Opinion
09-04-1854
FARISH & CO. v. REIGLE.
Michie and Baldwin, for the appellant, insisted: G. N. Johnson, for the appellee:
1. Carriers of passengers by stages are liable for injuries resulting from the slightest negligence on the part of the driver or proprietor of the stage; and they are bound to use the utmost care and diligence of cautious persons to prevent injury to the passengers.
2. Where a passenger is injured by the upsetting of the coach, the presumption is, that it occurred by the negligence of the driver; and the burden of proof is on the proprietors of the coach, to show that there was no negligence whatsoever.
3. Though the proprietors of the coach may show that it was reasonably strong, with suitable harness, trappings and equipments of sufficient strength, and properly made, and that the driver was careful, of reasonable skill and good habits, with steady horses not like to endanger the safety of passengers; yet, if the upsetting of the coach is caused by the running off of the horses, and such running off of the horses might have been arrested if the utmost care and diligence of very cautious persons had been exercised, the proprietors of the coach are liable for the injuries sustained by a passenger.
4. If the coach is upset by the running off of the horses, and if they ran off not because they were accidentally frightened, but because the blocks were out of the brake, causing the stage to run upon them; and if the running off of the horses might have been prevented if the horses had been properly harnessed, or if the utmost care and diligence of a cautious person had been used to secure the blocks in the brake, the proprietors are liable.
5. Carriers of passengers by stages are bound to provide not only good coaches, harness, & c. of the kind used on their line, but they are bound to provide such as will best secure the safety of the passengers.
6. If the coach is upset in consequence of having too much baggage on the top, the proprietors are liable for any injury sustained by a passenger by such upsetting of the coach.
7. In actions by passengers against carriers, for injuries sustained, the judgment of the jury as to the amount of the damages, must govern, unless the damages allowed are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or misled by some mistaken view of the merits of the case.
This was an action on the case in the Circuit court of Shenandoah county by John Reigle against William Farish & Co. stage owners, to recover damages for an injury sustained by the plaintiff by the upsetting of the defendants' stage. The plaintiff who lived in Pennsylvania, took a passage in the defendants' stage to go from Staunton to Winchester; and he proved that after leaving Woodstock, a short distance below that town, the stage was turned over and he was very much injured; his head was severely cut, and one of his legs was broken immediately above the ankle, the small bone having passed through the muscles of the leg and also through his boot and clothes. He was confined at a house near the place of the accident for six months, during which time he suffered very severely, and for a part of the time was occasionally delirious. At the time of the trial, which was a year after the occurrence, his leg was not entirely healed, and was shortened, the ankle joint was swollen and stiff, and he was obliged to use crutches; and the physician who attended him expressed the opinion that the joint would continue to be stiff, and he would be a cripple for life. He was also subjected to considerable expense; having paid his physician's bill of two hundred and eighty dollars, and to the man at whose house he was confined, one hundred and fifty-four dollars and twelve cents.
The defendants proved that the stage used on the occasion was a good one, and the gearing was good of its kind. The horses were also proved to be steady, and the driver a very good, prudent and careful driver, and a perfectly sober man: He was examined as a witness. He stated that he took charge of the stage at Red Banks, nine miles above Woodstock. That he then looked at the blocks in the brake, and was satisfied they were in their proper position; and they held well and worked well from thence to Woodstock. The passengers dined at Woodstock; and he there looked at the blocks again to see if they were in proper condition, but he did not at either place strike them with his hatchet, which it is the general habit to carry along with them for the purpose of fixing the blocks when they require it; nor did he take hold of them. A short distance from Woodstock the road descends for some distance. When he went to use the brake at the hill, he found that the blocks were out. It appears from the evidence that the running of the stage on the horses frightened them, and they commenced to run; and for some part of the way over which they ran, and at the place where the stage was upset, there was a precipice on the right side of the road, and a hill on the left. The driver described his efforts to stop the horses, in which he failed. He said that he then tried to keep the middle of the road, hoping to be able to pull up on reaching a hill before him; but that the hind wheels of the coach began to slip, and were nearly over the precipice; and whilst he was endeavoring to avoid it, the coach was upset. He stated further that the stage, in going down the hill and around the turns, rocked very much from side to side, and just before turning over on the left, had been strongly tilted to the right, and falling back, tilted the other way, and seemed to him to have been for some distance on the left wheels before it went entirely over. He stated further that he had no occasion to use the brake after he left Woodstock until he commenced descending the hill, and made no experiments to ascertain if the blocks were still in. The first time he attempted to use the blocks, he found they were both out. This was about half a mile or a little more from the tavern in Woodstock.
The witness had no recollection as to the amount of the baggage on the top of the stage, or the number or size of the trunks. He found it all on and under the canvas when he took charge of the coach, and had no occasion to examine or handle it. It appeared that there were nine passengers inside the coach; the plaintiff was sitting with the driver, and there was a negro man on top. At the place where the coach was upset the road was smooth, though it was descending.
