and were fixed there for the purpose of being unloaded. The laborers had a right to conduct that work as it was usually done, without watching constantly lest a train. should suddenly be driven in, and upon the assumption that proper notice would be given of an incoming train. If, after the collision, the body of one of the men standing upon the cars, and engaged in shovelling the grain, had been found upon the ground as if thrown down, there would have been sufficient evidence of due care from his employment, when the collision took place. The presence of the deceased on the track with his broom, as shown by the discovery of his body there, affords evidence that he was there for the purpose of sweeping. Whether he had actually begun or not is not important, if he was there for the purpose of commencing as soon as practicable. He had been dismissed elsewhere, and the sweeping the track was in the line of his duty. He was not bound any more than the shovellers |