Marable v. Railroad

WaleeR, J., after stating the case: We can find no fault with the instructions given by the Court to the jury, when they are considered together and construed in the light of the facts which the evidence tended to establish. The Judge gave the plaintiff the full benefit of the circumstances attending the injury as evidence of negligence and charged the jury that the defendant must show that the jolting of the train was unavoidable in order to acquit itself of negligence. A carrier of passengers is not an insurer, as is a carrier of goods. He is therefore not absolutely liable for the safety of the passenger, as the carrier of goods is for the safety of the goods intrusted to his care. His liability is based on negligence, and not on a warranty of the passenger’s freedom from all the accidents and vicissitudes of the journey. The doctrine that the carrier of goods is an insurer was adopted for reasons peculiar to the undertaking, and because of the unlimited control of the carrier over the property. It was first announced, we believe, by Lord Holt in the famous case of Coggs v. Bernard, 2 Ld. Raymond, 909 (1 Smith’s L. C., 369), in these words: “The law charges the person thus intrusted to cqrry goods as against all events but the act of God and the enemies of the King,” and this dictum of his was formally accepted as a principle of the common law by solemn decision in Forward v. Pittard. 1 Term Rep., 29; Christie v. Griggs, 2 Camp., 19. In the latter case Lord Mansfield drew the distinction between the two classes of carriers when he tersely said: “There is a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier is answerable at all events. But he does not warrant the safety of passengers.” The distinction was recognized in Aston v. Heaven, 2 Esp., 532; Crofts v. *562 Waterhouse, 3 Bing., 319 ; and. Harris v. Costar, 1 Car. & P., 636, and finally settled in tbe leading case of Readhead v. Railway, L. R, 4 Q. B., 379; Bridgers v. Railway, L. R., 7 H. L., 231. In this country the measure of liability of the two kinds of carriers has been practically settled according to the English rule. Ingalls v. Bills, 9 Metc., 1; Stokes v. Saltonstall, 9 Peters, 181; Railroad v. Ball, 53 N. J. Law, 283; Palmer v. Canal Co., 120 N. Y., 170; Gilbert v. Railway, 160 Mass., 403; Meier v. Railroad, 64 Pa. St., 225. This Court has recognized the distinction and erected different standards of duty for the two classes, in Hollingsworth v. Skelding (at this term); McNeill v. Railroad, 135 N. C., 682 (s. c., 132 N. C., 510), and Everett v. Railroad, 138 N. C., 68. A carrier of goods can only relieve himself of his common-law liability as an insurer for loss or damage not resulting from his negligence by a contract reasonable in its terms and founded upon a valuable consideration: Everett v. Railroad, supraj but this principle does not apply to the carrier of passengers, because he is under no such liability. 1 Fetter on Carriers, sec. 2; 6 Cyc. of Law, 590-594. In this view of the law, the evidence as to the permit was harmless. The exceptions of the defendant are so placed in the charge that we are at a loss to know the particular proposition of law as laid down by the Court, which was considered objectionable. If it was supposed that the defendant was bound to exercise the highest degree of care, and that the Court failed to raise the degree to the required maximum, it is sufficient to say that there was no request for such a special instruction, and the omission, if there was one, is not therefore available to the defendant. The many different-forms of expression used in stating the rule of liability all recognize substantially the same test, the difference in statement being for the purpose of applying the rule to different states of facts. Thus it has been said that the carrier is *563 required to exercise that bigb degree of care for tbe safety of tbe passenger wbicb a prudent person would use in view of tbe nature and risks of tbe business, or, in general, tbe highest degree of care, prudence and foresight to prevent injury to tbe passenger wbicb tbe situation and circumstances demand in view of tbe character and mode of conveyance, and which a prudent man engaged in tbe business, as usually conducted, would employ, and wbicb is reasonably practicable and consistent with tbe efficient conduct of tbe particular business and tbe free use of all proper means and appliances. Tbe standard of duty should be according to tbe consequences that may ensue from carelessness. 6 Cyc., 591-593 ; Railroad v. Horst, 93 U. S., 291. Whatever tbe rule may be, tbe plaintiff has no right to complain of its misapplication in this case, as tbe Court gave all of tbe instructions be asked for, and, besides, tbe presiding Judge finally brought tbe liability of tbe defendant to tbe true test, which is negligence or tbe failure to exercise proper care,_under the circumstances; and be told the jury that the defendant would be liable unless tbe injury was unavoidable. In taking passage on a freight train, tbe plaintiff assumed the usual risks incident to traveling on such trains, when managed by prudent and competent men in a careful manner. While life and limb are as valuable, and tbe right to safety may, perhaps, be tbe same in the caboose as in tbe palace-ear, yet it must be remembered that in tbe operation of freight trains tbe primary object is the transportation of freight, and tbe means and appliances used are, and are known by tbe passenger to be, adapted to that special business; and therefore one who travels on such trains must expect that jolts and jars will occur, and be necessarily takes tbe risk of those wbicb are not caused by the negligence of the carrier’s servants, but which are usual and consequent *564 on snob mode of transportation. 1 Fetter on Carriers, sec. 17; Railroad v. Horst, 93 U. S., 291. It seems to ns that the charge of the Court covered the entire case and, when properly construed, submitted it fairly and correctly to the jury under all the circumstances; and when this is done'the parties have no just ground of complaint, or for asking anything more, especially if they have failed to request more definite instructions. The charge appears to be in accordance with the law as stated by this Court in Wallace v. Railroad, 98 N. C., 494; s. c., 101 N. C., 454; Smith v. Railroad, 99 N. C., 241; and his Honor perhaps was guided by those cases. The defendant moved in this Coui't to dismiss the appeal under'Rule 20, for failure to comply with the requirements of Rule 19. A similar motion was made at this term, based upon substantially the same grounds, in Davis v. Wall, and we enforced the rules to the extent of dismissing the appeal in that case. We again specially direct the attention of the profession to those rules and to that decision, as being very proper for their careful consideration when preparing cases on appeal. We have discussed this case at some length, because the principles involved are of vital importance, and as the practical result will be the same, we prefer to decide it on the merits, instead of dismissing the appeal. No Error.