Payne v. Halstead

Moran, J. This appeal is from a judgment recovered by appellee for damages received by her through the capsizing of a coach in which she was riding, and which, it is alleged, was owned by, and at the time of the accident under the control of, appellant. The facts are, that a firm of real estate agents desiring to take a party of guests upon an excursion to view lands which said agents had for sale, arranged Tyiih appellant to furnish a tally-ho coach, team and driver to carry the party out and back for a contract price of $25. The driver directed as to the loading of the coach with those going on the excursion, of whom appellee was one, dividing the party about evenly outside and inside the coach, and one of the hirers of the coach sat beside the driver and gave him orders where to go. The party were driven through the city and out through and beyond Humboldt Park and over and upon certain streets which were unpaved. In making a turn on one of these unpaved streets to bring the coach in front of a pavilion, as the driver was directed to do, one of the wheels went into a mud hole and the coach tipped over, whereby appellee received the injury complained of. Appellant complains that the trial court assumed that he was on this occasion a common carrier of passengers and applied to him the rule of law as to the liability of a public carrier of passengers, which rule, he contends, is not the proper measure of his responsibility. The instructions given for the plaintiff do assume that appellant was in the transaction a common carrier of passengers. The second instruction given to the jury at the request of the plaintiff, sufficiently indicates the stringent rule applied as against appellant. Said instruction is as follows : “ You are further instructed that the upsetting of the stage coach in this case, if proven to the satisfaction of the jury, is prima facie evidence of neglect and the plaintiff need prove nothing more; but it devolves on the defendant to prove that his driver acted with the utmost skill, prudence and caution, and that the injury sued for was caused without the least negligence or want of skill or prudence on the part of the driver. And if the defendant fails to satisfy the jury that his driver exercised the utmost degree of care and skill and prudence, by reason of which failure the injury was caused, the defendant is liable.” This instruction is a statement of the strictest and highest degree of diligence that is required of public carriers of passengers. It requires the defendant to provide for safety as far as human foresight will go. Such rule is not applicable to a livery stable keeper who lets his team and vehicle, accompanied by a driver of his own selection, for hire to go upon a particular journey. Such livery stable keeper is not a common carrier of passengers, and does not assume the duties and obligations of such a carrier. He is at most a private carrier for hire, and is required to exercise the same measure of skill and care which is applied to a person engaged in any special pursuit in which he undertakes to perforin services for others for compensation. Such a one undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance, but ordinary skill, diligence and prudence are all that the law exacts from him; that is, the exercise of such care and skill as prudent and cautious men experienced in the business are accustomed to use under similar circumstances. Hutchinson on Carriers, Sec. 501, note; Shoemaker v. Kingsbury, 12 Wall. 369. The highest degree of diligence is the rule as to public carriers of passengers, and public policy forbids its relaxation ; but a private carrier for hire may discharge himself from liability for accident by showing that he exercised the usual skill, care and diligence ordinarily exercised by those engaged in the same pursuit, to furnish a safe coach, harness and horses, and a competent and careful driver. While it is correct to say, as was said in the instruction, that the upsetting of the stage coach was prima facie evidence of negligence, which cast on defendant the duty of explaining the accident and the burden of proving that proper care and diligence had been exercised on his part, yet when he furnishes evidence which convinces the jury that he has exercised ordinary and reasonable skill and caution under all the circumstances of the case, and that he has been guilty of no negligence, he discharges himself from liability and rebuts the prima facie presumption arising from the overturning of the coach. Such presumption is based on the fact that the owner furnishes the coach and puts his driver in the management of the team, and the overturning of the coach, in the absence of other explanation, indicates and tends to prove negligence. That there is such overturning is a fact from which the jury may infer negligence. Le Baron v. East Boston Ferry Co., 11 Allen, 312; Kearney v. London, 5 L. R. Q. B. 411; Mullen v. St. John, 57 N. Y. 567; I. C. R. R. Co. v. Phillips, 49 Ill. 234. The fourth instruction given to the jury at the request of the plaintiff was as follows: “ The jury are instructed that it was the duty of the defendant to furnish in addition to a suitable and sufficient conveyance a fully competent, careful and trustworthy driver, who was well acquainted with the road, and if the defendant neglected to do so and by reason thereof any injury resulted to the plaintiff, the jury must find for the plaintiff.” This instruction vms also erroneous, and required the same qualifications in a driver of a coach let under the circumstances of this case as are required in the driver furnished by a proprietor of a public line of stage coaches plying regularly from point to point as a public carrier of passengers and over a regular stage road. In. such cases there is reason for requiring that the driver shall not only be competent and skillful, but well acquainted with the road over which the stage line contracts to carry its passengers; but there is no reason for requiring such a qualification from the driver of a team and coach let to convey a load of passengers to a given locality by such routes and over such roads as the hirer may, from time to time during the progress of the journey, suggest. All that can be required in such eases is that the driver shall be possessed of such skill and caution and experience as is usual and ordinary in persons exercising such calling in such special pursuit, and if in driving over roads the wheel of the vehicle sinks into a mud hole, of the existence of which the driver had no knowledge, and which by the exercise of such reasonable skill, caution and prudence he could not discover, and an injury results, his master or the proprietor of the vehicle and team should not be held liable. The evidence shows that prior to the excursion it had been raining and there were many places in the unpaved streets where water stood in puddles; and to distinguish from the driver’s seat between those which were shallow and those which were deep, might he very difficult and even impossible, and the best skill and care in driving on such a road might not avail to avoid an accident. There was evidence from which the jury might have found that the defendant had furnished a safe and suitable coach and suitable bar-' ness and horses—indeed, there was no evidence to the contrary—and that he had also furnished an experienced driver, who had been accustomed to driving coach teams and who was a careful and competent man, but there was no evidence and probably could be none that the driver was well acquainted with, the roads over which the hirer directed him to drive. It follows then that while the jury may have believed that though the defendant had discharged to the full all that the law required of him, they were still bound to find a verdict against him because he did not furnish a driver well acquainted with the road. The question whether the driver exercised the care and skill in the management of the team and coach that prudent and cautious men experienced in that business are accustomed to use under similar circumstances, should have been left to the jury to determine. It is unnecessary to discuss the various instructions given and refused by the court; enough had been said to show that the trial judge proceeded upon a theory that the utmost degreé of diligence that could be required from a common carrier of passengers was the measure of appellant’s responsibility. This view was erroneous, and the judgment must therefore be reversed and the case remanded. Reversed and remanded.