The plaintiff proved that there was no breeching on the horses; and one witness introduced by him, who was from Maryland or Pennsylvania, stated that he had been from a boy engaged in staging, and had quit the business about ten years before the trial; that he considered it unsafe to rely upon the brake alone without breeching on the horses: That breeching was used on the National road. Several witnesses were introduced by the defendants, who stated that they had been engaged in the business of staging for from eighteen to thirty years, some of them in Virginia and two in Virginia, North and South Carolina and Georgia; that breeching was of no advantage where the brake was used, and that since the introduction of brakes breeching had been abandoned. One of them stated that economy was not the object in dispensing with breeching; that they had sometimes received harness from the manufacturer at the north with breeching, and had taken it off and hung it up as surplus harness. This witness further stated that the blocks would bounce out in very dry weather.
After the evidence had been introduced, the plaintiff moved the court to instruct the jury:
1. That passenger carriers are liable for injuries resulting even from the slightest negligence on the part of the coachman or proprietor of the stage, and that they are bound to use the utmost care and diligence of cautious persons to prevent injury to passengers.
2. That if the jury believe from the evidence that the plaintiff was injured by the overturning of the coach, the prima facie presumption is, that it occurred by the negligence of the coachman, and the burden of proof is on the proprietors of the coach to establish that there was no negligence whatsoever; and that although this prima facie presumption may be repelled by defendants proving that the coach was reasonably strong, with suitable harness, trappings and equipments of sufficient strength, and properly made, and that the driver was careful, of reasonable skill and good habits, with steady horses, not likely to endanger the safety of passengers; yet, if the jury believe from all the evidence that the running off of the horses caused the overturning of the coach, and that such running off of the horses might have been arrested if the utmost care and diligence of very cautious persons had been exercised, that then the defendants are liable in damages to the plaintiff.
3. If the jury believe that the plaintiff was injured by the upsetting of the stage, and that the upsetting was caused by the horses running off; that the horses ran off, not because they were accidentally frightened, but because the blocks were out of the brake, causing the stage to run upon them: And if the jury further believe that such running off of the horses might have been prevented if the horses had been properly harnessed, or if the utmost care and diligence of a cautious person had been used to secure the blocks in the brake, that then the defendants are liable in damages.
4. If the jury believe that the coach was upset in consequence of having too much baggage on the top of the coach, that the defendants are liable for the injury sustained by the plaintiff because of such upsetting.
The court gave the 1st, 2nd and 4th instructions without alteration, and also gave the 3rd instruction, accompanied by the remark to the jury that in speaking of the horses being " properly harnessed," the court must not be understood to express any opinion whether the horses should have breeching or not, for that upon that subject he would express no opinion, leaving it entirely to the jury as a question proper for their decision.
The court also gave to the jury the two following instructions, asked for by the defendants:
1. In the absence of any express or special contract, the proprietors of stage coaches for the transportation of passengers are not bound to guarantee as to their coaches, harness and fixtures, more than that they shall be sound and complete of the kind used upon their line, and offered to the patronage of travelers. And they cannot be charged with damages resulting, without negligence, from the nonadoption of another kind or style of conveyance, harness or fixtures.
2. In ascertaining whether the injury in this case resulted from negligence or want of due precaution upon the part of the driver, the jury are bound to consider his conduct according to the rules which prevail in like cases among the most prudent, discreet and skillful drivers; and if they are satisfied that he used every precaution which experience has established as sufficient under the circumstances, they will attach no responsibility to the defendants because of an unforeseen and improbable accident.
To the giving of all and each of the said instructions asked for by the plaintiff, and to the instruction contained in the remark of the court above stated, the defendants, by counsel, excepted.
There was a verdict and judgment for the plaintiff for nine thousand dollars; and a motion for a new trial by the defendants on the grounds that the verdict was contrary to the evidence, and that the damages were excessive; which was overruled by the court; and the defendants again excepted: But the exception, instead of stating the facts proved, gave the evidence of the different witnesses. Upon application to this court by the defendants a supersedeas to the judgment was awarded.
Michie and Baldwin, for the appellant, insisted:
1. That the ground on which a carrier of passengers was held responsible for injuries sustained by them, is negligence. And they referred to Aston v. Heaven, 2 Esp. R. 533; Christie v. Griggs, 2 Camp. R. 79; Jones v. Boyce, 2 Eng. C. L. R. 482; Johnson v. Tollett, 3 Eng. C. L. R. 233; Crofts v. Waterhouse, 11 Eng. C. L. R. 119; Bremner v. Williams, Id. 437; Harris v. Costar, Id. 505; Curtis v. Drinkwater, 22 Id. 51; Sharp v. Gray, 23 Id. 331; Ware v. Gay, 11 Pick. 106; Camden & Amboy R. R. Co. v. Burke, 13 Wend. R. 611; Boyce v. Anderson, 2 Peters' R. 150.
