157 Pa. 103 | Pa. | 1893
Lead Opinion
Opinion by
There is not the least question as to how the collision occurred which resulted in the plaintiff’s injury. Two loaded coal cars which had been standing on a side track, at a distance of almost two miles from the place of collision, were detached from a number of other cars to which they were coupled, a throw-off switch, which would have derailed the cars if left undisturbed was closed so as to lead the cars on the side track down a moderate grade until it joined the main track. There the cars collided with a miner’s train on which the plaintiff was riding as a passenger and killed two persons and injured others, among whom was the plaintiff. The coal cars which had attained a very high speed ran into the miner’s train from behind and drove the forward car, on which the plaintiff was' riding, into the tender and engine. The plaintiff was a passenger and was injured without any fault of his own. As the injury was inflicted by a collision of other cars and on the track of the defendant company, he was entitled to, and received, the benefit of the legal presumption that the injury was the consequence of the defendant’s negligence, which presumption it was the defendant’s duty to rebut or suffer a recovery of damages by the plaintiff. The only substantial question in the case was whether the presumption of negligence was rebutted by the evidence. That question was left to the jury by the learned court below, and the jury found that it was, by returning a verdict in favor of the defendant. It is difficult to see how any other verdict could have been returned consistently with the testimony. The evidence, which was entirely uncontradicted, showed that a small train, consisting of four loaded, and six or seven empty coal cars, was taken up the Northern Central track over on the side track, which belonged to the Philadelphia & Reading R. R. Co., but was used by the defendant, at about half past ten o’clock in the morning. The engine was detached from the train and the cars were left standing on the side track and remained there during the day. The loaded cars were in front. There was a throw-off switch on the track upon which the cars were left standing, a short distance below the cars.
The fireman of the train, Joseph A. Eadie, having testified that he was on the train and that they took the cars to the point stated by Linderman, above the throw-off switch, was asked: “ Q. After you got the draught of cars up there did you do anything to the brakes ? A. I set three brakes. Q. On what ears ? A. On the first and second, two on the first and one on the second car. Q. Were those the cars that were nearest to the locomotive ? A. Yes, sir. Q. Those were the two loaded cars, were they ? A. They were. Q. Were the cars coupled together? A. Yes, sir. Q. Were they left coupled? A. They were. Q. The entire draught was left coupled ? A. They were all left coupled that we took up there. . . . Q. Did you leave on the locomotive with the engineer and conductor? A. I did. Q. And the rest of the crew? A. Yes, sir. Q. You left the cars standing there ? A. Yes, sir. Q. What was done to the throw-off switch ? A. The conduct- or threw the throw-off switch back. Q. Was that before or after the locomotive had passed over it. A. After it passed over it. Q. After it was thrown the switch was open ? A. It was. Q. If the cars had started to run down in that position they -would have been thrown into the meadow by the miners’ houses, would they not? A. Yes, sir.”
W. L. Eadie, a brakeman, having testified that he was on the cars as brakeman, that the cars were left standing on the track above the throw-off switch, and that be went back on the engine with the others, was asked: “ Q. After the engine had passed this throw-off switch, did you notice the conductor do anything? A. Yes, sir, he threw the throw-off switch open. Q. You were with him when he did that, were you? A. Yes,
The testimony of the foregoing witnesses proves that the two cars that escaped were duly braked, by setting both brakes on the front one, and one brake on the rear one, and also that the throw-off switch below the cars was thrown open and that if left in that condition, the cars, if started, could not run on the track but would be thrown off in the meadow. Other brakes were set on the other cars, but it is not necessary to recur to that testimony, because their sufficiency to hold the cars was conclusively established by the fact that the3r did hold them. The3r did not leave but remained standing where they were placed after the two loaded cars had been detached and left.
