| S.C. | Nov 15, 1873
The opinion of the Court was delivered by
The proposition submitted by the charge of the Circuit Judge was, that a railroad company is responsible for injuries done to persons and vehicles while passing along a highway, at a point where the track of the railroad crosses such highway, in consequence of being struck by a locomotive belonging to such railroad company, running in the course of its ordinary and lawful business, and under the management and control of its servants, even though such injury was the result of accident alone without negligence or fault on the part of such company or its servants.
The case of Danner vs. Railroad, (4 Rich., 329,) while carrying the liability of railroad companies, in cases of injury to third persons other than passengers, to the farthest point reached in this country, yet concedes that no such liability results as a consequence of mere accident alone.
It appears from the record before us that the evidence submitted to the jury bore on the question of negligence alone. That of the plaintiff tended to establish negligence on the part of the defendants, and that of the defendants to refute the charge of negligence as against themselves and to establish it on the part of the plaintiff.
It was for the jury to say what force this evidence was entitled to receive in its bearing on the issue of negligence presented by the pleadings. The Circuit Judge was called upon by the nature of the pleadings and evidence simply to state the law applicable to a case of alleged negligence. To submit, under such circumstances, the proposition that liability ensued, though negligence was not proved, was not only an error in point of law, but one operating necessarily to the prejudice of the defendants.
It remains to consider whether the language of the charge supports the conclusion already stated as to its character.
The charge assigns as the reason of this rule that the defendants were bound to slacken their speed so as to prevent an accident occurring. This assumes that there was a legal obligation to slacken the speed of the train at the time and place of the accident. There was no such legal obligation. If they were bound to slacken their speed at that time and place, it was because special circumstances existed rendering that course necessary under the rule of law imposing due and ordinary care upon the defendants. As to the existence of such a necessity it was the province of the jury to determine as matter of fact.
Again, the charge holds that it was not necessary for the plaintiff to look out for the train. There is no rule of law absolving a person from looking for the train. He is bound to use ordinary care, and that involves a reasonable use of all his senses. The question, whether reasonable care was employed by the plaintiff to prevent injury, is one for the jury alone, to be determined according to the facts of the particular case.
We must, therefore, conclude that the rule, as submitted to the jury, tended to render the defendants responsible, though the injury vras the result of an accident alone.
It is contended by the appellants that the charge that the defendants were responsible for “ great ” care is inconsistent with the rule of ordinary care by which railroad companies are bound under such circumstances. The charge is certainly obscure in this respect. It is true that on applying the rule of ordinary care, the actual amount of care required under the facts of any particular case is varied according to whether the instrument occasioning damage is readily controlable, or in its nature dangerous, so that in one sense greater care is demanded from one who runs a locomotive engine than from one who drives a cart. The rule of ordinary care is, however, equally applicable to both, but must be
There should be a new trial.