Philadelphia, Wilmington & Baltimore Rail Road v. Kerr

Cochran, J., delivered the opinion of this Court. The opinion recently delivered by this Court in the case of The Balto. & Ohio R. R. Co. vs. Breinig, applies to, and practically decides, the'main point raised by these exceptions. The jury here, as in that case, were instructed by the Court that “ it was the duty of the defendant — now appellant — to exercise the' utmost care and dilligence which it was in their' power to- employ, considering the nature of the business in which they were engaged.” Had the case been one of injury to a passenger while in course of transportation by the' cars or boat of the appellant, this instruction would hav« [530] been appropriate, for in that class of cases the carrier, as was said in Balto. & Ohio R. R. Co. vs. Worthington, is bound to exercise the highest possible degree of care in all things affecting the safety of the passenger. This case, however, is ' a different one. The effort is to recover damages resulting from a collision of the appellant’s steamboat with a canal boat belonging to the appellees, and by which the canal boat and cargo were totally lost. The canal boat had started from her berth and was on her way, under a light wind, down the Susquehanna river* and while holding her course, was struck by the steamer Maryland and sunk. The steamer belonged to the appellant and was used in transporting its engines, cars and passengers across the Susquehanna between Perry-ville and Havre'-de-Grace. Both boats were on a common highway, engaged in avocations wholly independent of each other, and without any relation of contract or trust Upon which any special duty from either to the other could be predicated* each was in the pursuit of a lawful business, and their relations were in all respects precisely like those disclosed in Bremig’s case. IJndef these circumstances the appellant, as was said in the case referred to, was- not subject to a rule so rigorous as this instruction prescribes, but “Was required to exercise such reasonable care to avoid injury to the appellees as ordinary prudence would suggest,” that is, “such a degree of care and attention as experience has fo&’nd reasonable and necessary to prevent injury to others in like cases.” This is what is understood, by the terms “ordinary care and diligence.” It should not be forgotten, however, that these terms are comparative, and always bear a difeet relation to the particular circumstances- of each case. The increasing probabilities of danger require a corresponding increase of care and vigilance to avoid it. “ The degree of vigilance which the law exacts, by the requirement of ordinary care, must vary with the probable consequences of negligence* [531] and also with the command of means, to avoid injuring others, possessed by the person on whom the obligation is imposed. Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight.” Kelsey vs. Barney, 2 Kern., 425. And it may be said, in general, that any failure by one engaged in the pursuit of his own occupation or business, to observo precautionary rules or regulations established by competent authority, to guard against accidents and prevent injuries to others, is in legal contemplation, a want of ordinary care. It matters not whether the business be prosecuted on land, on the water, or upon both, the established rules for regulating the course of conduct on either, so far as they relate to the safety of others, should be duly regarded to satisfy the first requirement of ordinary care. (Decided July 19th, 1866.) It follows from the views expressed that the appellees’ first and second prayers were properly rejected. They required of the appellant a degree of care and dilligence not -warranted by the nature of the case, and in that respect their rejection was proper. The 1st and 2d prayers of the appellant, we think, wore also defective. They are too general and fail altogether to direct the attention of the jury to important facts which it was proper for them to consider in passing on the question of negligence. It is unnecessary to refer to the evidence contained in the bill of exceptions further than to say that it sustains this objection to those prayers. In our opinion there was no error in rejecting them. The judgment will be reversed and a procedendo awarded. Judgment reversed, and procedendo awarded.