Maynard v. Buck

100 Mass. 40 | Mass. | 1868

Wells, J.

The instruction that the defendant “ was bound to use the same care in regard to ” the cattle, which he undertook to drive for hire, “ that men of ordinary prudence would exercise over their own property under the same circumstances,” was correct, and in accordance with numerous authorities. Cayzer v. Taylor, 10 Gray, 274. Shaw v. Boston & Worcester Railroad Co. 8 Gray, 45. Shrewsbury v. Smith, 12 Cush. 177. Sullivan v. Scripture, 3 Allen, 564. Giblin v. McMullen, Law Rep. 2 P. C. 317. The degree of care to be required of one who is intrusted with the property of another for reward is not less than that which is to be expected of one who deals with his own property. If the first instruction asked for is based upon a recognition of such an obligation, it is only equivalent to that which was given by the court. But if the comparison with those “ engaged in driving cattle for hire ” was intended to indicate that one who drives for hire is bound to a less degree of care “ because he is an hireling and careth not ” for his charge, it asked for a role which has never been recognized either as good law. or good morals. The evidence as to the usual practice or mode of proceeding ordinarily adopted by drovers was held at the previous hearing to be admissible upon the question of ordinary care, because it tended to show what had been found, by the experience of others, to be most judicious or ex-nedient in like emergencies ; not because they were drovers for ..ire as distinguished from owners driving their own cattle.

The defendant further insisted that the jury should be instructed that, “ if he did do the things that drovers of common prudence, engaged in the same business, ordinarily do, he was not guilty of such negligence as will make him liable in this action.” But this is not the legitimate application of evidence admitted to show the usual practice in similar cases. The usual practice is made up of particular instances of conduct, by the limited number of individuals similarly engaged, within the knowledge of the witnesses who may be called to testify. That which is admissible in evidence is, not the particulars, but what the witnesses state from their knowledge of those particulars to be usual, or the course ordinarily pursued. The character for prudence, of those whose conduct or acts go to make up this usual practice, is not required to be shown. It forms no part of the inquiry. The effect and purpose of the evidence is to aid the jury in forming their judgment of what the party was bound to do, or was justified in doing, under all the circumstances of the case. What had been done by others previously, however uniform in mode it may be shown to have been, does not make a rule of conduct by which the jury are to be limited and governed. It is not to control the judgment of the jury, if they see that in the case under consideration it is not such conduct as a prudent man would adopt in his own affairs, or not such as a due regard to the obligations of those employed in the affairs of others would require them to adopt. It is evidence of what is proper and reasonable to be done, from which, together with all the other facts and circumstances of the case, the jury are to determine whether the conduct in question in the case before them was proper and justifiable. We think the instruc-' tian asked for, in this particular, was not such as should have been given.

The instruction asked for, to the effect that “ the defendant was not obliged to make any outlay disproportionate to the compensation he received, to recover cattle that had strayed from the drove without his negligence,” and therefore that the price he received was “ to be taken into account ” upon the question of due diligence, was inadmissible. The price is undoubtedly graduated by the well known risks of the business, and accepted in view of those risks. The obligation to seek he recovery of straying cattle does not rest upon the ground that that special service is paid for in the consideration of the original contract to which it is incident. It arises because it is incident to the principal contract, and, as such, is covered by its consideration. When an emergency occurs to bring that obligation into operation and make it onerous, he is not justified in any lack of faithful performance because in that particular event his compensation has proved inadequate to the burden.

The fifth instruction requested is correct, and unobjectionable, if taken to mean only that the jury must find both neglect and that the loss occurred by reason of such neglect. But that instruction was, in effect, given. To have given it in the form asked was unnecessary; and might mislead, by seeming to require the jury to determine, with too much precision, to which particular act or omission the loss should be attributed, when they might think there were several which cooperated to produce the result.

The instruction given as to examining all the defendant’s conduct in relation to the cattle, “ in order to ascertain whether at any point of time to which their attention had been called he had been gnilty of any negligence,” could not have been understood to authorize the jury to render a verdict against the defendant on account of any such negligence, unless they also found that the loss was occasioned thereby, as he had already instructed them.

Upon the whole case the court are of opinion that there is no sufficient ground shown for setting aside the verdict.

Exceptions overruled.