Clark's Administrator v. Richmond and Danville Railroad Company. rible death. To bar the windows would increase the danger as well as the discomfort of railroad travel. And the same reason which commend the bars on the windows would as well require the doors to be locked and barred; and then all these precautions would prove unavailing where the passengers sought to avoid the restraints thus imposed. We do not think such restraints and precautions ought to be held necessary in order to prevent intelligent and rational beings from thrusting their heads or their limbs through the windows of swiftly moving trains. It is better, we think, to adhere to the rule already established in this court cited above, that "one who if injured by the mere negligence of another cannot recover any compensation for his injury if he, by his own ordinary negligence or willful wrong, contributed to produce the injury of which he complains; so that but for his concurring and co-operating fault the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence." Tuff v. Warman, 5 Q. B. (N. S.) 573; R. Co. v. Anderson, 31 Gratt. 812; s. c., 31 Am. Rep. 750. And we are therefore of opinion that there is no error in the judgment of the corporation court of the city of Portsmouth appealed from, and the same must therefore be affirmed. A railway brakeman was killed by collision with a low bridge while standing on top of a freight car in the night. He had been warned of the bridges, and had several times passed this bridge by daylight. Held, that there could be no recovery.* * A CTION for death of plaintiff's intestate by negligence. The opinion states the case. The defendant had judgment below. See Pittsburgh and Connellsville R. Co. v. Sentmeyer (92 Penn. St. 276), 37 -40 Am. Rep. 684; Wells v. B. C. etc., R. Co., 56 Iowa, 520. Clark's Administrator v. Richmond and Danville Railroad Company. Flournoy & Martin, Carrington & Fitzhugh, for plaintiff in error. H. H. Marshall, for defendant in error. LACY, J. The deceased, James H. Clark, was a brakeman upon a freight train of the defendant company. He lost his life on the 21st of February, 1880, while in discharge of his duties as brakeman, and his administrator, the plaintiff in error, brought this suit to recover of defendant in error damages, on the ground that his death was due to the negligence of the defendant in error. The defendant demurred to the evidence, and the court compelled the plaintiff to join therein. The jury assessed the damages of the plaintiff, if judgment should be for him, at $7,500. The court sustained the demurrer, and gave judgment for the defendant thereon. Thereupon the plaintiff applied for a writ of error and supersedeas to this court, which was awarded May 18, 1882. The plaintiff's intestate's duty as a brakeman on a freight train required him to be on the top of the moving train. In his service upon the said freight train, while running from Greensboro to Richmond, he was struck by a highway bridge which spans a cut on the said railroad line, in the suburbs of the city of Danville, and killed by the collision. In coming to Danville the train runs down grade, which begins about a mile before reaching the said highway bridge. It was impossible for a man of ordinary stature to stand erect on the freight cars and pass with safety under said bridge, and such is the case with most of the overhead structures on the line of this road. It is insisted that the defendant company was guilty of negligence in constructing its overhead bridges so low as to require a brakeman who is doing duty to stoop in order to pass under the same with safety; and that it was negligence in the said company not to have any ascertained and established system of bridge signals to give notice of the approach to these bridges, and not to have any guards across the track to warn its employees of the approaching danger; and that in this case there was no sufficient warning given this brakeman, who was a new hand, and under twenty-one years of age, of the approach to this particular bridge, which was passed in the night-time. Clark's Administrator v. Richmond and Danville Railroad Company. The evidence shows that the said employee was of the usual size and stature of full-grown men, being six feet high, and weighing 180 pounds, and having the appearance of a full-grown man; and the fact that he was under age was unknown to the company, or any of its agents; that the said employee had been employed by the said company some two years before without objection on the part of his father, who suffered his son to collect his own pay from the company, and pay it to him; that for some time before he sought and obtained employment as brakeman he had been employed in the company's yard in Manchester, shifting cars, making up trains and the like. The evidence shows that at the time when his service was engaged by the company's agent, the said employee was warned to look out for the overhead bridges, and his fellow brakemen were instructed to show him the bridges, and to warn him of the dangers attending the same. The said employee had been under this highway bridge three times, and in the day-time, and was killed in going under the same in the night-time, but that it was not a dark, but a moonlight night; that on leaving the station west of Danville his fellow brakeman had said to him, "Now we are going down to Danville, look out for the bridge;" and the bridge in question was the only bridge in going from there down to Danville. When nearing the bridge, his fellow brakeman seeing he was standing, endeavored to warn him of the danger, and shouted to him to stoop, but he remained standing as if not hearing or noticing, and was struck and killed by the bridge. [Question of practice omitted.] When we consider this evidence in the