LAKE ERIE & WESTERN R. CO. v. FORD
Supreme Court, Indiana, October 23, 1906.
Reported in 167 Indiana Reports, 205.
Gillett, J. Complaint by appellee to recover damages for loss of property by fire, by reason of the alleged negligence of appellant. There was a verdict and judgment in favor of appellee.[[72]]
Appellant complains of appellee’s instructions five and six, which were given by the court in the order indicated by their numbers. They are as follows: “(5) It is the duty of a railroad to use all reasonable precaution in running and operating its trains, and in providing its engines with proper spark-arresters, so as to prevent injury to the property of others by sparks or fire emitted or thrown therefrom. (6) If you believe from all of the evidence and circumstances in the case that at the time and prior to the destruction of the property of the plaintiff, as alleged in his complaint, there were a number of wooden buildings and structures standing on either side of the defendant’s track and in close proximity thereto, including the barn or stable of said Melissa McFall in the town of Hobbs, and at such time it was, and for some time prior thereto it had been, unusually dry, thereby rendering such wood buildings and structures, including the barn or stable of said Melissa McFall, and also the property of the plaintiff herein, unusually dry, inflammable, and easily set on fire by sparks and coals of fire emitted from defendant’s engines in passing through said town, and that there was also at the time, and for several hours prior thereto had been, a strong wind blowing continuously across the defendant’s track, in the direction of the barn or stable of said Melissa McFall, and the wooden buildings and structures near the defendant’s track, including the property of the plaintiff herein, which greatly and unusually increased the danger and risk of setting fire to such buildings by sparks and coals of fire emitted or thrown from its engine in passing through said town, over ordinary times and conditions, and all of which facts and conditions the defendant knew at the time, the defendant, under such circumstances, would be required to use a greater degree of care in operating and running its engines through said town to prevent injury to such buildings or property by sparks or coals of fire emitted or thrown from its engine, than it would at ordinary times and under ordinary conditions.”
Assuming, without deciding, that it was not error for the court, in its fifth instruction, to use the term “reasonable precaution,” instead of the preferable one, “ordinary care,”[[73]] and assuming further, since the care that the company was required to exercise was, so far as the element of law was concerned, to be measured by a fixed standard, which was to be fully complied with (Wharton, Negligence [2d ed.], § 46), that it was proper to use the expression “all reasonable precaution,” the question arises whether it is not likely that the jury was misled by the charge in the next instruction that in the circumstances therein hypothetically stated “a greater degree of care” was required than in ordinary conditions. The sixth instruction would have been proper, had the court charged, after stating to the jury hypothetically the conditions which existed, leaving it to them to determine whether the danger was increased, that, in the event they so found, it was their duty, in determining whether reasonable or ordinary care had been exercised, to consider the increased danger of fire, yet we cannot say that this was the fair meaning of the words in which said instruction was couched.
There has been much discussion in the books concerning the correctness of the old doctrine as to degrees of negligence. New York Central R. Co. v. Lockwood, (1873) 17 Wall. 357, 21 L. Ed. 627; Steamboat New World v. King, (1853) 16 How. 469, 14 L. Ed. 1019; Ohio, etc., R. Co. v. Selby, (1874) 47 Ind. 471, 17 Am. Rep. 719; Pennsylvania Co. v. Sinclair, (1878) 62 Ind. 301, 30 Am. Rep. 185; Wharton, Negligence (2d ed.), § 44; 6 Albany L. J. 313; 2 Ames & Smith, Cases on Torts, 143; 21 Am. and Eng. Ency. Law (2d ed.), 459, and cases cited. While we apprehend that the adverse opinions which have been expressed concerning such doctrine were not intended to be understood as militating against the view that the legal standard of care is not the same in all relations, or to discountenance the practice of charging the jury in terms that indicate the extent of care required, as great, ordinary, or slight (1 Shearman & Redfield, Negligence [5th ed.], § 47), yet the point which we wish to enforce now is that in all cases negligence consists simply in a failure to measure up to the legal standard of care. It was said by Willes, J., in Grill v. General Iron Screw, etc., Co., (1866) L. R. 1 C. P. 600, 611: “Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use.”
Here we admittedly have a case in which it was the duty of the company to exercise ordinary care, but what does an instruction mean that informs the jury that in certain circumstances a greater degree of care is required, when it has for a background an instruction, which is applicable to all circumstances, that all reasonable precaution must be used? We think that in such a case the jury would understand that more than ordinary care was required, and it is not improbable that the effect of giving such an instruction, following an instruction like 5, would be to lead the jury to infer that the defendant’s duty was raised by the circumstances recited to a pitch of intensity that could not reasonably have been attained.
It was said by this court in Meredith v. Reed, (1866) 26 Ind. 334, 337: “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 plough. Yet it is all ordinary care.” The legal standard of care required in a particular relationship is always the same, although the amount of care thus required depends upon the particular circumstances. Cleveland, etc., R. Co. v. Terry, (1858) 8 Ohio St. 570; Weiser v. Broadway, etc., St. R. Co., (1895) 6 Ohio Dec. 215. As has been observed by a modern writer: “This standard may vary in fact, but not in law.” 2 Jaggard, Torts, p. 819. In an article in 3 [6] Albany, L. J. 314, it is said: “The ratio, proportion or correspondence of diligence to circumstances, of care to surroundings, is fixed and identical. And, in determining a question of diligence or negligence in either case [as between two cases previously used by way of illustration], it would be only necessary to apply the same rule to varying circumstances and persons, to demand the same ratio between varying extremes. And it is not too much to assert that all the perplexity and misunderstanding on the subject of diligence and negligence are due to the habit of confounding the specific acts and circumstances, which must always vary, with the ratio or relation between them, which remains always the same.”
In 13 Am. and Eng. Ency. Law (2d ed.), 416, it is said: “The very statement of the general rule that reasonable care is required to prevent injuries to others from fire, implies that what is reasonable care must depend upon the circumstances of each particular case. It is, however, inaccurate to say, as many of the cases do, that the degree of care varies with the particular circumstances. It is only reasonable care that is required in any case; but the greater the danger, or the more likely the communication of fire and the ignition of the property of others, the more precautions and the closer vigilance reasonable care requires.” As above suggested, cases can be found in which it is stated that the degree of care to be used depends upon the danger, but, as has been observed by this court, it is not every statement of the law as found in an opinion or text-book, however well and accurately put, which can properly be embodied in an instruction. Garfield v. State, (1881) 74 Ind. 60. The viciousness of the instruction in question lies in its tendency to lead the jury to infer that the legal standard of ordinary care was raised by the circumstances recited, thus making possible the inference that a great but undefined extent of care was required, whereas all that the law exacted was the ordinary care which the situation demanded, or such care as it is to be assumed that an ordinarily prudent man would exercise in the circumstances, were the risk his own.[[74]]
In this case the acts and omissions which the complaint charged as negligent were various, so that the question of what was ordinary care arose in a number of ways, and we can only conclude, in view of the misleading character of the instruction under consideration, that prejudicial error has intervened.