Lou. & Nash. R. R. v. Ritter's Adm'r

JUDGE BENNETT delivered the opinion on the court. In May, 1876, tlie appellant’s passenger train, while en route to Louisville, came in collision with a cow, which was on the railroad track. The collision threw one of the passenger coaches from the track. The appellee’s intestate was in this coach as a passenger, having paid his fare from Glasgow to Louisville, and was injured by reason of the collision and throwing of' the coach from the track. The trial of appellee’s action against the appellant for the injuries received by his intestate in the collision resulted in a verdict and judgment for fifteen, hundred dollars in damages. Appellant has appealed from that judgment. Railway passenger carriers, in legal contemplation,, do not insure the absolute safety of their passengers, but they do bind themselves to exercise the utmost degree of human care, diligence' and skill in order to< carry their passengers safely. [371] It is meant by this rule: First, that the highest degree of practicable care and diligence should be exercised that is consistent with the mode of transportation adopted. Second, that competent skill should be possessed, which should be exercised in the highest degree. Tested by this rule, for the slightest neglect against which human prudence, diligence or skill can guard, and by which injuries occur to passengers, the carriers will be liable in damages. This high degree of care, diligence and skill extends not only to the running of passenger trains with a view to the safety of passengers, but to providing against defects in the road, cars or machinery, or any other thing that can and ought to be done in order to carry passengers safely. Among these duties, is that of keeping the track clear of obstructions, and of removing timber and bushes along the track on the land of the company, so as to keep the engineer’s view of the track in running the train unobstructed. A failure to do this, or any of the duties above mentioned, is negligence. Where .a passenger, being carried on a train, is injured by an accident occurring to the train, the legal presumption arises that the accident and consequent injury were caused by the negligence of the carriers. And the onus of disproving the presumption of negligence, by showing that the injury arose from an accident, which the utmost care, diligence and skill could not prevent, is on the carrier, or, in actions for ordinary neglect, that although negligent themselves, the injury to the passenger would not have occurred but for his own negligence. Of course, where death ensues [372] to a passenger by the willful neglect of the carriers, they are not allowed to rely upon the contributory negligence of the passenger as a defense. The foregoing views are sustained by the following authorities and leading cases: Redfield on Railways, vol. 2, pagé 229; Story oh Bailments, section 601; Jameson v. San José and Santa Clara R. R. Co., 55 Cal., 597; Pittsburg, C. & St. L. R. R. Co. v. Thompson, 56 Ill., 142; Pennsylvania Co. v. Roy, 102 U. S., 456 ; Railroad Co. v. Varnell, 98 U. S., 480; Railroad Co. v. Pollard, 22 Wall., 341; Meier v. The Pennsylvania Railroad Co., 64 Pa. St., 226; Ohio and Memphis Packet Co. v. McCool, 8 American and English Railroad Cases, 394; New Orleans, Jackson and Great Northern Railroad Co. v. Allbritton, 38 Miss., 274; Baltimore and Ohio R. R. Co. v. Worthington, 21 Md., 284. The three instructions given by the lower court on behalf of the appellee accord with the foregoing views of the law, except in this: The burden of proof was on the appellee to establish the accident and his intestate’ s injury by it. This being done, then the burden of proof was shifted to the appellant to show that the accident and consequent injury was not the result of its negligence. These instructions, taken alone, mean this ; but the fourth instruction, which was given at the instance of the appellant, puts the burden of proof on the appellee all the way through. This was error, and the instruction should not have been given. On the trial of the case, the appellant introduced as a witness J. T. Mansfield, who testified that he saw Ritter soon after he was hurt attending to business, [373] riding to town and playing croquet. On cross-examination, the witness was asked: “Did you or not say to Melvin Lowery, since the death of Ritter, that money would be no object to the railroad company, if it could find some person to state that Ritter was fishing and wading in the creek in bad weather, before his death % ” The answer was: “No, sir ; I never said that to Mr. Lowery.” Melvin Lowery was afterwards introduced by the appellee, but he made no reference whatever to Mansfield or to his evidence. Lawrence Lowery was introduced by appellee, and was asked “ if he had ever heard Mansfield say, that if the railroad company or Porter, their attorney, could find a man who would say Ritter had dabbled in the water, or gone fishing, that money would be no object with them.” The witness was permitted to answer, notwithstanding the objection of the appellant. The answer was, that he “had heard Mansfield make that statement.” Then follows: “To all of which the defendant excepted.” Mansfield had not testified in reference to Ritter’s having gone fishing or dabbling in the water. Therefore, his statement to Melvin Lowery could not be used as impeaching evidence, because it contradicted no fact that he had sworn to prejudicial to the appellee in reference to that matter. Again: if his statement to Melvin Lowery was competent as impeaching evidence, it should have been proven by Melvin Lowery and not Lawrence Lowery, because he was not asked if he had made the statement to Lawrence Lowery. The evidence was clearly incompetent, and highly prejudicial to the appellant, because it tended to con [374] vict the appellant of a willingness, at least, if not of the fact, of resorting to foul means to procure evidence, and to throw a cloud upon the integrity of the evidence that the appellant did introduce relative to Ritter’s having gone fishing and exposing himself while fishing. The bill of exceptions shows that the exception: “To all of which the defendant excepted,” follows the testimony of Lawrence Lowery, instead of immediately following the overruling of the objection to the competency of Lawrence Lowery’s evidence. The appellee did object to the competency of the evidence before it was delivered. The objection was overruled. And the expression : “To all of which the defendant excepted,” follows the evidence, when, technically speaking, it should have immediately followed the ruling of the court. But we think that it sufficiently appears from the record, that the appellant did except to the ruling of the court at the time; the bill of exceptions, in this particular, being simply awkwardly arranged. For this error the case is reversed and remanded, with directions to grant appellant a new trial, and for further proceedings consistent with this opinion.