2. That the principle applicable to carriers of passengers is that applicable to bailees for hire; and therefore they are responsible for only ordinary neglect. And they referred to the cases before cited, especially Boyce v. Anderson, 2 Peters' R. 150. This was a case of a carrier of slaves, and they said the Supreme court held that the responsibility of the carrier should be measured by the law which is applicable to passengers rather than that which is applicable to the carriage of common goods; that the carrier was answerable for injury sustained in consequence of his negligence or want of skill, but no further. And that the court recognized the rule laid down in Jones on Bailments as applicable to bailees for hire: That they are responsible for no more than ordinary neglect.
3. That ordinary neglect is the want of that diligence which the generality of mankind use in their own concerns. Angell on Carr. p. 47, § 45, note 3; p. 49, § 47. That this being the criterion by which the conduct of the carriers and their agents was to be measured, it was clear the first and second instructions given upon the motion of the plaintiff were erroneous. And they insisted that the fourth instruction had no reference to any evidence in the cause, and was therefore erroneous.
4. That the third instruction given on the motion of the plaintiff was directly in conflict with the first instruction given on the motion of the defendant. They insisted that the latter was correct; that all that could be required of the carrier, even upon the harshest principles that had been applied to them, is that their coaches, harness and fixtures shall be sound and complete of the kind used upon their line, and offered to the patronage of travelers.
The counsel took up the question upon principle, and insisted that as it was an open question in this state, sound principle and sound policy forbade the adoption of the very harsh rule which had been acted on in some of the cases elsewhere; a rule which seemed to look upon carriers of passengers as criminals to be punished, not as useful citizens to be encouraged and protected.
G. N. Johnson, for the appellee:
1. Proprietors of stage coaches are liable for the misconduct or neglect of their drivers, and for defects of their coaches, harness and other equipments. Angell on Carr. § 534, 540; Story on Bailments, § 592, 593, 596; and almost all the cases cited under the other heads.
2. Carriers of passengers for hire are liable for the smallest negligence, and bound for the utmost diligence in regard to everything connected with the safety of the passengers. Angell on Carr. § 540; Story on Bailments, § 598, 601, 602; Aston v. Heaven, 2 Esp. N. P. R. 533; Christie v. Griggs, 2 Camp. R. 79; Jackson v. Tollett, 3 Eng. C. L. R. 233; Crofts v. Waterhouse, 11 Eng. C. L. R. 119; Sharp v. Grey, 23 Eng. C. L. R. 331; Stokes v. Saltonstall, 13 Peters' R. 181; Hall v. Connecticut River Steamboat Co. 13 Conn. R. 319; Derwort v. Loomer, 21 Conn. R. 245; Ingalls v. Bills, 9 Metc. R. 1; Peck & wife v. Neil, 3 McLean's R. 22; a case in Queen's Bench, Montreal, stated in note to Angell on Carr. p. 520, § 541.
And in connection with the above cited cases of Christie v. Griggs and Sharp v. Grey, which relate chiefly to the land-worthiness of the coach and its equipments, see Israel v. Clark, 4 Esp. R. 259, and Bremner v. Williams, 11 Eng. C. L. R. 437.
3. It is the duty of such carriers and their agents, especially the driver, to make frequent, careful and thorough inspections to ascertain that all is right. Bremner v. Williams, 11 Eng. C. L. R. 437; Angell on Carr. § 535; Christie v. Griggs, 2 Camp. R. 79; Sharp v. Grey, 23 Eng. C. L. R. 331; Ware v. Gay, 11 Pick. R. 106; Ingalls v. Bills, 9 Metc. R. 1.
4. It is the duty of drivers to warn passengers when there is danger. Story on Bail. 377, § 598; Dudley v. Smith, 1 Camp. R. 167; Stokes v. Saltonstall, 13 Peters' R. 181; Derwort v. Loomer, 21 Conn. R. 245.
5. If the coach is overloaded with passengers or baggage, & c. and that may have caused the injury to the plaintiff, the defendant is liable. Angell on Carr. § 537; Story on Bail. § 594; Aston v. Heaven, 2 Esp. R. 533; Israel v. Clark, 4 Esp. R. 259; Curtis v. Drinkwater, 22 Eng. C. L. R. 51.
6. The breaking down or overturning of the coach is prima facie evidence of negligence. Christie v. Griggs, 2 Camp. R. 79; Ware v. Gay, 11 Pick. R. 106; Stokes v. Saltonstall, 13 Peters' R. 181; Carpue v. London & Brighton Railway Co. 48 Eng. C. L. R. 747.