The question whether the precautions taken by the defendant’s men were sufficient to hold the cars in place, was fully illustrated by the testimony of F. W. Monier, who was shipping clerk of the Excelsior colliery which was farther up the track and above the cars. He testified that he saw the cars in the morning and again in the afternoon. He was asked: “ Q. When did 3mu examine the throw-off switch ? A. In the afternoon about half past four or five o’clock. Q. That was before the cars ran away? A. Yes, sir. Q. What was the condition of the throw-off switch then; .was it open or closed? A. It was open. Q. So that if the cars had been started and the switch in that condition they would have been ditched? A. Yes, sir. Q. Did you take notice of the condition of the brakes on this draught of coal cars ? A. I did. Q. Did 3tou notice the condition of the brakes in the afternoon ? A. I only noticed the condition of the brake about half past four or five o’clock. Q. Please tell the jury what condition you found the brakes in; whether you examined the brakes and why you did it and what condition you found the brakes in at half past four o’clock in the afternoon ? A. I examined the first three brakes on the train nearest to the throw-off switch. I found the brakes set. Q. Were they set hard or tight? A. Yes, sir, the brakes were set very tight. I could not make them any tighter. I tried to tighten the brakes up tighter. The brakes were set tight enough to hold the cars. The switch was set to throw the cars off in case anything would happen to them. Q. The brakes
The testimony of the last witness shows the condition of the cars, the brakes and the switch at nearly, or quite, five o’clock in the afternoon. The cars were in the same position as when they were left by the crew in the morning at eleven o’clock. The brakes on the two cars in question were in the same condition as then, they were set tight and held the cars. The throw-off switch was open as it was left in the morning, so that if the cars had started they would not have run down the track but would have been derailed on the meadow. The absolute sufficiency of the precautions taken was conclusively proved by the fact that they did prevent the cars from starting, and made it impossible for them to run down the track if they had started. It cannot therefore be argued that they were insufficient. The jury has found that the defendant did its whole duty in the way of precautions and were not guilty of any negligence which led to the collision.
The manner in which the collision was produced was fully shown by the evidence which was entirely uncontradicted. Between five and six o’clock on the same afternoon, a boy named. John McCoskey got on the cars between the second and third cars and was seen hammering at the ratchet wheel of the brake with a coupling pin which he had in his hands. A very few minutes before he got on the cars he turned the throw-off switch in front of the cars so as to close it and let the cars run down on the track. He hammered at the cog which holds the brake for a minute or so, until he got it loose when the cars started on the track. Three boys testified to seeing this, and one of them, Alexander Smoogen, jumped on the cars and tried to stop them with the brakes, but did not succeed, and he then jumped off to save himself. The cars ran on down the side track and on to the main track, where they collided with the miners’ train, and did their dreadful work. There is not the least dispute as to this state of facts, and the jury confirmed it by their verdict.
It will thus be seen that the collision was produced by the
The question in this case is whether the defendant company was bound in the exercise of its duty of extraordinary care to take extraordinary precautions against the grossly criminal acts of strangers.
That it did take amply sufficient precautions against everything short of the grievous crime of misplacing a switch, is conclusively established by the uncontradicted evidence in the case, and by the verdict of the jury. The learned court below did, with some well founded hesitancy, commit to the jury the question of the defendant’s negligence in the precautions they took. It was argued in the lower court as here that the defendant might have opened the lower switch, or put locks on the switches, and therefore they did not exercise the very highest degree of care which was possible to human skill, prudence and foresight. But this argument overlooks the fact that the upper switch was left open, which made it impossible for the cars to get to the lower switch, and the further fact that any person who would misplace a switch would break a lock, if it were there. But the argument is fatally defective in that it is founded upon the theory that transporting companies are legally bound to take precautions against the criminal acts of strangers, and are responsible for such acts if they do not. We have not been referred to any case, and we know of none, in which such doctrine has ever been held.
In the case of Railroad v. Hummell, 44 Pa. 375, this court said: “ If the law declares as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions is a failure in duty and negligence. ... Were it worth while, abundant authority might be cited to show that the law does not require any one to pre
The rule, that the carrier is bound to exercise the highest degree of care that is possible to human foresight and prudence, does not require a construction that will make the carrier an insurer against accidents, nor the prevention of accidents by the employment of means which, if the accident could have been foretold might have been used to prevent it, nor for the wrongful acts of strangers, unless the carrier was remiss in not discovering them in time to avert the injury, nor for an impracticable character or extent of precaution which could not be observed without so ruinous a cost as to destroy the business, and in all cases the liability is only such as results from negligence. Our own cases illustrate all these qualifications of the rule of highest possible care.
