Shea v. Potrero & Bay View Railroad

By the Court, Bhodes, J.: Many rulings of the Court in the admission or exclusion . of evidence are specified by the defendant in the statement on new trial; but we are of the opinion that they are not erroneous. The defendant objects to the fifth instruction, given to the jury at the request of the plaintiff. The jury were informed by that instruction, that while the defendant has the right to run its cars upon a public street, where the public have an equal right to travel, and where it is presumed they will [427] travel, it “must exercise such care and precaution for the purpose of avoiding accidents, endangering property or person, as a reasonable prudence would suggest and which it was in their [its] power to employ.” The defendant insists that the corporation was required to exercise only the ordinary care of a reasonable person; and contends that the instruction requires a higher degree of care. The rule laid down in that instruction, does not materially differ from the rule contained in the eighth instruction given at the request of the defendant—that the degree of care and skill due by the defendant to the plaintiff, under the circumstances shown in this case, is only that which a skillful and prudent person would ordinarily use under the like circumstances. The difference between a reasonable prudence and the ordinary prudence of a reasonable person, is merely verbal, and does not extend to matter of substance. The degree of prudence required of a party is dependent on the nature of the agency employed, as well as the time, place, and circumstances of its employment. In running a car loaded with earth on a down grade, in the night, with few lights in the immediate vicinity, a reasonable person would exercise a greater degree of care than he would in running a car where it would more readily be controlled, and in the day-time; and such prudence would not, in any respect, fall short of a reasonable prudence. It would be such prudence as a reasonable man would, under such circumstances employ, in order to avoid accidents and injuries to the persons and property of others. The tenth instruction requested by the defendant and refused by the Court, is to the effect that if there was a roadway in the street, to the west of the railroad track, upon which the plaintiff might have walked, that if the plaintiff knew of such way and failed to use it, that if he knew or had reason to know that he might meet with danger while walking on the railroad track, and still continued to walk thereon until the injury occurred, he was guilty of contribu [428] tory negligence. If this be law, then the public have not the same right to travel along a street and every part of it, on foot, or in their own vehicles, that a railroad company has to run its cars along the street; for if a person, while walking or driving along the track of a railroad in a street, is injured by a street car, which was being propelled without any care or prudence, is denied all relief, for the sole reason that he might have walked or driven along the side of the railroad track, then such person has not an equal right with the railroad company to the use of one portion of the street. That construction of the law would virtually give the railroad company an exclusive right to the use of the portion of the street upon which its track was laid. The company, however, as we understand the law, has only an equal right with the traveling public to the use of the street, with some few exceptions not material to the question, which arise entirely from the fact that the cars are designed to run only on the railroad track, such as that when an ordinary vehicle meets a car on its track, it must give way to the car. The company is not authorized to run its cars recklessly, carelessly, or without reasonable prudence, and to answer the person who demands relief for injuries sustained by being run over by its car, that if he had not been on the railroad track, he would not have been injured—that it was contributory negligence on his part, to walk on the track, instead of the space by the side of the track. Such person is authorized to walk on the track, he using reasonable care and prudence to avoid injuries, but he is not required to abandon the track in order to avoid possible injuries, which may result from the carelessness of the company. The sixth instruction, given at the plaintiff’s request, was objected to by the defendant, on the oral argument, on the ground that it ignored the rule that there must be no want of ordinary care on the part of the plaintiff. The jury were fully instructed on the point of contributory negligence on [429] the part of plaintiff; and it was unnecessary to again repeat it while instructing as to what would amount to negligence on the part of the defendant—that being the point of the sixth instruction. The defendant excepted to the plaintiff’s eleventh instruction, in which the jury were told that in. estimating damages they might take into consideration the bodily pain of plaintiff, his loss of time, his permanent disability caused by the injuries, etc., if those facts were proven, “ together with the further fact, if such fact is proven to your satisfaction, that he is a man who has to depend upon his manual labor for a living.” The defendant, in argument, limits the exception to the last portion of the instruction, that which is above quoted. The plaintiff makes the point, that as the exception went to the whole instruction, and as the instruction contains several propositions, some of which are law, the exception is of no avail. The plaintiff’s objection cannot be sustained. It has been the constant practice of this Court to entertain an exception to an instruction given at the request of one of the parties, though it be composed of several legal propositions. The rule in that respect is not the same as it is in the case of an exception to the charge of the Court. In the latter case the party excepting must point out the portion of the charge to which objection is made; but if a party procures the Court to give an instruction, which is composed of several legal propositions, the opposite party is not required to' particularly specify the proposition which he deems objectionable. Whether the distinction be well founded or not, it is sufficient to say that such is the long established practice of this Court. The proposition that the jury may take into consideration the fact, if it was proven to their satisfaction, that the plaintiff “ is a man who has to depend upon his manual labor for a living,” cannot be sustained on principle, and is not sup [430] ported by any authority which has been brought to our notice. In cases like the one at bar, it is held by some of the authorities that the plaintiff is entitled to show the character and extent of the business in which he was engaged previous to his being injured, together with the incapacity, caused by the injury complained of, to transact such business, so as to enable the jury to arrive at the proper estimate of the damages sustained by means of the injury; but the damages are not in any manner dependent on the wealth or poverty of the plaintiff. Judgment and order reversed, and cause remanded for a new trial.