Negligence is defined, broadly and generally speaking, as the failure to employ reasonable care — the care which the law's reasonably prudent man should use under the circumstances of a particular case. That being so, it may well be asked whether it is ever practicable for one to use more care than one reasonably can; whether it is ever reasonable for one to use less; or whether, in sum, there can ever be more than one degree of care. (See Pollock on Torts [14th ed.], pp. 352-353; Green, High Care and Gross Negligence, 23 Ill. L. Rev. 4; cf. O'Brien v. New York Rys. Co., 185 App. Div. 867, passim.) And, indeed, it has been said that to grade care into degrees, to differentiate between various degrees of care, is "unscientific", "most difficult of application", and "perplexing alike to bench and bar."

The use of adjectives and reference to degrees of negligence and contributory negligence in general terms in the charge to a jury are apt to be misleading unless their attention is directed to the precise issue of fact between the parties. The question here involved has been recently considered by this court in the First Department, where the authorities are collated in the opinion of the court, written by Mr. Justice LAUGHLIN and concurred in with separate opinions by the presiding justice and Mr. Justice PAGE. ( O'Brien v. New York Railways Co., 185 App. Div. 867.) There was also error in the refusal of the learned trial justice to compel the plaintiff's medical expert to exhibit the notes made by him of his physical examination of plaintiff.

See, e.g., Pager v. Pennsylvania R. Co., 2 Cir., 1947, 165 F.2d 56. Several New York cases appear to limit the rule of utmost care to injuries arising from defects in the road bed, construction of cars, and the like, not applying it to the operation of these means of transportation. Stierle v. Union Ry. Co., 1898, 156 N.Y. 684, 50 N.E. 834; O'Brien v. New York R. Co., 1919, 185 App. Div. 867, 174 N.Y.S. 116; Gregory v. Elmira, W.L.C.R.R. Co., 1907, 190 N.Y. 363, 83 N.E. 32, 18 L.R.A., N.S., 160. Other New York cases do not so limit the rule of utmost or high care, but apply it to situations involving negligence in the use and operation of the means of transportation. Bowen v. New York Central R.R. Co., 1859, 18 N.Y. 408; Keegan v. Third Ave. R.R. Co., 1898, 34 App. Div. 297, 54 N YS. 391 affirmed, 1900, 165 N.Y. 662, 59 N.E. 1124.

" Since O'Brien v. New York Rys. Co. ( 185 App. Div. 867), the rule in the First Department has been that an operator of a vehicle of a common carrier of passengers is chargeable with the duty of exercising ordinary care commensurate with the existing circumstances. The rule of the O'Brien case has been followed in the Second Department ( Richardson v. Nassau Elec. R.R. Co., 190 App. Div. 529; Roach v. Yonkers R.R. Co., 242 App. Div. 195; Glick v. New York R.T. Corp., 259 App. Div. 104 4), and by the Fourth Department ( Kelly v. International Ry. Co., 214 App. Div. 652; Sanucci v. New York Cent. R.R. Co., 223 App. Div. 517; Nelson v. Haege, 232 App. Div. 56).

Memorandum: We feel that under the circumstances of this case, the court erred in charging the jury that the defendant was called upon to "exercise the highest degree of care in the operation of the bus". (See Glick v. New York R.T. Corp., 259 App. Div. 1044; Taddeo v. Tilton, 248 App. Div. 290; O'Brien v. New York Rys. Corp., 185 App. Div. 867; Kelly v. International Ry. Co., 214 App. Div. 652.) The court also erred in charging the jury, without qualification, that in determining the pecuniary loss sustained by reason of the death of plaintiff's intestate, it might take into consideration "the earnings of the decedent per annum, multiplied by the number of years of life, and your verdict will be the pecuniary loss to the widow."

" As a general rule when the negligence of a common carrier is predicated on the conduct of its operator, the rule of ordinary care should be applied. ( Stierle v. Union Ry. Co., 156 N.Y. 70; Glick v. N.Y. Rapid Transit Corp., 259 App. Div. 1044; Brennan v. Brooklyn Queens Transit Corp., 258 App. Div. 105 5; Kelly v. Int'l. Ry. Co., 214 App. Div. 652; O'Brien v. N.Y. Railways Co., 185 App. Div. 867.) However, the degree of care is always commensurate with the danger to be avoided. ( Roach v. Yonkers R.R. Co., 242 App. Div. 195.

The degree of care to be exercised is commensurate with the danger to be avoided. If the jury found that the truck in collision had been in plain sight for some distance as the street car approached, they might well hold the motorman to a very high degree of care to avoid the impending collision. If, however, the way was apparently clear, and the truck suddenly entered upon the track without warning and within a few feet of the motorman, a different rule would apply. If an emergency was created by the sudden entrance of the truck on the track immediately in front of the car, the railroad company was not liable because the motorman failed to use a very high degree of care. ( O'Brien v. New York Railways Co., 185 App. Div. 866; Richardson v. Nassau Electric R.R. Co., 190 id. 529; Kelly v. International Railway Co., 214 id. 652; Geyer v. International Railway Co., 210 id. 574; affd., 240 N.Y. 626; Sanucci v. New York Central Railroad Co., 223 App. Div. 517. ) Not only, therefore, was the exception to the main charge well taken, but defendant railroad company was entitled to the charge, as requested, that if the jury found that the truck was turned onto the track when the street car was so close that a collision was inevitable in the exercise of reasonable care, defendant railroad company was entitled to a verdict. As to defendant Marotta, it was error to receive proof of his conviction of reckless driving as prima facie evidence of liability.

In handling its trains on this occasion, the defendant's employees, as to a passenger, were obligated to use care at least fully commensurate with the situation and all the circumstances presented. ( O'Brien v. New York Railways Co., 185 App. Div. 867; Kelly v. International R. Co., 214 id. 652.) These circumstances included: (1) The weather conditions; (2) the fact that the trainmen knew that these trains were to meet and pass at the Middleport station; (3) the physical situation known to the trainmen; (4) the fact that in one train were passengers who had intrusted their safety in train operations to the railroad employees.

As a matter of law the duty of both the motorman and the truck driver was to use the care of an ordinarily prudent person under the circumstances. This implies that under differing circumstances a corresponding different conduct is requisite. ( Stierle v. Union Railway Co., 156 N.Y. 70; O'Brien v. New York Railways Co., 185 App. Div. 867; Richardson v. Nassau Electric R.R. Co., 190 id. 529.) There was in this case no "grave danger" such as is referred to in the O'Brien case.

Held, that the charge made at the request of plaintiff's counsel "that the defendant is held to the highest degree of care in the operation of the elevators, consistent with their efficient use," constitutes reversible error. ( Griffen v. Manice, 166 N.Y. 188; O'Brien v. New York Railways Co., 185 App. Div. 867.) All concur.