Thus in Meier v. Penna. R. R. Co., 64 Pa. 225, the plaintiff’s injury was sustained while he was a passenger on a sleeping car in consequence of the breaking of the axle of the forward truck in two places. The end of the car then dropped down and slid along the rails. The plaintiff was thrown forward, the ligaments of the right knee were torn, and the bones of his leg were severely bruised. The plaintiff was entirely without fault and the accident was the insult of a defect in the axle. Of course the presumption of negligence arose, and the defendant undertook to rebut it by proving that new wheels and axles had been put on a few months before, and that they were of good quality; that they were constantly inspected, that the road was in good order and the train running at proper speed, and that they had employed such appliances as were approved by the most experienced railroad operators and mechanics. The case was tried in the District Court of Philadelphia by the very able and distinguished J udge Thayer, then of that court, who submitted the question of negligence to the jury in a lucid and exhaustive charge which received the full approbation of this court. The verdict was for the defendant. The plaintiff sued out a writ of error and assigned portions of the charge, which qualified, or, rather, carefully stated, the rule of highest possible care, but this court approved his rulings and sustained
Concerning this part of the charge, Mr. Justice Ageev, delivering the opinion of this Court, said: “It is agreed on all hands, says Judge Redeibld, in his work on Railways, ed. 1867, p. 174, that carriers of passengers are liable only for negligence either proximate or remote, and that they are not insurers of the safety of their passengers, as they are as carriers of goods and baggage of passengers. The numerous cases cited from which this result is drawn, justify this statement. ... In all the Pennsylvania cases, it will be found that negligence is the ground of liability on the part of a carrier of passengers. Absolute liability requires absolute perfection in machinery in all respects, which is impossible.”
Judge Thayer also charged: “ 2. That the rule in regard to carriers of passengers is this: the utmost care and vigilance is required on the part of the carrier. The rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practicable care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business which have been proved by experience to be efficacious. The company are bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive, which the highest scientific skill might suggest.”
In regard to this part of the charge we said: “ The rule laid down by the learned judge, in the language quoted in the second assignment, is a correct summary of the law. The rule of
It will be observed that the rulings of the court below were approved in a case in which the passenger was injured while traveling on the defendant’s car, without any fault of his own, and where the cause of his injury was a defect in one of the axles of the car, in consequence of which it broke. An appliance was defective and the defendant was relieved from liability, although the defect was not discovered, and the rule of highest skill, foresight and diligence, was held not to be infringed by the non-discovery of the defect.
How much stronger is the present case. Here the injury was not the result of any defect in any of the appliances used by the defendant, nor by any want of skill, foresight and diligence which was humanly possible. The injury was not the result of any act of carelessness or negligence on the part of anybody. It was the result, exclusively, of a deliberate, intended, willful, affirmative, positive act of criminal trespass. No mere act of carelessness or negligence could have turned over the switch, which was set to derail the cars, so that it would throw the cars on the track instead of off. No mere act of carelessness or negligence could, or would, have taken out the coupling pin which held the cars together. No mere act of carelessness or negligence could, or would, have driven back the ratchet which held the brakes in place, four of them in all, so as to set the cars in motion. All, and every one, of these
The rule of highest skill, care and prudence does not require
In 2 Wood’s Railway Law, at section 302, the writer, presenting the subject in words nearly identical with the foregoing, continues: “ The law does not require such particular precaution as it is apparent, after the accident, might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur. The defendant must use the highest degree of practicable care and diligence that is consistent with the mode of transportation adopted.” This was the precise language of the court in the case of Bowen v. New York Central Railway Co., 18 N. Y. 408.
The rule is stated in the same way in Redfield on Carriers, section 347, and note 19.
