Union Traction Co. v. Berry

On Petition fob Rehearing.

Lairy, C. J.

— In the adoption of the original opinion the court acted advisedly with full knowledge of the great current of authority with which it is apparently in conflict. On petition for rehearing, able briefs have been filed in which authorities from this state and from other states are arrayed and discussed. It must be conceded that the cases generally state the rule to be that carriers of passengers are required to use the highest degree of care practicable; but we cannot think that .the courts by the use of such language intended to state that the law exacts a different standard of duty in cases where the relation of carrier and passenger exists from that which- it exacts in cases where other relations are shown which -give rise to a duty to use care. If it was the purpose to state a distinct standard of duty exacted by law, it is certain that no court has ever undertaken *526 to define it. The courts have defined the standard of “ordinary care” as “such care as a person of ordinary-prudence would use under the facts, circumstances and .conditions disclosed by the evidence in a particular case.” Under this definition, the party owing the duty to use ordinary care must take into consideration the character and extent of the dangers incident to the business in which he is engaged, and he must regard the conditions under which the thing is done and the circumstances which surround and attend it; and, in view of the nature of the act, undertaking, or business, the dangers incident thereto, and the surrounding conditions and attendant circumstances, he must foresee every danger that a person of reasonable foresight would anticipate, and he must take every means of guarding against such dangers that reasonable judgment and prudence would suggest, and, in case he fails to do an act or to observe a precaution which would have been done or observed under like conditions by a person of ordinary prudence, he fails in that particular to measure up to the standard of duty expressed by the term “ordinary care.”

The duty to use ordinary care requires the party on whom the duty rests to consider the character of the act, undertaking, or business in which he is engaged and the probable dangers incident thereto, as well as all other existing conditions and circumstances, and in determining the means to be used, the precautions to be adopted and the care to be generally exercised in view of the probable dangers, and the- surrounding circumstances, he is required to exercise such intelligence, foresight, judgment and prudence as a'person possessed of ordinary intellectual endowments would exercise in doing the same thing under like conditions and circumstances. This being true, any standard of duty which would exact more than ordinary care would require *527 more care than a person of ordinary intellectual endowments would be capable of exercising.

1. It is the duty of the jury to determine, as a question of fact in each case, whether the conduct of the party on whom the duty rests measures up to the standard of ordinary care as defined by the law. In cases where the act, undertaking or business out of which the injury arises is one involving great danger to life or valuable property by reason of the dangerous character of the machinery or other agencies employed, the jury may be justified in finding that a person of ordinary prudence, in view of the danger and the exist-ting conditions and circumstances, would have made use of every reasonable means available, and would have exercised every precaution which reasonable prudence could suggest, to guard against the danger. Conduct on the part of a defendant which measures up to. the standard of duty under such conditions and circumstances constitutes ordinary care and nothing more.

8. In cases where the danger involved is slight, and where the consequences likely to resuft would not affect life or valuable property, the jury may rightly find as a fact that a person of ordinary prudence would not have adopted the same means or have observed the same precautions as would be required of such a person in the presence of greater danger involving more serious results. It thus appears that the character of the means to be employed, the precautions to be observed, and the acts to be performed or avoided in guarding against danger and preventing injury may vary in different cases according to the dangers involved, the consequences to be apprehended and the other circumstances shown by the evidence. Conduct which would measure up to the standard of ordinary care in one case might fall far short when measured *528 by the same standard in another case involving other conditions and circumstances.

5. The duty to use care is a matter of law which arises out of the relation between parties. The duty is the same .under all relations in which it arises. The duty does not differ in cases because the relations ■ out of which it arises are different. The standard to be applied in all cases is the same; but the conduct required to measure up to the standard of duty may differ according to the conditions and circumstances shown by the evidence in each case.

1. It is for the jury to say, as a matter of fact, what conduct will fill the requirement of ordinary care. In deciding the question of fact the jury should not consider the relation out of which the duty arises. It can make no difference whether the relation between the parties be passenger and carrier, employer and employe, bailor and bailee, or any other relation out. of which a duty to use care arises as a matter of law. In deciding the question of fact under discussion, the j ury should consider only the dangers involved, the consequences to be apprehended as a result of such danger, and the conditions shown by the evidence.