7. If any neglect of duty on the part of the driver caused the accident, it is no defense that the plaintiff had not done all he might have done to protect himself from danger. And whether the plaintiff's neglect or the neglect of the driver caused the accident, is a question of fact for the jury. Jones v. Boyce, 2 Eng. C. L. R. 482; Curtis v. Drinkwater, 22 Eng. C. L. R. 51; Stokes v. Saltonstall, 13 Peters' R. 181; Ingalls v. Bills, 1 Met. R. 1; Beers v. Housatonuc R. R. Co. 19 Conn. R. 566.
8. Whether the injury is to be attributed to the negligence of the carrier or not, is always a question of fact for the jury; which is left to their judgment, subject to such instructions as the court may give upon the law. See all the cases cited for the other propositions; to which may be added Harris v. Costar, 11 Eng. C. L. R. 505.
9. The court of appeals will not judge, upon a question of new trial, either of the credibility or weight of the evidence. Bills of exception, in such cases, must state the facts proved, not the evidence. If, however, it does state the evidence, the court of appeals will disregard all the evidence which makes for the exceptant; and if, by so doing, the court can ascertain the facts proved by the other evidence, and can find no evidence to justify the verdict, then, and then only, will it be set aside. Grayson's Case, 6 Gratt. 712; Hill's Case, 2 Ib. 594; Bennett v. Hardaway, 6 Munf. 125; Ewing v. Ewing, 2 Leigh 337; Green v. Ashby, 6 Leigh 135; Pasley v. English, 5 Gratt. 141.
10. Where there is no certain criterion of damages, the amount to be given rests exclusively with the jury. And this is especially true in actions for personal injuries. In such cases the court will never grant a new trial on the ground that the damages are excessive, unless the court can manifestly see that the jury have been outrageous in giving such damages as greatly exceed the injury; such as to convince the court that the jury must have been influenced by passion, partiality, prejudice or corruption, or have been mistaken in the law of the case. Wilford v. Berkeley, 1 Burr. R. 609; Coffin v. Coffin, 4 Mass. 29; Worster v. Proprietors of Canal Bridge, 16 Pick. R. 541; Payne v. Brittenham, 1 A. K. Marsh. R. 440, 591; Harvey v. Huggins, 2 Bailey's So. Ca. R. 252, 268; Park v. Hopkins, Ibid 408; Sedgwick on Damages, chap. 13, 1st edi. p. 369; 2d edi. p. 355. But the court uses its power to set aside verdicts in such cases sparingly and with reluctance; and never except in a very clear case. Gilbert v. Burtenshaw, 1 Cowp. R. 230; Sedgwick on Damages, 2d edi. 599 to 603, and cases cited there.
DANIEL, J.
In the ninth article of Judge Story's work on Bailment, is to be found the most concise and lucid exposition of the rights, duties and obligations of carriers of passengers, that I have met with. It is there stated, that carriers of passengers merely for hire, are subject to the same responsibility as carriers of goods for hire, at the common law, so far as respects the baggage of the passengers: But as to the persons of the passengers, a different rule prevails. Attempts have been made to extend their responsibility as to the persons of passengers, to all losses and injuries, except those arising from the act of God or from the public enemies. But the support of this doctrine has been uniformly resisted by the courts, although a strict responsibility as to the carriage of the persons of passengers is imposed upon such carriers. Section 590. In section 592, the author proceeds to state as the result of the decided cases, that carriers of persons by stage coaches are bound to provide coaches reasonably strong and sufficient for the journey, with suitable harness, trappings and equipments; and to make a proper examination thereof previous to each journey. In other terms, that they are bound to provide road-worthy vehicles suitable for the safe transportation of passengers: And if they fail in any of these particulars, and any damage or injury occur to the passengers, they will be responsible to the full extent thereof. Hence (he says) it has been held that if there is any defect in the original construction of the stage coach, as for example in an axletree, although the defect be out of sight, and not discoverable upon a mere ordinary examination, yet, if the defect might be discovered by a more minute examination, and any damage is occasioned to a passenger thereby, the coach proprietors are answerable therefor.
In the next place, they are bound to provide careful drivers, of reasonable skill and good habits, for the journey; and to employ horses which are steady and not vicious, or likely to endanger the safety of their passengers. Section 593.
In the next place, they are bound not to overload the coach either with passengers or with luggage; and they are to take care that the weight is suitably adjusted, so that the coach is not top-heavy and made liable to overset. Section 594.
They are bound to make use of all the ordinary precautions for the safety of passengers on the road. The coachman must, in all cases, exercise a sound and reasonable discretion, in traveling on the road, to avoid dangers and difficulties. If he is guilty of rashness, negligence or misconduct, or if he shows any want of skill, the proprietors will be responsible for any injury resulting from his acts. Section 598.
