| Ill. | Jun 15, 1855
As the injury happened at the same time, and the facts are so much like those in the same plaintiffs against L. H. Yarwood before us, in 15 Ill. R. 168, as to inyolvc the same principles of law, we have again carefully examined the principles there laid down, and fully approve them, believing them sustained by settled adjudications and text writers. It is objected that the doctrine in relation to the mutual negligence of the parties causing the injury, is not applicable to carriers of passengers by railroad, and should not be applied as in that case. T®, ourmjhid, there is no apparent ground or reason for distinct R&^^ii'ference. The degree of responsibility and care betweei^^^Bor inanimate things, and reasonable beings having vol|^^^^Kbund in the difference between property and personspHppEiot referable at all to modes of conveyance. I know of j^Miase making spiy distinction. As to the latter, Justice McLean well remarks, in McKinney v. Neil, 1 McLean R. 550, that “ we are surrounded with dangers at home and abroad, and they are greater when we travel than while we remain stationary. In some modes of traveling these dangers are greater than in others. They may be greater on water than on land; on a fast line of stages than on a slow one; and every passenger must make up his mind do meet the risks incident to the mode of travel he adopts, whuji cannot be avoided by the utmost degree of care and skill in the preparation and management of the means of conveyance. This is the only guaranty given by the proprietor of the line.” If one will take passage in a balloon, he should not expect or require the conductor to insure his life, limb, or safe passage, nor to do more than exert the greatest degree of care, with competent skill in that mode of sailing. Nor can passengers, by steam power, either in boats or on railroads, expect the same degree of security that they would enjoy by wagons, canal packets, or stage coaches. The degrees of care, vigilance and skill are the highest, and the responsibility is for the least neglect known to the law short of insurance. And these, in their application, have respect to the particular mode of travel or transportation offered. The care, vigilance and skill must be adapted to the motive power and means. A servant well qualified to steer a boat or manage a team, might be totally unfit to manage steam, or regulate the running of a boat or locomotive. Th3 means should be reasonably adapted to the end, and the care and skill to the use of the means, whether of one or another mode of transportation. These differences we recognize as within the rule of diligence.' But while the care, skill and diligence are judged of in reference to what is required by the dangerousness of the particular mode, we can see no propriety or justice in relaxing from a proportionate care on the part of passengers,according to the increased hazards of the mode of transportation adopted by them. This is surely^reasonable, and must continue to be a reciprocal duty to carriers by railroads. See 13 Barb. S. C. R. 14.
Upon the evidence, contradictory as it is, we shall not interfere with the verdict. Upon the question of a special passage in the baggage car, the evidence in the case, unlike the. case of Yarwood referred to, is conflicting. The jury were judges of what was before them, and they have settled the facts, under instructions.
The conduct and exclamations of passengers in thmcars were not improperly admitted, as tending to show IgaÉMfckcircumstances of apparent danger impressed every c^^^^ko some degree, explain defendant’s conduct, and vindiclJ^HBm rashness and imprudence froqjf undue alarm. It is impasible for a witness to convey such scenes to tne mind, and their effect and influence upon it. Such general conduct, with the exclamations involuntarily thrown out by appearances of imminent peril, may be regarded as a part of the res gesta for this purpose.
A proper foundation for asking Brewer for the statement of Yarwood had been laid, by the preliminary question to, and answer of Yarwood, for the purposes of impeachment. The matter was relevant, as tejtling to show a .contradiction, and the time and place, and persons connected with the conversation or statement, were certain and specific. Brewer was the person, and it was on the cars, just before the accident. All the pre-requisites, laid down by Mr. Greenleaf, are found in the questions put to and answered by Yarwood. 1 Grcenl. Ev., Sec. 462. The question should have been allowed, and answered by Brewer.
. The first part of the third instruction asked by plaintiffs in error, we again sanction as correct, but the latter part we will again repeat, as wo said in 15 111. 469, “ is too narrow, and does not express the full degree of plaintiffs’ liability as common carriers of passengers.” We see no propriety in attempting new definitions, or departing from the common and well understood terms, for expressing the degrees of both diligence and negligence. When parties persist in attempts to use new and indefinite expressions, we cannot but be strongly impressed with the belief that the usual ones do not suit their purpose. The care and diligence of “ cautious ” persons, is indefinite, uncertain, and no two minds would agree as to the degree indicated.
