Central Railroad & Banking Co. v. Ryles , 84 Ga. 420 ( 1890 )

Bleckley, Chief Justice.

1. The code, §3Q83, is in these words: “A railroad company shall he liable for any damage done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” The court instructed the jury expressly that “ If the defendant has made it appear that its agents or employes, at the happening of the injury and in and about the service resulting in the injury to the plaintiff, exercised all ordinary and reasonable care and diligence, then the plaintiff is not entitled to recover.” The duty of the plaintiff to be free from fault was also covered by the charge. It is complained that the court, after charging the jury “ that any one entering the employment of a railroad company enters it undertaking to bear all the risks incident to that employment,” then erred in charging as follows: “That if it is of a dangerous character, he bears the risks incident to an employment of a dangerous character, and that the more dangerous the employment is, the greater care he is required to take while engaged in that employment; but that carries with it also the obligation on the part of the other employes of the railroad company to exercise greater skill and care on their part. If the employe is put to perform a dangerous duty, and there are certain duties resting on the other employes to protect him or give warning or anything of that kind in connection with that duty, the more dangerous the duty the greater care and skill is required on their part. If in connection with a duty to be performed by any employe it is the duty of other employes to give warning or to give direction, the more dangerous his duty is, tlie more careful they should be in the performance of theirs.”

The standard of ordinary and reasonable care is invariable, such care being that of every prudent man. Code, §2061. But the care of a prudent man varies according to circumstances dependent upon the degree of danger. Beach on Contrib. Negl., p. 22; 2 Thomp. Neg. 982, §11 and notes; Deering on Neg. §§7, 210; Wharton on Neg. §§47, 48 et seq.; Cayzer v. Taylor, 10 Gray, 274; Morgan v. Cox, 22 Mo. 373; Nitro-Glycerine Case, 15 Wall. 536, 537 ; Wabash R. Co. v. McDaniels, 107 U. S. 454. “ What is the precise legal intent of the term ' ordinary care ’ must, in the nature of things, depend upon the circumstances of each individual case. It is a relative and not an absolute term. Chancellor Walworth, in the case of the Mayor, etc. of New York v. Bailey, says: ' The degree of care and foresight which it is necessary to use ’ (in any given case) ' must, always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence which is to be anticipated and guarded against. And it should be that care and prudence which a discreet and cautious individual would, or ought to, use if the whole risk and loss were to be his own exclusively.’ This doctrine is declared in many other cases. He who does what is more than ordinarily dangerous, is bound to use more than ordinary care, that is to say, it will require greater care under those circumstances to amount in law to ordinary care than it would if the undertaking were less hazardous. And the measure of diligence required of him is greater or less in the direct ratio of the risk his acts entail upon others. The duty of a plaintiff is to be measured by the same rule that is applied to a defendant, and just in proportion as the danger increases must the care- of the plaintiff be increased, if it is to be held ordinary care under the circumstances. It is clear that what might be entirely prudent in one condition of things would be reckless and grossly negligent in another.” Beach on Contrib. Neg., supra. It thus appears that, whilst ordinary care is the standard, what amounts to such care depends upon the danger and other circumstances involved in the particular case. This doctrine the court recognized in its charge, and applied it to the conduct of both the plaintifi and the other servants of the defendant connected with the case. It seems to us that there was no error in so doing. "What has been said disposes of the second ground of the motion for a new trial as well as the first.

2. The’ third ground of the motion, touching the promulgation of rules, is free from error. Brunswick & Western Ry Co. v. Clem, 80 Ga. 534, 541 ; Carroll v. East Tennessee, etc. Ry Co., 82 Ga. 452.

3. The exclusion of evidence to show that “Byles, the plaintiff, was in the habit of going in between the cars to make couple of the cars unnecessarily; that he would go in without being told to do so; that he would frequently run in to make the coupling and take the coupling away from Parker, who was an expert; that he was too quick in attempting to make couplings, — all at other places and on other occasions than this, but along this line of road and while engaged in this service,” was not error. In this instance Byles was not acting under his general habit, but under the orders of the conductor. He was told to make the coupling and, whether he was too quick or not in ordinary cases, he was not more quick iu this instance than his duty in obedience to orders required of him. It would seem that a man’s habit to act precipitately should not prejudice him when his duty to act has been determined by a superior and not by himself.

4. That the backing of the train “ was very carefully done,” was matter for the judgment of the jury, and not for that of the witness. There was no error in excluding this part of the testimony of Foran. The same may be said as to the exclusion of the testimony of the ¡same witness to this effect that “ There was nothing ■done by any of the employés carelessly or negligently, that would produce the injury to the plaintiff.”

5. If we were trying the case, we might be much perplexed, even distressed, to arrive at the verdict which the jury rendered. But we must be mindful of the dif..ference between their province and Our own, and as the trial judge was satisfied with the verdict, our dissatisfaction with it, not being in a higher degree than it is, is of no consequence. We cannot pronounce that any' ■error was committed in overruling the motion for a new trial. Judgment affirmed.