167 Ind. 205 | Ind. | 1906
Complaint by appellee to recover damages for loss of property by fire, by reason'of the alleged negligence of appellant. There was a verdict and judgment in favor of appellee. The question of the sufficiency of the complaint on demurrer is raised, but no useful purpose would be subserved by setting out the entire substance of that pleading. The first paragraph charged negligence, as respects the locomotive and its management, as follows: (a) Omitting to use a safe and sufficient spark-arrester; (b) using a spark-arrester with unusually large and dan
Assuming, without deciding, that it was not error for the court, in its fifth instruction, to use the term “reasonable precaution,” instead of the preferable one, “ordinary care,” and assuming further, since the care that the company was required to exercise was, so far as the element of law was concerned, to be measured by a fixed standard, which was to be fully complied with (Wharton, Negligence [2d ed.], §46), that it was proper to use the expression “all reasonable precaution,” the question arises whether it is not likely that the jury was misled by the charge in the next instruction that in the circumstances therein hypo
It was said by this court in Meredith v. Reed (1866), 26 Ind. 334, 336: “What is ordinary care in some cases, would be carelessness in others. The law regards the circumstances surrounding each case, and the nature of the animal or machinery under control. Greater care is required to be taken of a stallion than of a mare; so in the management of a steam engine, greater care is necessary than in the use of a plow. Yet it is all ordinary care.” The legal standard of care required in a particular relationship is always the same,. although the amount of care thus required depends upon the particular circumstances. Cleveland, etc., R. Co. v. Terry (1858), 8 Ohio St. 570; Weiser v. Broadway, etc., St. R. Co. (1895), 6 Ohio Dec. 215. As has been observed by a modern writer: “This standard may vary in fact, but not in law.” 2 Jaggard, Torts, p. 819. In an article in 3 Albany L. J. 314, it is said: “The ratio, proportion or correspondence of diligence to circumstances, of care to surroundings, is fixed and identical. And, in determining a question of diligence or negligence in either case [as between two cases previously used by way of illustration], it would be only necessary to apply the same rule to varying circumstances and persons, to demand the same ratio between varying extremes. And it is not foo much to assert that all the perplexity and mis
Judgment reversed, and a new trial ordered.