It is contended, on the one hand, that ordinary care was all the law required of the defendant in this case. On the other it is claimed that the utmost care was necessary to free him from liability. Ordinary care is all that the law required in the case in judgment. What is ordinary care in some cases would be carelessness in others. The law regards the circumstances surrounding each case, and the nature of the animal or machinery under control. Greater care is required to be taken of a stallion than of a mare; so in the management of a steam-engine, greater care is necessary than in the use of a plow. Yet it is all ordinary care; such care as a prudent, careful man would take under like circumstances. The degree of care is always in proportion to the danger to be apprehended. The case at bar was properly sent to the jury, and the verdict is fully sustained by the evidence.
The judgment is affirmed, with costs.
DENVER ELECTRIC COMPANY v. SIMPSON
Supreme Court, Colorado, April Term, 1895.
Reported in 21 Colorado Reports, 371.
Action for damage caused to plaintiff, while passing along a public alley, by his coming in contact with one of defendants’ wires heavily charged with electricity, which had become detached from its overhead fastening, and was hanging down to within about two feet of the ground. At the trial there was some evidence tending to show that the position of the wire was due to the negligence of the defendants. Verdict for plaintiff, and judgment thereon. Defendant appealed; alleging as one ground the giving of certain instructions as to the care required by defendant. Those instructions are stated in the opinion.[[69]]
Campbell, J.... This court does not recognize any degrees of negligence, such as slight or gross, and logically it ought not to recognize any degrees in its antithesis, care.[[70]] The court instructed the jury in this case that the defendant was not an insurer of the safety of plaintiff, but that in constructing its line and maintaining the same in repair, it was held to the utmost degree of care and diligence; that in this respect it is bound to the highest degree of care, skill, and diligence in the construction and maintenance of its lines of wire and other appurtenances, and in carrying on its business, so as to make the same safe against accidents so far as such safety can, by the use of such care and diligence, be secured. If it observed such degree of care, it was not liable; if it failed therein, it was liable for injuries caused thereby.
We think the court was unfortunate in attempting to draw any distinctions in the degrees of care or negligence. It would have been safer and the better practice to instruct the jury,—which ought hereafter to be observed,—even in cases like the one before us, that the defendant was bound to exercise that reasonable care and caution which would be exercised by a reasonably prudent and cautious person under the same or similar circumstances. In addition to this, the jury should have been instructed that the care increases as the danger does, and that where the business in question is attended with great peril to the public, the care to be exercised by the person conducting the business is commensurate with the increased danger. But, in effect, this is what the court did. Under the facts of the case, the law required of the defendant conducting, as it did, a business so dangerous to the public, the highest degree of care which skill and foresight can attain consistent with the practical conduct of its business under the known methods and the present state of the particular art. This is the measure of the duty owed by a common carrier to a passenger for hire. Thompson’s Carriers of Passengers, p. 208, and cases cited. Not for the same reason, or because the doctrine rests upon the same principle, but with even greater force should this rule apply to a person or corporation engaged in the equally, if not more, dangerous business of distributing electricity throughout a city by means of wires strung over the public alleys and streets, in so far as concerned its duty to the travelling public.
In those courts where degrees of negligence are not countenanced, nevertheless, in cases where the duty of a common carrier of passengers is laid down, the jury are told that carriers are bound to the utmost degree of care which human foresight can attain. This is upon the theory that reasonable or ordinary care in a case of that kind is the highest care which human ingenuity can practically exercise, and that, as a matter of law, courts will hold every reasonably prudent and careful man to the exercise of the utmost care and diligence in protecting the public from the dangers necessarily incident to the carrying on of a hazardous business.
Where the facts of a case naturally lead equally intelligent persons honestly to entertain different views as to the degree of care resting upon a defendant, the court ought not to lay down a rule prescribing any particular or specific degree in that case. But where all minds concur—as they must in a case like the one we are now considering—in regarding the carrying on of a business as fraught with peril to the public inherent in the nature of the business itself, the court makes no mistake in defining the duty of those conducting it as the exercise of the utmost care. It was, therefore, not prejudicial error for the court to tell the jury in this case what the law requires of the defendant, viz., the highest degree of care in conducting its business.
Judgment affirmed.[[71]]