light of the authorities cited, and the established principles which govern in the case of a demurrer to evidence, we must determine first whether the defendant was guilty of such negligence as was the immediate cause of injury received by deceased, and whether there was contributory negligence on the part of the deceased; whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence, or want of ordinary or common care and caution, that but for such negligence or want of ordinary care or caution on his part, the misfortune would not have happened. In the first case the plaintiff would be entitled to recover. In the later, not; as but for his own fault the misfortune would not Clark's Administrator v. Richmond and Danville Railroad Company. have happened. Mere negligence or want of ordinary care or caution would not however disentitle him to recover unless it were such that but for that negligence or want of ordinary care and caution the misfortune could not have happened, nor if the defendant might by exercise of care on his part have avoided the consequence of the neglect or carelessness of the plaintiff. The negligence charged against the defendant company is, as we have seen, that the overhead bridges are constructed so low as not to allow a person to stand erect upon the top of freight cars passing thereunder; and in the second place not sufficiently warning the deceased of the threatened danger. * * In the case of Devitt v. Pacific Railroad, 50 Mo. 302, questions similar to these raised by this record were considered and decided by the court. The plaintiff's son was a minor, and was killed riding on the top of a freight car passing under a bridge. The accident occurred in the day-time, and the deceased had been in the employ of the company about three weeks, had frequently passed under the bridge, and had been repeatedly warned to look out for this and other bridges; and when last seen he was sitting upon the brake facing the bridge. The court in that case held that "it would be difficult to imagine a clearer case of contributory negligence, and if one guilty of it could recover, or his friends for him, if the experiment proved fatal, we must necessarily ignore the legal consequences of such negligence. An employee or servant cannot recover for injuries received from the negligence of other servants when the principal is not at fault. But if the principal has been guilty of fault or negligence either in providing suitable machinery, or in the employment or selection of suitable agents or servants, and injury arise in consequence, he must respond in damages. This liability is however modified, when the servant himself, well knowing the default of his principal, as in providing defective or unsuitable machinery, voluntarily enters upon the employment. By so doing he assumes the risk, and hence cannot charge it to his employer. If persons are induced to engage, in ignorance of such neglect, and are injured in consequence, they should be entitled to compensation; but if advised of it, they assume the risk. They contract with reference to things as they are known to be, and no contract is violated, and no wrong is done if they suffer from a neglect whose risk they assumed." Citing Wright v. N. Y. G. R. Co., 25 N. Y. 566; Brazzell v. La * Clark's Administrator v. Richmond and Danville Railroad Company. conia M. Co., 48 Me. 113; Thayer v. St. L. and T. H. R., 22 Ind. 26; Hayden v. Smithville M. Co., 29 Conn.548; Mud River and L. E. R. v. Barber, 5 Ohio, 541. In the case of Owen v. New York Central Railroad Company, 1 Lans. 108, a brakeman, in the employ of a railroad company, while discharging duties in the line of his employment, upon the roof of a freight car, was carried against a highway bridge and sustained injuries, for which he brought an action against his employer. The bridge was some three and a half feet higher than the top of the highest freight car in use by the company. The brakeman had entered into the employment of the company with knowledge of the position and height of the bridge, and he had had opportunity of informing himself as to its continuance in the same position. It was held that "the plaintiff should have been non-suited, the danger from the bridge being clearly incident to the labor he undertook to perform. In view of the brakeman's knowledge as to the bridge, his omission to avoid the accident by stooping was such want of ordinary care and caution as would have defeated his action if otherwise maintainable. Having assumed the risk of injury to his person from the bridge, evidence offered by him upon the trial tending to show its dangerous character was properly excluded. The danger was open and obvious, and within the plaintiff's personal knowledge at the time he entered the defendant's employment. It was a danger clearly incident to the service which he undertook to perform. He knew as well as his employer the perils of the business, at least as respects the bridge in question, and the law will imply that he assumed the risk of personal injury," citing Sherman v. Rochester and Syracuse R. Co., 17 N. Y. 153; Faulkner v. Erie R. Co., 49 Barb. 324; 39 N. Y. 468. "This is a well-settled rule; but if the rule were otherwise, upon the evidence in this case the plaintiff was not entitled to recover upon another ground. The injury was caused by his own negligence. It is admitted that he knew that this was a low bridge, and he must have known that he could not pass under it while on the top of the cars, unless he stooped, without injury. He might have avoided all injury by the exercise of the most ordinary care and caution. The exception taken to the ruling of the court, excluding the evidence offered by the plaintiff, that other persons had been killed at the same crossing, must be overruled. That evi |