dissenting: We dissent in this case from .the ruling by which it is held that there was no evidence of contributory negligence. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion. See Wharton on Negligence, sec. 1, and notes. One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is;- (1) Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that but for such negligence, or want of care and caution on his part, the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter he is not. Balto. and Potomac R. R. Co. v. Jones, 95 U. S., 439 (24 L. Ed., 506). It remains to apply these tests to the case before us.
The plaintiff was being carried to the place of his work. He had the choice of a safer place in the truck to ride, but he chose a dangerous one. If he had not done so he would not have been hurt. It was because of his position on the truck, and because of that alone, that he was *431injured. This cannot be doubted. No one else was injured. It is not whether he caused the truck to be thrown against the bank, he being caught between the two, but whether by reason of his own act he had exposed himself to the very danger which occurred. There was, at least, some danger or there would have been no exceptional injury in his case. It is said in R. R. v. Jones, supra: “The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on plaintiff’s part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit. The case is thus clearly brought within the second of the predicates of mutual negligence we have laid down,” citing Hickey v. R. R., 14 Allen, 429; Todd v. R. R. Co., 3 Allen, 18; S. c., 7 Allen, 207; Gavett v. R. R. Co., 16 Gray, 501; Lucas v. R. R. Co., 6 Gray, 64; Ward v. R. R. Co., 11 Abb. Pr. (N. S.), 411; R. R. Co. v. Yarwood, 15 Ill., 468; Doggett v. R. R. Co., 34 Iowa, 284.
This case is not unlike in principle, and is analogous in its facts, to Howard v. R. R., 132 N. C., 109. Plaintiff, in that ease, was sitting on the rear platform of a shanty car with his feet on the bottom step, where he could get a better view of the country. There was a seat for him in the car. The train passed a pile of lumber which struck his legs and injured him. It is true that he had been ordered not to stand or sit on the platform, but the rule was not enforced but habitually violated. More honored in the breach than in the observance. He was on the steps, therefore, voluntarily, and under the same circumstances as plaintiff was sitting on the side of the truck. It cannot well be said that sitting on the side of a truck with the feet on the running board is not more dangerous than sitting inside of the truck. The actual fact demonstrates that it was. "We do not pass upon the weight of the evidence to show negligence on plaintiff’s part, no more than we would to show negligence of the defendant. It is quite sufficient if there is any evidence of negligence. The jury answered the issue as to contributory negligence “Yes,” and defendant is entitled to the judgment.
We are of the opinion that the judgment was correct and should not be disturbed.