The rule is stated in substantially the same way in 2 Rorer on Railroads, 955, thus : “ But this rule of greatest possible care is not to be understood as requiring the utmost degree of care which the human mind can attain to, or is capable of inventing. Such applications of it would involve such an expenditure as would tend to prevent all persons of ordinary prudence from engaging in the business. It simply means greatest degree of care that is consistent with that mode of transportation. It does not contemplate such a measure of care as will render it practically impossible to continue the
The very question which arises in this case was decided in Deyo v. New York Central R. R., 34 N. Y. (Court of Appeals) 9. The plaintiff was a passenger on the railroad of the defendant at night. “ The train was thrown from the track through the culpable act of some unknown person who maliciously or mischievously drew the spikes which fastened the chairs and the rails. Marks were visible on the ties, of a claw bar having been used in removing these spikes. Two trains had passed over this section of the road at the point where the injury happened. . . . The road was in good condition when these trains passed over it in safety and without any obstruction.” Davies, J., in delivering the opinion said: “ The only question upon this appeal is, whether there was any evidence of negligence on the part of the defendants or their servants, sufficient to warrant the learned justice who tried the action in submitting that question to the jury. It is a familiar principle that earners of passengers are not insurers of the safety of their passengers. Their duty is measured by the dangers which attend railroad carriage ; and the utmost foresight as to possible dangers and the utmost prudence in guarding against them are required to exempt them from liability in case of injury to a passenger. . . . There was no evidence in this action of any negligence on the part of the defendants, their servants or agents. This portion of the track was laid with the best and most improved rail. It was in perfect order. It had been passed over by their trackmaster a few hours before the accident. Within two hours before it occurred, three trains of ears had passed over it in safety, and it must then have been in complete order. The proximate cause of the accident was the removal of the spikes which fastened the chairs and rails to the ties and sleepers. It is apparent that, as soon as these fastenings were removed, a superincumbent pressure would displace the rails, and thus inevitably throw the cars off the track. No human care or foresight could guard against such a diabolical
The court below had on the trial granted a compulsory non-suit, and the court of appeals affirmed the judgment saying: “ If, therefore, the jury on this testimony had found that the defendant had been guilty of negligence, it would have been the duty of the court to have set aside the verdict.”
It will be observed that in the case just cited there was no affirmative proof as to who removed the spikes and thus caused the rails to become displaced. There was therefore a possibility that they might have been removed by some vindictive employee who had been discharged. In fact there was evidence to prove just such a state of facts, but nevertheless the court held that the company was not liable. But in the case at ba,r there was full proof that the cars were uncoupled, and the brakes loosened, and the switch turned back, by a person who was a total stranger and having nothing to do with the defendant company, and for whose acts, therefore, the company was not responsible in any conceivable manner.
The case of Curtis v. The Rochester & Syracuse R. R. Co., 18 N. Y. Reports, 534, is another instance in which the same doctrine of non-liability was held, although there, the evidence was sufficient to warrant a verdict of negligence. The plaintiff was a passenger and was injured by the car running off the track at a switch at a station, which was misplaced, on the main track. There was no evidence to show how it became misplaced, and as it was at a station there was sufficient evidence of want of care to carry the case to the jury. But the court of appeals in their comments upon the rule of duty applicable in such cases said : “ Carriers of passengers are not insurers ; and many injuries may occur to those they transport for which they are not responsible. They are, for obvious reasons, held bound to exert the utmost care and vigilance to secure the safety of passengers, and are responsible for the slightest negligence. But injuries may often happen through the fault or misconduct of those whose acts are in no way chargeable to them. . . . Still, accidents may occur from a multitude of causes, even upon a railroad, for which the company is not responsible. If obstine
That is precisely this case. <> These cars were in a place of safety and amply secured against either leaving their position or running on the main track, by a switch, so as to derail them if they did get loose. But they were detached from the other cars, their brakes were opened and the derailing switch turned back by one who was a stranger, and, within a very few minutes after this was done, the collision occurred. There was no time for the defendant’s agents to discover the mischief, and they cannot be charged with negligence in that respect. So far as this defendant is concerned, it is of no consequence who it was that committed this crime nor what his motives were. He was a stranger over whom they had no control, and they were not responsible for his acts.
