Andrews v. Central Railroad & Banking Co.

No doubt the railroad company, on the facts alleged in the declaration (for which see the report), had no right to obstruct the public crossing with its train and delay the plaintiff unduly in his passage along the street from one side of the railway to the other ; but the obstruction, and the nature of it, were open and visible, and there is no sufficient reason alleged why the plaintiff should not have anticipated that the train might move at any moment. Nevertheless, instead of waiting for the train to get out of the way, applying for it to be moved, or attempting to go round it, he voluntarily and without warning any one of his intention exposed himself between the cárs by climbing upon their platforms adjacent to the bumpers, and was injured. There is nothing alleged from which it can rightly be inferred that his presence and position were known to'the engineer or to any person controlling the movements of the train. It is alleged that he proceeded to pass between the cars “openly and in presence of the employees of said train,” but it was a very long train, and where he attempted to cross was about the middle of it.. Who were the employees present, or what was their relation to the train, is not *195stated. It would be a mere guess to hold that the conductor was one of those present; and it would be an absurd guess to hold that the engineer was one of the number, his proper place being upon the locomotive at the end of the train, and the movement of the cars which caused the injury being so soon after the plaiutiff exposed himself to danger that the engineer must have been at his post when that exposure became visible, even to an immediate bystander. If the engineer, conductor or any other person whose duty it might have been to keep the train still while the plaintiff was passing between the cars, knew that he was so passing', or had notice of his exposure to danger, it was easy to allege it. Why should such a material fact — the only fact which would give the plaintiff a right to any diligence in his favor when in such a hazardous position— be left to conjecture or supposition instead of being plainly and distinctly set forth as a part, of the cause of action ? Gode, §3332. In the absence of such an averment, the plaintiff’s hurt, by having his foot caught between the bumpers and crushed, must be attributed to his own rashness. It was not error to sustain the demurrer to the declaration. Upon his own showing, the plaintiff was without any legal right to recover.

Judgment affirmed.