The liabilities of such carriers naturally flow from their duties. As they are not, like common carriers of goods, insurers against all injuries, except by the act of God, or by public enemies, the enquiry is naturally presented, What is the nature and extent of their responsibility? It is certain that their undertaking is not an undertaking absolutely to convey safely. But although they do not warrant the safety of the passengers, at all events; yet their undertaking and liability go to the extent, that they and their agents possess competent skill, and that they will use all due care and diligence in the performance of their duty. But in what manner (the author asks) are we to measure this due care and diligence? Is it ordinary care and diligence, which will make them liable only for ordinary neglect? Or is it extraordinary care and diligence, which will render them liable for slight neglect? As they undertake for the carriage of human beings, whose lives and limbs and health are of great importance as well to the public as to themselves, the ordinary principle in criminal cases, where persons are made liable for personal wrongs and injuries arising from slight neglect, would seem (he says) to furnish the true analogy and rule. It has been accordingly held that passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons, and of course they are responsible for any even the slightest neglect. Section 601.
In section 601 a, the further proposition is stated, that when injury or damage happens to the passengers by the breaking down or overturning of the coach, or by any other accident occurring on the ground, the presumption prima facie is, that it occurred by the negligence of the coachman; and the onus probandi is on the proprietors of the coach to establish that there has been no negligence whatsoever; and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent. For the law will, in tenderness to human life and limbs, hold the proprietors liable for the slightest negligence, and will compel them to repel, by satisfactory proofs, every imputation thereof.
This summary of the law seems to me to comprehend and to affirm all the propositions involved in the instructions given at the instance of the defendant in error.
The plaintiff in error, in his petition, denies the propriety of each of these instructions, but neither in the notes of his counsel accompanying the petition, nor in the argument here, has any serious effort been made to show by argument or authority, that the instructions have failed to propound the law correctly, except in two particulars. In order to determine whether the instructions have erred in either of these particulars, a more special notice of the law, in relation to them, would seem to be rendered proper.
In the first place it is urged, that carriers of persons are responsible for no more than ordinary neglect ; and that as the instructions lay down a rule which imputes liability for a less degree of negligence than that which constitutes ordinary neglect, they have in such particular stated the law too strongly against the plaintiff in error. In support of this objection the authority mainly relied upon is the case of Boyce v. Anderson, 2 Peters' R. 150. That case does, I think, decide the law as the counsel for the plaintiff states it; but in the case of Stokes v. Saltonstall, 13 Peters' R. 181, it has been substantially, if not in terms, overruled.
Justice Barbour, in Stokes v. Saltonstall, in reviewing the decision in Boyce v. Anderson, says, " that was an action brought by the owner of slaves against the proprietors of a steamboat on the Mississippi, to recover damages for the loss of the slaves, alleged to have been caused by the negligence or mismanagement of the captain and commandant of the boat. The court distinguished slaves, being human beings, from goods; and held that the doctrine as to the liability of common carriers for mere goods, did not apply to them; but that in respect to them, the carrier was responsible only for ordinary neglect. The court seem to have considered that case as being a sort of intermediate one between goods and passengers. We think, therefore, that anything said in that case in the reasoning of the court, must be confined in its application to that case; and does not affect the principle which we have before laid down." And in a preceding portion of the opinion, the general principle is asserted, that though a carrier of passengers " does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them goes to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that as far as human care and foresight can go he will transport them safely; " and the case of Aston v. Heaven, 2 Esp. R. 533, is cited with approbation, in which it is held that whilst the action stands on the ground of negligence, yet the responsibility attaches to the smallest negligence.
And in Jackson v. Tollett, 3 Eng. C. L. R. 233, Lord Ellenborough states the law to be, that " every person who contracts for the conveyance of others, is bound to use the utmost care and skill; and if through any erroneous judgment on his part any mischief is occasioned, he must answer for the consequences."
The case of Crofts v. Waterhouse, 11 Eng. C. L. R. 119, is substantially to the same effect. So in Hall v. Conn. River Steamboat Co. 13 Conn. R. 319, the court held that whilst the rule applicable to carriers of goods had not been applied in its fullest extent to carriers of persons, because they have not the same absolute control over passengers that they have over goods entrusted to their care; yet that both policy and the authority of adjudged cases require great care and skillful management in the transportation of passengers by common carriers. They said it was but right it should be so; that those, upon whose skill and careful management, not unfrequently, depend the lives and safety of others, should feel themselves responsible for any want of care or faithfulness, and that they therefore fully approved the instruction given in the court below, that the defendants were bound to employ the highest degree of care that a reasonable man would use.