In two of our recent cases the rule of the presumption of negligence from the mere fact that the plaintiff was a passenger and was injured, has received qualifications which are strictly applicable to the case at bar. The first of them is Penna. R. R. Co. v. MacKinney, 124 Pa. 462, in which the plaintiff was a passenger on the defendant’s train, and while reading a newspaper in his seat at an open window, was struck in the eye by a hard substance and seriously injured. On the trial the court below instructed the jury that they should start with the presumption that the defendant was guilty of negligence from the mere happening of the accident, and that it thereupon devolved upon the defendant to rebut that presumption and show that they were not negligent. We held that this was error, because the accident occurred from something extrane'ous to the railroad and the appliances of travel, and it would be necessary for the plaintiff to go further and affirmatively prove that there was negligence. The present Chief Justice, in delivering the opinion, pointed out the difference between an accident resulting from the mere operation of the road, and one which was the result of some extrinsic cause. In the former the presumption of negligence arose from the mere happening of the accident, in the latter no such presumption arose, and the fact of negligence for which the defendant was responsible, must be proved
In the present case the injury having occurred as the result of a collision of cars on the railroad, the plaintiff was entitled to tbe benefit of a presumption of negligence, and the court below so charged the jury. But the defendant met and rebutted’that presumption by showing conclusively, aud without the least contradiction, that the collision was occasioned solely bjr the criminal act of a stranger with whom neither the company nor its agents bad anything to do. As this was an undisputed fact, it is almost impossible to understand why tbe learned court below would not have been justified in withdrawing the ease from the jury, as was done in the case of Deyo v. N. Y. Cent. R. R. Co., supra, on the ground that, upon the whole testimony, no negligence was shown for which the defendant was responsible. But tlie learned court left tbat question to the jury, and the jury found that the defendant was not guilty of any negligence which produced the injury, and that verdict of course settles the question.
Tbe appellant claims that the court below did not dwell with sufficient force and emphasis upon the rule of tbe highest degree of care, skill and prudence, which was humanly possible. It is sufficient to say in reply, that, in view of the entirely uneontradicted testimony in this case, it was only necessary to inquire whether the defendant had rebutted the presumption of negligence which arose from tbe mere fact of the injury. There was nothing in the case but the mere presumption. All of the actual testimony as to the real facts of the occurrence, tended, in a most eminent degree, to show that there was no negligence for which the company was responsible, and that the injury was the result of tbe willful criminal trespass of a stranger. In such circumstances tbe highest inquiry that
The appellant’s points on the subject of the highest possible degree of care were affirmed, and the remark of the court below that the principle was very strongly expressed, was entirely correct in view of the manifest facts of the case. So also his expression of individual opinion that the precautions taken by the defendant were sufficient to relieve them of the charge of negligence was appropriate and just in view of the testimony. He distinctly told the jury it was for them to decide the question, and left them entirely free to act upon their own judgment.
In the case of Latch v. The Rumner Railway Co., 3 Hurlst. & Nor. 930, the plaintiff’s trucks were derailed by the misplacement of the points of a siding. There the evidence showed that shortly before the accident a stone was found inserted under the lever of one of the points, and the defendant claimed that this had caused the accident, and as it was the willful act of a stranger they were not responsible. The judge who tried the case thought there was no evidence of actual negligence, and told the jury that if the defendant’s account was correct they were entitled to a verdict, unless the jury thought there was negligence in not having a person to take care of the points, and he said he did not think there was. A verdict was rendered for the plaintiff, and on a rule for a new trial the case was heard in banc and the rule made absolute. The court said: “ There was evidence that there had been a willful act on the part of a stranger which would have caused the accident, and no evidence of negligence on the part of the defendants. None was suggested except their not having a person always at the spot to look after the ‘points,’ which they were not bound to have. The siding had been in that state for months, and no accident had. happened. The verdict was clearly contrary to the evidence, and there must be a new trial.” In this case there was no proof as to who had placed the stone under the lever, and the verdict had found negligence as a fact, but the court set it aside as unwarranted by the testimony.