The fifth, sixth and seventh instructions, asked by appellants, were fair statements of the law, and should have been given. Number four, given in lieu of number seven, is too restrictive. It confines the want of reasonable care to the moment of the accident, and excludes all consideration of a previous want of care; at least, so we understand it. Now the leap at the moment taken, and under the circumstances, might have been prudent and defensible, and yet a previous want of care, or culpable negligence, may have brought him into the situation, to make it necessary and justifiable. Previous acts of appellants, and want of care, diligence and skill in building, equipping, running, repairing and operating the road up to the moment of the accident, so far as they tended to show culpable negligence in the alleged injury, were proper subjects of inquiry, amd might be embraced within instructions. So, in like manner, they have a right to show that the injury was the consequence or result of defendant’s.^útit of care or culpable negligence at any time, or that such ly^gSgonce contributed to produce it. Suppose he should have done an act hours before, or miles distant, from the time and place of the injury, which contributed to it, can this be separated and excluded from our consideration. Suppose he had carelessly placed articles upon the platforms of the cars, liable to be shaken off and across the track, and they were carelessly suffered by the servants of the company to remain until thrown under the wheels, and the cars be thrown off the track thereby, would a justifiable leap, after the necessity occurred, exculpate his previous carelessness, although he might show theirs ? Giving such instructions does not depend upon the sufficiency of the evidence offered, but upon the fact that there is evidence tending to establish the fact alleged. Here there was evidence to that point in the defense, and the court should have instructed the jury of its -legal consequences upon defendant’s rights, in case they believed such negligence proven upon him. This was fully discussed and settled in principle in 15 Ill. R. 468, and the Aurora, Branch R. R. Co. v. Grimes, 13 Ill. R. 585. This, last case has also settled the principle contained in the eighth and ninth instructions asked, and is fortified by the case of Haring v. N. Y. and Erie R. R. Co., 13 Barb. S. C. R. 14, and Moore v. Abbott, 32 Maine R. 49 ; Angell on Carr., Sec. 556, 557.
These instructions were proper and should have been given.
After a careful consideration of the eleventh and twelfth instructions, we are unable to detect any substantial objection to them, and think they should have been given.
The thirteenth and fifteenth were proper, and should have been given. We think the modifications given by the court in lieu of those asked, have expressed too strong a degree of carelessness. // It is enough in law to constitute a defense, that the( 'negligence and carelessness caused or contributed to the injury) complained of. Where these are shown, courts and juries can-’ not adjust their degrees and guage their effects, nor will the law| hold carriers to answer for all the lower degrees, until they! amount to rashness and recklessness. This would add to the highest degree of care, imposed by law upon carriers, an additional responsibility for the negligence and carelessness of passengers short of gross negligence. But such is not the law, and we cannot sanction instructions so stating it; nor shall we here undertake to say how slight a degree will destroy the right of reparation.
The ninth, given in lieu of the sixteenth asked, was proper.
The sixteenth belongs to a class condemned by this court in 15 Ill. referred to, and is properly modified in number twenty-one.
The seventeenth and nineteenth should have been given. The eighteenth was properly modified.
The degrees of care of the plaintiffs, and negligence of defendant, as presented in the ninth and tenth instructions given for defendant here, are not accurately presented. The “ utmost possible care,” and “ slightest neglect,” are superlative terms, unsafe and improper to be indulged in, as expressive of the requirements of the law, while it requires, at the same time, the highest degree of the one, and charges for slight neglect. So, for the other party, prudence, “ simply such as ordinary men usually exercise,” is very indefinite, and may fix no rule or standard at all in law.
As the cause must be again tried, we have examined and discussed these instructions in detail, numerous as they are, in the sincere hope to present what we regard as the settled principles of law, applicable to such injuries.
We can but think the principles all plain, and easily to be understood as laid down in the decisions of courts; and if these were plainly and fairly drawn out into instructions, without embellishments of superlatives, or garnishment of partial statements of facts, juries would easily comprehend the mutual duties and liabilities of the parties, and adjust their rights.
Carriers of passengers are not insurers of life, limb, or against loss, damage or injury, as carriers of goods are, except for acts of Providence or the public enemy; but they are required to use the highest degree of care, diligence, vigilance and skill in the selection of materials, construction of their vehicles, and other means of transportation, and for their conduct and management, repairs and preservation of them, with a view to the comfort, safety and transportation of passengers and their baggage; and they are liable for slight neglect or carelessness in any of these particulars, qualified, however, by the reciprocal duty of the passenger, that his want of ordinary care does not cause or contribute to produce the injury.
Judgment reversed, and cause remanded for new trial.
Judgment reversed.
I am unable to concur in all the conclusions and reasoning of the foregoing opinion.