■ All persons and corporations engaged as common carriers of passengers are not bound as a matter of law to observe the same precautions and to exercise the same caro, and vigilance to secure the safety of passengers, for the reason that the means of transportation adopted by one may be stage coaches drawn by horses at a moderate speed over good roads under circumstances which involve little danger to passengers; while the other may carry passengers in coaches drawn by locomotives over railroads at high speed under conditions involving much greater danger to the lives and limbs of the passengers. It may well be that tests which would be regarded as a matter of fact to be sufficient and adequate, when ap *529 plied to determine the strength and soundness of the wheels or other parts of the equipment of a stagecoach, would be entirely inadequate as a matter of fact, if employed as a means of testing the parts of locomotives or coaches to determine their fitness to withstand the strain to which they were to be subjected. The duty which the law imposes is the same in both c’áses,'and the standard by which the care is to be measured,- in determining whether it comes up to the duty, is the same in both; but when the jury is called on to apply the standard furnished by-the court to the conditions and circumstances shown by the evidence, a question of fact arises which it is the province of the jury to decide.

7. The confusion which has arisen and which has led to the statement in some cases that the law imposes on carriers the duty to exercise the highest degree of care has grown out of a failure to distinguish between what may be decided by a court as a matter of law and what may be determined by a jury as a matter of fact from a consideration of conditions and circumstances disclosed by evidence. The evidence may be of such a nature as to justify a jury in exacting the highest precautions for safety that would suggest themselves to a person of reasonable prudence; but it is not the province of the court to consider the evidence and to state as a matter of law that the circumstances and conditions require the highest precautions. It is not the province of the court to say in any case that the defendant was required under the circumstances . shown to use the highest and most effective precautions which would occur to the mind of a person of ordinary intelligence, prudence and skill. If such a requirement is proper under the evidence, it is the province of the jury to so determine; and a court cannot so decide and state without passing on a question of fact and thus in *530 vading the province of the jury. *In the use of the expression, “highest degree of care,” by courts in opinions, there can be little doubt that it was intended to apply to what the jury might properly exact from a consideration of the dangers to be anticipated and the facts and conditions under which the injury occurred as shown by the evidence. That is the sense in which the expression is generally used in the opinions and text-books, and in that sense it may not be inapt, although it is generally inaccurate. It does not follow, however, that the expression can be employed in instructions as stating a standard of duty imposed by law. Such a standard is incapable of a definition which would enable a jury to apply it intelligently to the conditions and circumstances disclosed by the evidence in a particular case. No court should prescribe a rule for the guidance of a jury unless it is able to define and explain the rule in such a way as to enable the jury to apply it intelligently.

10. It has been suggested that a departure from the rule which imposes on carriers the duty to use the highest degree of care practicable to preserve the safety of passengers has the effect of abrogating the rule of res ipsa loquitur as applied in cases involving injuries to passengers. The suggestion is without force. The existence or application of the rule of res ipsa loquitur does not in any way depend on the standard of care imposed by law; but it depends entirely on the nature of the occurrence out of which the injury arises. Where the agency or thing which causes the injury is in the exclusive control of the defendant or his agents, and the occurrence which produces the injury is one which in' its nature does not ordinarily happen if those in charge exercise due care, the thing itself speaks; and proof of such an occurrence makes a prima facie case of negligence against the defendant. The rule is one of limited application, and it would be *531 out of place here for the court to attempt to state the limitations, as the rule has no application in this case, and is mentioned only incidentally. It may be stated, however, that the application of the rule has not been limited to cases .involving injuries to passengers, but it has been applied to cases in which ordinary care has always been the recognized standard. City of Decatur v. Eady (1916), 186 Ind. 205 , 115 N. E. 577 , L. R. A. 1917E 242; Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593 , 106 N. E. 365 , Ann. Cas. 1917A 474.

The court as a whole has carefully considered the briefs filed on petition for rehearing; and after such consideration and after consultation every'member of the court is satisfied that the rule announced in the original opinion is correct in principle. The court has not reached its conclusion by arrogating to itself any superior wisdom, or by assuming to possess any superior powers of logic or reason; but, from a careful and conscientious consideration of the reasons which we have endeavored to state, the conclusion reached seemed to be inevitable, and it was accordingly adopted.

Rehearing denied.

Note. — Reported in 121 N. E. 655 , 124 N. E. 787 .