Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Brigham

Welch, C. J. In the first paragraph of the court’s instruction we think the law of the case is correctly stated. If the defendants, in the construction and maintenance of the building, used that degree of care which men of ordinary prudence are accustomed to employ in like-business, they were not liable. Had the court stopped with this proposition there clearly would have been no-error in the charge. But the court went further, and told the jury that the defendants were bound to provide against' all stornjs which could reasonably have been anticipated, and by plain implication told them that the defendants were-bound to provide against all storms that were not “ unprecedented,” or that were of a kind that had ever happened within the range of human “ experience.” Taken by itself,, this latter part of the charge is clearly erroneous, and in conflict with the rule as first and, as we think, correctly-laid down by the court. The whole charge, taken together, to say the least, was calculated to mislead the jury. Two rules, apparently in conflict with each other, were laid down for their guidance, and it is impossible to know which they followed. The general custom of prudent persons in such cases, and not the absolute requirements of the occasion, is the true standard by which the defendants should be tried. They were only bound to come up to the fair average-of careful and prudent men. There are other assignments of error made in the case, but we only deem it necessary to say of them that we do not deem them maintainable. Judgment reversed, and cause remanded.