In Stockton v. Frey, 4 Gill. 406, and in Maury v. Talmadge, 2 McLean's R. 157, and in Derwort v. Loomer, 21 Conn. R. 245, the same doctrine is maintained. And in the case of the Philadelphia and Reading R. R. Co. v. Derby, 14 How. S. C. R. 486, Justice Grier in delivering the opinion of the Supreme court uses the following strong and emphatic language: " When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence in such case may well deserve the epithet of " gross. " And in Angell on the Law of Carriers, it is stated as the result of the decided cases, that " the degree of responsibility to which carriers of persons are subject, is not ordinary care, which will make them liable only for ordinary neglect, but extraordinary care, which renders them liable for slight neglect. It is the danger to the public which may proceed even from slight faults, unskillfulness or negligence of passenger carriers or their servants, and the helpless state in which passengers, by their conveyances, are, which have induced the courts, both in England and in America, to bind the rule of the contract locatio operis, much tighter than could be insisted for on the ordinary principle of that contract. The most inconsiderable departure, therefore, from the important duties imposed upon passenger carriers, will render them liable for the consequences." Indeed, I have seen no case except that of Boyce v. Anderson, which sanctions the idea that the carrier is not responsible for slight neglect; and I feel no hesitation in approving the instructions of the judge in the particular under consideration.
The second error supposed to be committed by the judge below, in expounding the law to the jury, is to be found in the explanation accompanying the third instruction asked by the defendant in error. In the third instruction, it will have been seen, the judge instructed the jury that if they believed that the plaintiff was injured by the upsetting of the stage, and that the upsetting was caused by the horses running off; that the horses ran off, not because they were accidentally frightened, but because the blocks were out of the brake, causing the stage to run upon them; and if the jury further believed that such running off of the horses might have been prevented, if the horses had been properly harnessed, or if the utmost care and diligence of a cautious person had been used, to secure the blocks in the brake; that the defendants were liable in damages. And the court accompanied this instruction by the remark to the jury, that in speaking of the horses being " properly harnessed," the court was not to be understood as expressing any opinion whether the horses should have had breeching or not; for upon that subject he would express no opinion, leaving it entirely to the jury, as a question proper for their decision.
And the court afterwards, at the instance of the plaintiff in error, instructed the jury, that in the absence of any express or special contract, the proprietors of stage coaches for the transportation of passengers, are not bound to guarantee as to their coaches, harness and fixtures, more than that they shall be sound and complete of the kind used upon their line, and offered to the patronage of travelers. And that they cannot be charged with damages resulting, without negligence, from the nonadoption of another kind or style of conveyance, harness or fixtures. The defendant in error having offered the testimony of witnesses to show, that, since the introduction of the brake, it was not safe to trust to that as a means of checking the velocity of stages in descending hills, with harness that had no breeching; and the plaintiff having offered evidence to show that when the brake was used the breeching to the harness was of no value as a means of safety; and that on his line, and on many other lines, the breeching had been abandoned as useless since the improvement of the brake had been introduced, it was, I think, evidently the purpose of the court, in the explanation given of the third instruction, to guard the jury against the impression, that in saying if the jury believed that the running off of the horses might have been prevented if the horses had been properly harnessed, & c., the plaintiffs in error were liable, the court intended to express the opinion that the failure to use breeching to the harness did of itself constitute neglect: whilst on the other hand the plaintiff in error was desirous of getting rid of the testimony offered by his adversary on that head by the instruction which he asked; the effect of which was to negative the conclusion in law, of any neglect in failing to use the breeching, though the jury should be of opinion, from the evidence that harness with breeching would be safer than harness without, provided they should also believe that the harness used was sound and complete, of the kind used, upon the line of the plaintiffs in error.
It is insisted by the counsel of the plaintiff in error, that there is an obvious conflict between the third instruction of the defendant in error as explained by the court, and the first instruction given at the instance of the plaintiff in error; that the latter properly confined the jury to the enquiry whether the harness was sound and complete of the kind used on the line, whilst the former left the jury at liberty to impute neglect to the plaintiff in error in failing to use harness of a different kind.
The discrepancy between the two instructions complained of does, I think, exist; and it becomes necessary to enquire which of the two instructions is right. The question as to the liability of the carrier is presented in a peculiar and novel aspect; but it will on examination, I think, be found to fall within the influence of well settled and familiar principles.
I have already cited the authority of Judge Story to show that the carrier is bound to provide coaches reasonably strong and sufficient for the journey, with suitable harness, trappings and equipments. And there are numerous cases stating the law the same way; and among others, Christie v. Griggs, 2 Camp. R. 79; Bremner v. Williams, 11 Eng. C. L. R. 437: Crofts v. Waterhouse, Ib. 119; Sharp v. Grey, 23 Eng. C. L. R. 331; Stockton v. Frey, 4 Gill's R. 406.
In the case of Ingalls v. Bills, 9 Metc. R. 1, the correctness of some of these decisions, so far as they go to declare the stage owner to be a warrantor of the soundness and sufficiency of the coach in all respects, is denied. And it was there held that when the accident arises from a hidden and internal defect which a careful and thorough examination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury; but the misfortune must be borne by the sufferer. Yet the court at the same time said, that the carriers of passengers are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harness, horses and coachmen, in order to prevent those injuries which human care and foresight can guard against; and that if an accident happens from a defect in the coach, which might have been discovered and remedied upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger happening by reason of such accident.