It will be seen that in this last case the rule, that a presumption of negligence arises in favor of a passenger traveling on a train from the mere fact of the accident, was refused application, aud the rule that the highest possible care must be applied was denied enforcement, because there must be evidence to justify it in the intrinsic facts of the case. Neither of these rules therefore is of universal application, and the particular circumstances must be considered in order to determine how far they control the decision.
Here the legal presumption was applied because the injury
The complaint that the judge expressed an opinion on the facts as to whether the defendant had exercised sufficient precautions, is without merit. In the case of Leibig v. Steiner, 94 Pa. 466, we said: “A judge may give his opinion freely on the weight and value of evidence, for he is the best and safest adviser of the jury; but he has no authority to decide any question of fact, when the party affirming it has sustained his averment by any reasonable proof. Very strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary. . . . Exceptional cases arise where it is the duty of the judge to express his opinion of the facts and guide the minds of the jury to a correct view of the evidence; and, therefore, it has been settled that when he does so without misleading or controlling them in the disposition of the facts, there is no ground for reversing.”
In the present case the learned judge who tried it was particularly careful to say to the jury, that, while personally he thought the company was not careless in not opening the lower switch or putting on locks, and that he thought the company had done all that a prudent man would do, nevertheless he left it to them to say whether there was carelessness on the part of the defendant in leaving the cars as they did. He also said that he left it to the jury to say whether the defendant was responsible for the misconduct of bad bojrs, that while it was his own opinion that they were not, he was bound to leave that question to them, and did so. There is certainly no error
In the case of Spear v. The P. W. & B. R. R. Co., 119 Pa. 61, we said: “ The learned judge who tried this case in the court below, was persuaded that the evidence given on behalf of the defendants was sufficient to rebut the presumption of negligence, and he had a right to express an opinion on that subject, but the question was not one of law for his determination. It is the right, and in some cases it becomes the duty, of a judge to express his opinion upon the character and weight of the testimony which he must submit to the jury, and it should be dojre in such a manner as to leave them in possession of the question that belongs to them.”
To the same effect is Pennsylvania Company v. Allen, 3 Penny. 170.
Kilpatrick v. Commonwealth, 31 Pa. on page 216: “ A judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury.”
Bitner v. Bitner, 65 Pa. on page 363: “ Very strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary.”
In Johnston v. Commonwealth, 85 Pa. 60, on a trial for burglary, the court in the charge said : “ The commonwealth claims that evidence can establish nothing if this evidence will not establish the facts alleged in the third count, and I for my part cannot see how the jury can hesitate a moment to convict the prisoner on the third count.” Held not to be error under the facts of the case, although it was a strong expression of opinion.
See also McClintock v. Pa. R. R. Co., 21 W. N. 133; Doyle v. Un. Pass. Railway Co., 147 U. S. 413 and 430.
The assignments of error are all dismissed.
Judgment affirmed.
Dissenting Opinion
dissenting:
If the right of trial by jury, “ as heretofore,” is to “ remain inviolable,” it behooves us, in my judgment, to disapprove of such constraining influence as was improperly brought to bear upon the jury in this case.
While the learned judge, who presided at the trial, rightly conceded that the case hinged on questions of fact which he could not, in any event, withdraw from the jury, he submitted them with evident reluctance, and with such an emphatic expression of his own opinion that said questions should all be determined in favor of the company defendant that it was next to impossible for the jury to discharge their duty, as the constitutional triers of fact, with that sense of unconstrained freedom which should always characterize the deliberations of every jury in such cases as this.
Referring to the duty which the company as a common carrier of passengers owed to the plaintiff, and whether that duty had been properly performed, etc., he said: “ Under the law applicable to this case I must submit the question to you to determine whether you find the defendant was careless in not opening the lower switch or putting on locks. Personally, if I were a juror, I would say no. If I were a juryman, I would think that the company had done all that any prudent man would do ; it braked its cars, opened the throw-off switch and left them there. But the question must be submitted to you, as jurors, to say whether you find it was carelessness on the part of the defendant to leave those cars there on the decline on which the cars would have run into the main road in case they had got loose.”
