It is necessary for the plaintiff to prove that her intestate, John B. Doucette, was in the exercise of due care at the *Page 421 time of the accident to entitle her to a verdict. Davis v. Railroad,70 N.H. 519; Waldron v. Railroad, 71 N.H. 362. Doucette was a man in good health, in possession of all his faculties, unless his hearing was somewhat poor, as to which the evidence is not clear. "There is nothing to relieve the plaintiff from the fundamental rule in the law of negligence that freedom from fault contributing to the injury on the part of the person injured is essential to a recovery for the injury." Chabott v. Railway, ante, 133, 135.
It is evident from the facts in this case which are not in dispute that Doucette used no care at all to protect himself from injury. Just before he went between the cars and was caught, the shifting conductor waved his hand to him and told him to look out. If he did not understand the words spoken, being a man unloading freight cars he must have known, if he had been giving proper attention, that when the shifting conductor came there and waved his hand at him, it was a warning that the shifting engine was coming and to look out. In addition to the warning of the shifting conductor, Rouleau said to him that they would unload that car quickly because the conductor was waiting for it. Doucette should have understood from this that the shifting engine was shortly to come for that car. Directly after these warnings he went between cars No. 1 and No. 2, and was caught and injured. In order to go between these cars he walked from the west to the east end of car No. 1 some thirty to forty feet, facing and in full view of the shifting engine that was moving and pushing freight cars directly toward him and the cars that he went between. The bell of the approaching engine was ringing, and he would undoubtedly have heard that if he had been giving any attention to his surroundings; but if he could not have heard the bell readily on account of deafness, he could have seen the engine and freight cars coming had he looked, for his eyesight was unimpaired and the on-coming engine and freight cars were in full view. Unquestionably he did not see the engine and cars coming, as he went between cars 1 and 2. If he had, he would never have placed himself in such a perilous position. It is immaterial, however, so far as his negligence is concerned, whether he saw the engine and cars or not. He could have seen them coming and saved himself from injury and death if he had been in the exercise of the care that his situation demanded. "He was thoughtless and careless when his duty to the railroad as well as to himself required him to be thoughtful and careful." Gahagan v. Railroad, 70 N.H. 441, 446. Doucette was absolutely inattentive to the obvious *Page 422 danger that threatened him, and his conduct cannot be accounted for upon any theory consistent with the care that a reasonable man would have exercised under the circumstances. He was therefore guilty of negligence, for he was "bound to be informed of everything which ordinary care would disclose to him." Nashua etc. Co. v. Railroad, 62 N.H. 159, 162.
The plaintiff cannot prevail. The burden was upon her to show that her intestate was in the exercise of due care, but she presents no evidence that he exercised any care whatever. On the contrary, the evidence indicates that he was careless and negligent. The result makes it unnecessary to consider the negligence of the defendants.
Exceptions sustained: verdict set aside: verdict and judgment for the defendants.
All concurred.