If this case is to be regarded as establishing that a latent defect in the coach, which a careful examination would not disclose, forms an exception to the general undertaking of the carrier to furnish a sufficient coach, (about which I do not deem it necessary to express an opinion,) it is clear, I think, that this exception has no bearing on the case, and that in expounding the law, there was nothing making it incumbent on the judge to state it. And the true point of enquiry out of which the conflict of instructions arose, was whether an alleged defect in the harness used by the plaintiff in error, (which if it existed, was a patent defect consisting in the absence of a certain portion of the harness, with or without which it could be used,) was a proper matter of enquiry for the jury; and if so, whether on their being of opinion that there was such defect, they could make it the ground for finding the plaintiff in error guilty of neglect.
If the proposition contended for by the plaintiff in error is to be received as the law, viz: that he undertakes only that his coaches, harness and fixtures shall be sound and complete of the kind used on his line, it follows that he may be excused from liability in the face of the amplest proof to show that owing to their style or kind, they were positively dangerous. In no case that I have seen can any warrant be found for such a rule. Could it be said, in the language of the case of Ingalls v. Bills, that a carrier uses the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harness, & c. if it was shown that from want of care, skill or judgment, he had selected for use on his line, a style of harness shown to be less safe than another which had long been in use, and which was known by him to be in use? Such a rule seems to me to alter the relative rights and duties of the carrier and passenger. The passenger, instead of relying on the carrier to use the proper care and judgment in the selection of the coach, harness, & c. with a view to its safety, would have to use the utmost diligence, whenever about to take passage, in enquiring into the style and fashion of the coach used on the line, and then to determine for himself whether or not a stage constructed after such style or fashion, would or would not, probably, be safe. The law, I think, imposes no such duty on the passenger. He has, I think, a right to expect that the carrier who has undertaken to use the greatest care and skill in providing for his safe passage, will exercise the proper caution and care in seeing that his coach is not only sound and complete of its kind, but is also of a safe kind. The traveling public have a right to expect that he who undertakes to fill such a responsible post, will bring to the discharge of its duties all the knowledge that appertains to the calling; that he will observe and compare the different kinds of coaches in use, and direct his attention to the principles on which they are constructed, in order to use a well informed experience and an enlightened judgment in the selection of such as will be most likely to insure the safety of those who are to be carried in them. The carrier cannot be said to have fulfilled the requirements of the law so long as there exists any known want of safety in his coaches, harness, & c. whether arising from defectiveness of material or workmanship, or faultiness of the principle on which they are constructed, for which there is a known remedy, used wisely as a means of safety, by others, of skill and sound judgment, engaged in the same business. A danger arising from any such defect cannot be properly regarded as one of those risks or dangers necessarily incident to the mode of travel, which it is presumed every passenger has made up his mind to encounter.
In the case before us there was not only testimony tending to show that there would be a greater degree of safety in using harness with breeching than without, but that the horses could be readily trained to the use of such harness in holding back. In this state of things, seeing that the slight change in the harness, by the addition of breeching, would be attended by little or no expense and with slight trouble or inconvenience in training the horses to the use of it, it seems to me that it was a fair subject for the jury to consider (in case they believed what the evidence of the defendant in error tended to prove,) whether the failure of the plaintiff in error to make the change, as a measure of safety, was not evidence of a want of proper care and vigilance on his part, in providing for the safety of those traveling in his coaches.
The seeming conflict in the instructions was brought about by the plaintiff in error, in asking and obtaining from the court an instruction to which, in the view I have taken, he was not entitled; and there is nothing, therefore, in that particular, of which he has any right to complain.
Upon a view of all the instructions given by the court, as a whole, I have been unable to discover that they assert any principle which bears too harshly on the plaintiff in error, or which was calculated to mislead the jury, to his prejudice. And at a period when the facilities for travel are so rapidly multiplying, and the amount of travel is so constantly on the increase, I feel no disposition to relax any of the rules which hold the carrier to a strict accountability. When so many causes are conspiring to engender and foster a love for the excitement of rapid traveling, which is daily betraying the managers and conductors of every species of conveyance into a fatal disregard of all the precautions essential to the preservation of the limbs and lives of those committed to their charge, I do not think that the law should slacken the reins by which to some extent at least, it holds them in check. On the contrary, policy, humanity and reason all seem to require from the courts a stern adherence to the principles which tend to insure the greatest care on the part of the carrier, and the least danger to the passenger.
