23 Ill. 357 | Ill. | 1860
It is urged that the court erred in giving the second instruction asked by plaintiff below. It assumes, as a legal principle,ythat common carriers of persons are required to do all that human care, vigilance and foresight reasonably can under the circumstances, and in view of the character and mode of conveyance adopted, to guard against accidents and consequential injury, and if they neglect to use such precaution, they are to be held strictly responsible for all the consequences which grow out of such neglect. It is insisted that this rule is laid down too broad, when it requires all the care, vigilance and foresight of which the human mind is capable. This is doubtless true, but in this case the rule was not so stated. The instruction only requires this degree of care in reference to, and in view of the circumstances, and of the mode adopted, so as to guard against accident. While courts, in announcing the rule govern-'" ing common carriers of persons, have said that they must be held to the utmost degree of care, vigilance and precaution, it must be understood that the rule does not require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted, and render its use impracticable. Nor does it require the utmost degree of care which the human mind is capable of inventing. Such a rule would involve the expenditure of money and the employment of hands, etc., in repairing the public highway over which the carrier has necessarily to pass, so as to render it perfectly safe; and would prevent all persons of ordi • nary prudence from engaging in that character of business. But the rule does require that the highest degree of practicable care and diligence shall be adopted, that is consistent with the mode of transportation used. To require anything less, would be to leave the lives of persons in the hands of the reckless, and unprotected against the negligent and incautious. This instruction announces this rule and nothing more, and was therefore properly given.
It is likewise insisted, as Ward, who was also a passenger, was, at the time the accident occurred, acting as the driver, that the proprietors are therefore not responsible for the injury sustained by defendant in error. It was the duty of the proprietors of the stage line to furnish competent and careful drivers, and any neglect of that duty must render them liable for injuries sustained by passengers by reason of its omission. When Ward was permitted to drive the coach, to relieve the regularly employed driver that had been put in charge of the coach, he for the time being became their driver, and whether he undertook to drive at the request of the proprietors, their agents, or of the regular driver on the line, can make no difference. The driver was unwell when he left his station, and should have been relieved by the substitution of another competent driver, able to perform the duty. The proprietors, by themselves or their agents, have control of the horses and coaches, and when any one else is permitted to assume their control, such person is, for all purposes of a driver, their agent, and if incompetent, unskillful or careless, and injury results, the proprietors are liable for the damages to the same extent as if he were their regularly employed driver. They must also furnish drivers who are familiar with the road over which they have to pass, so that they may avoid the dangers incident to its travel. In this case it is apparent that if Ward had known the road, the accident would not have occurred. The evidence shows, that instead of passing upon the centre of the road at the place where the accident occurred, that the drivers on this line had been in the habit of traveling along and in the ditch at the side of the road. The horses being accustomed to that road, were constantly making efforts to get into it, while Ward was endeavoring to keep them in the centre of the road. It was this effort of. the horses to get into the side track which carried the wheels of the coach over the bank of the ditch, and overturned it, which occasioned the injury of defendant in error. Had Ward been even as well acquainted with the road as were the horses, the accident would not have happened. This was one of the perils of the road that could not have occurred with a driver familiar to it, exercising ordinary prudence and-care. And the plaintiffs' in error having failed to furnish such a driver, must he held liable to make compensation for damages resulting from that neglect of duty.
It was again insisted that the court erred in permitting counsel, in arguing the case before the jury, to refer to adjudged cases of a similar character. The correct practice in civil cases is never to permit counsel to read authorities to the jury. It is the duty of the court, when asked, to instruct the jury as to what the law is, as applicable to the case, and it is their duty to receive it as given, and apply it to the facts of the case, as they may find them. Such a practice would be to appeal to the jury to determine what the law is, which is beyond their province, and would be calculated to render the administration of justice uncertain, and should therefore not be permitted. But in this case it does not appear that counsel read law to the jury, or read from adjudged cases. Reference was only made to them for illustration, and the court, to prevent its having any improper influence upon the minds of the jurors, very properly instructed them that they should disregard these cases in forming their verdict.
The record presents no error requiring the reversal of the judgment of the Circuit Court, and it is therefore affirmed.
Judgment affirmed.