Again he said: “ There is another part of the case which is brought out with great strength under the evidence, and proved, I think to your satisfaction, as at least it is to mine, that this accident was caused by the willful misconduct of certain boys ; that those bojrs meddled with those cars and that switch, and that it was their willful misdoing that caused the accident. I leave it to you to say whether you think under those circumstances a company ought to be held responsible for the malicious, willful misconduct of bad boys. My own individual opinion in that case is that they ought not, but as I am bound to leave that question to you, I do leave it to you to determine.”
But the learned judge’s oft-repeated declarations of his own opinion on questions of fact which were exclusively for the consideration and determination of tbe jury, and wbat he would do if he were a juror, etc., are not all. There are grave errors of law for which alone the judgment should be reversed. In the paragraph first above quoted from the charge, the standard of duty applied to defendant company as a common carrier of passengers is ordinary care merely, viz.: “ If I were a juryman, I would think that the company had done all that any prudent man would do; it braked its cars, opened the thimv-off switch and left them there.” It is no compliment even to an ordinarily prudent man to say that he would not have done more than brake the cars in such a way that even children could at any time start them down grade on their death-dealing errand, or open the throw-off switch and leave the lever unlocked and unsecured, in any manner, so that any thoughtless or mischievious boy could shut it again with perfect ease. But, when we apply to defendant’s conduct, in leaving the coal cars in such an insecure condition, etc., the high standard of care which the law requires carriers of passengers to exercise, how widely different is the case ? The contract to carry implies that every precaution which human skill could suggest has been taken to guard against every apparent danger that may beset the passenger, and that same degree of care will continue to be exercised until he reaches the end of his journey.
The siding or branch, on which the coal cars stood, was of unusually heavy grade, descending rapidly to its junction with the main line, on which was the train in which plaintiff and other passengers were being transported. As a necessary precaution against the danger of cars escaping by accident or other
The construction of these throw-off switches is proof of their necessity, but if they were not used or not properly secured, of what avail could they be in averting danger ? It is too plain to admit of any doubt that even suggesting to the jury that these acts of omission should not be regarded as any proof of negligence was error.
The unqualified affirmance of defendant’s second point was plain error. In affirming that point, without any qualification or explanation, the learned judge instructed the jury, in the words, thereof, thus: “ The uncontradicted testimony on the part of the defendant, shows that the proximate cause of the collision, in which the plaintiff was injured, was the wrongful act of trespassers upon defendant’s cars. For such wrongful act, the company defendant, under the circumstances of the present case, is not responsible; and if the jury believe the said testimony, as to the proximate cause of the collision, their verdict should be for defendant.” The vice of this instruction is that it ignores the question of defendant’s omission to exercise that high decree of care which' the law requires. It was clearly the duty of the company to take every precaution, which human skill and foresight could suggest, to guard against every apparent danger that might beset the plaintiff and other passengers. It foresaw the danger of cars being detached, by accident or otherwise, and running down the heavy grade, uncontrolled, into the main track, and it accordingly provided the two throw-off switches to guard against that apparent danger, but it omitted to properly use the means which it had pro
There was also error in affirming defendant’s first point as presented. Other, errors of minor importance might he noted, but those, to which special reference has been made, are sufficient to show that a fair trial was not accorded to plaintiff. The emphatic and oft repeated expressions of opinion, etc., above referred to, were unwarranted, misleading and erroneous. They were an uncalled for invasion of the province of the jury. The line of demarcation between the duty of the court, as expounder of the law, and that of the jury, as the constitutional triers of fact, should be carefully observed. While, on the one hand, the court should not permit the jury to disregard or evade its instructions as to matters of law, it should be equally careful not to invade the province of the jury, and take upon itself the determination of questions of fact about which there is any doubt or dispute.
For the reasons above suggested, the judgment should be reversed and a new trial ordered.
