Whittacker v. Brooklyn, Queens County S.R.R. Co.

Full title: JULIUS WHITTACKER, Respondent, v . BROOKLYN, QUEENS COUNTY AND SUBURBAN…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 26, 1906

110 App. Div. 767 (N.Y. App. Div. 1906)

97 N.Y.S. 414

Opinion

January 26, 1906.

I.R. Oeland [ George D. Yeomans with him on the brief], for the appellant.

Frederick S. Martyn, for the respondent.

GAYNOR, J.:

The learned trial judge charged the jury that in unfastening and handling the glass electric light bulb the defendant's servant "was bound to use a high degree of care," and this was excepted to. There is indeed only one rule of care, i.e., that of ordinary care, i.e., that care which persons of ordinary prudence would exercise in the circumstances. Ordinary care in some circumstances is nothing short of the highest degree of care; while in other circumstances much less, and sometimes very little, care would satisfy the requirement of ordinary care. What ordinary care is varies with varying circumstances; the greater the danger the greater the care required, but all the while the standard is ordinary care.

The courts of this State have determined as matter of law that the care required of carriers of passengers in respect of the construction and care of their roadbeds, machinery and cars is the highest degree of care which human prudence and foresight can suggest ( Stierle v. Union Railway Co., 156 N.Y. 70), but it was quite unnecessary, for juries knew it all along, namely, that ordinary care in such cases required just that.

But our courts stopped there, and have not essayed to establish a scale of care, as low, high, higher, highest. Juries know the varying scale of care, according to the varying circumstances of each case, embraced in the phrase ordinary care.

But I do not see that this judgment needs to be reversed because the learned trial judge ruled as a matter of law to the jury that a "high" degree of care was required in this case. It were well if he had omitted it, but it is entirely evident from reading the case that it did no harm. The whole subject is a harmless one.

The judgment and order should be affirmed.

JENKS and RICH, JJ., concurred; HOOKER and MILLER, JJ., concurred in result.

Judgment and order of the County Court of Kings county unanimously affirmed, with costs.