The fourth instruction given at the instance of the defendant in error is objected to, not because it states the law incorrectly, but because, as is said, there was no evidence tending to prove that the coach was upset in consequence of having too much baggage on the top. If there was no evidence on that head, the plaintiff in error could not have been injured by a correct statement of the law, that the carrier would be liable for an injury arising from an overturning of the coach occasioned by its being too heavily loaded on the top. On the other hand, if there was any competent and relevant testimony, however slight, tending to show that the upsetting was due to that cause, the defendant in error was entitled to have the law in that particular hypothetically expounded to the jury. There was, I think, evidence tending to the proof of such fact. Discarding the statement of the witness Cralle, that the driver Carper said to him that he thought there was too much baggage on the top, and that he thought the upsetting was in part occasioned thereby, as illegal, except for the purpose of impeaching Carper, I think there was circumstantial evidence, though slight, tending to the conclusion that the coach was top-heavy, and that the upsetting may have been partly due to that cause. It is in proof that there were eleven passengers, nine inside and two on the outside. How and where their baggage was disposed, does not appear, with the exception that one of the passengers proved that his trunk was in the boot behind.
Carper says that he has no recollection as to the amount of baggage on the top of the stage, or the number or size of the trunks; that " he found it all on, and under the canvas when he took charge; and had no occasion to handle or examine it." And he further states " that in coming down the hill and around the turns, the stage rocked very much from side to side, and just before turning over on the left hand, had strongly tilted to the right, and in falling back, tilted the other way, and seemed to him to be some distance on the left wheels before it went clear over."
And it is further shown that at the point where the coach overturned, the road was level across, though slightly descending. The rocking of the coach from side to side, and the manner of its turning over, were circumstances tending to the inference that it was topheavy. I think the plaintiff in error had a right to the instructions.
The last cause of error assigned is the refusal of the court to set aside the verdict and grant a new trial. We have no certificate of the facts; but only a certificate of the evidence. When such is the case, this court has uniformly refused to take cognizance of the exception, except when it appears that after rejecting all the parol evidence in favor of the party excepting, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. Pasley v. English, 5 Gratt. 141; Rohr v. Davis, 9 Leigh 30. Applying this rule there is nothing to rebut or weaken the prima facie case made by proof of the upsetting of the stage, and the consequent injury to the defendant in error. So far from it, the evidence in favor of the verdict shows most clearly a case of culpable negligence on the part of the driver. Without adverting to the other evidence in support of such a conclusion, the driver's own account of his conduct proves it. He showed a want of ordinary care in failing to make a more minute examination of the blocks at Red Banks where he first took charge of the coach. There was the same want of care in their examination at Woodstock, when the most ample time and opportunity were afforded for a thorough examination. Having failed to make such examination at Woodstock, he was guilty of the grossest negligence in failing to assure himself that the blocks were in before he commenced descending the hill where the disaster occurred. In the absence of breeching or any other substitute by which the horses could hold back and prevent the stage from running on them, he knew that his main if not sole reliance for a safe descent of the hill was in the brake, which, he also knew, would be of no avail, if the blocks were not in place; yet he most negligently and recklessly commenced the descent of the hill without having tested the presence or absence of the blocks, which might have been done by simply applying his foot to the brake. Whilst descending the hill he for the first time discovered that the blocks were out. The brake of course was useless. As might have been expected, the stage soon began to run on the horses, and they, in the absence of any other cause of fright, ran off and upset the stage. The disaster is thus most clearly traced, by the driver's own account of his conduct, to his unpardonable failure to provide the means, within his power, by which to prevent it.
It is, however, in the last place insisted that the damages are excessive, and that this appears from the evidence of the defendant in error, and that the court ought to have granted a new trial for that cause.
There is no rule of law fixing the measure of damages in such a case; and it cannot be reached by any process of computation. In cases of the kind, the judgment of the jury must govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. 16 Pick. R. 547.
On the one hand, the damages seem to be heavy. On the other, the injuries, losses and sufferings which they are designed to compensate, are proved to be great.
The head of the defendant in error was severely cut, and one of his legs badly broken, the smaller bone protruding through his clothing and boot. One of his physicians thought, at first, that amputation would have to be resorted to. His agonies, physical and mental, must have been intense. For some time his mind was seriously affected. At the time of the trial, rather more than a year after the happening of the disaster, his leg had not entirely healed; the limb was shortened and the joint stiff. The use of crutches was still necessary, and the physicians expressed the opinion that he would be a cripple for life. He was necessarily confined for some six months in a house near the place of the disaster, detained from his business, and from his home, which was in another state. The presence of members of his family, some during the whole time, and others for a portion of it, was necessary, in order that his wants and comforts might be properly attended to; and the expenses which he encountered in the discharge of the bills for boarding and the attendance of his physicians, and other incidental charges, were necessarily large.
In view of such a state of facts, I cannot undertake to say that the damages are so plainly beyond a reasonable compensation, so manifestly exorbitant, as to require us to disturb the estimate and verdict of the jury.
I think the judgment ought to be affirmed.
The other judges concurred in the opinion of DANIEL, J.
JUDGMENT AFFIRMED.