Bowie, C. J.,
delivered the opinion of this Court.
. These appeals are taken from the rulings of the Court below, excluding certain evidence offered on the part óf the appellant, Bannon, and rejecting certain instructions offered by the plaintiff and defendants, and the granting of others in lieu thereof by the Court, from which rulings each party appealed.
The cause of action, is injury sustained by the plaintiff, through the alleged wrongful act, neglect or default of the defendants or their agents, whilst moving their engine and cars in reversed order, over a semi-circular track called a “Y,” on the Locust Point branch of the defendants’ road. After evidence of the injury, for the purpose of showing negligence, the plaintiff proposed to prove it was the daily practice of the defendants to move their cars without a guard at the rear of the train over the “Y,” which was so situated that the engineer at the engine could not see the rear, which evidence the Court rejected, being of opinion that the testimony must be confined to the mode in which the cars were managed at the time of the occurrence of the injury complained of; which constitutes the ground of the plaintiff’s first exception.
There can scarcely be a question about the propriety of the Court’s decision in this exception.
The general conduct of the defendants was not in issue. They were not required to meet such an investigation by [119]*119the pleadings. The acts and omissions of their servants -and agents at other times, furnished no legitimate evidence of their conduct upon the particular occasion referred to ; and if they did, the safe conduct of the cars, for •a long time before, without injury, would rather tend to mitigate than inflame the injury, showing there was no danger to the community in that mode of managing the cars. The evidence was collateral, and incapable of affording any reasonable presumption or inference as to the matters in issue and properly excluded. Vide 1 Greenlf., sec. 52. The first and second prayers of the plaintiff, referring exclusively to the measure of damages, will be considered in connection with the instruction of the Court upon that subject.
The series of instructions’ offered by the defendants, sub•stantially affirms :
1 st. If the place where the accident happened was not a thoroughfare and used as such, or being crossed at the time by the plaintiff, and the cars were moving at a speed which would have permitted either adult or child to have •avoided them, had he been using the street as a thoroughfare, or crossing the same, if he had used such diligence as was reasonably to have been expected of him, then the plaintiff is not entitled to recover.
2nd. If the plaintiff was just before the accident playing in a place of safety, and seeing the cars, ran and jumped on "them, and fell off and was injured, he is not entitled to recover, although the jury believe the defendants did not use the care and diligence that would have prevented him from getting on the cars.
3rd. If in addition to the above facts, the plaintiff had been warned, and was of an age to understand such warning, and to know he was doing wrong, he is not entitled to recover, although the defendants had not used such care and diligence as would have prevented the plaintiff from getting on the cars.
[120]*1204th. If at the time of the accident the defendants were not complying with the ordinances offered in evidence regulating the use of locomotive engines in the City of Baltimore, yet the plaintiff is not entitled to recover, if the jury believe that his conduct was the immediate cause of the accident and his injury, the result of a want on.his part of that degree of care which was under all the circumstances naturally and reasonably to be expected in one of the plaintiff’s age and intelligence.
The instruction of the Court is silent as to the place being a thoroughfare, but affirms, if the defendants were owners of the track along which their cars were drawn or propelled about the business of the company, then, in the management and movement of said cars the company is bound to exercise the utmost care and diligence which it was within their means and power to employ to prevent accidents, endangering the lives of the people of the city; and if the jury find the plaintiff was injured by the defendants’ cars, and if the defendants in the use of their cars, had exercised the highest degree of care and diligence which it was within their means and power to employ, the said accident could have been prevented, then the plaintiff is entitled, to recover ; but, although the jury may find that the said accident could have been prevented by the- use of such care and diligence on the part of the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been avoided by the exercise of that degree of care .by said plaintiff, which was, under the circumstances, to be naturally and reasonably expected from one of the plaintiff’s age and intelligence.
The theory of the defendants’ prayers, taken collectively, is, that if the injury was owing to the waxit of the reasonable care and diligence on the part of plaintiff, the defendants are not liable; although they might have prevented the accident by the exercise of the utmost care and diligence.
[121]*121The theory of the Court’s instruction is, that the defendants, in the movement and management of their engines and cars, were bound to use the utmost care and diligence, and if, by so using it, the accident might have been prevented the plaintiff is entitled to recover, unless the jury believe the accident could have been avoided by the exercise of such care as was reasonably to have been expected from the plaintiff.
The difference between the two propositions is, that under the Court’s instruction the defendants were bound to use the utmost care and diligence, and if the defendants were not in default at all, and the plaintiff was, he cannot recover, under the defendants’ prayer, although the defendants were in default, yet the plaintiff cannot recover if his own want of care, etc., was the cause of his injury.
In the preceding case of the State, use of Coughlan, vs. B. & O. R. R. Co., supra,p. 84, we have pointed out the different degrees of diligence required by law, of carriers of passengers, etc., towards those with whom they are in the relation of carriers by contract, or trust and confidence, and the degree of diligence required of them towards third persons, merely in the exercise of their legal rights. In the former case, as lately decided by this Court in the case of Worthington vs. The Baltimore and Ohio Rail Road, the defendants are required to use the utmost care and diligence, but in the latter they are required only to exercise such care and skill as persons of ordinary prudence practice about their business. Vide 8 Barb. 368. Rail Road vs. Norton, 24 Penn. Rep., 465.
Willard, Justice, delivering the opinion of the Court, in the case of Brand vs. The Troy and Schenectady Rail Road Company, uses this emphatic language, “that a passenger on board a stage coach or rail road car, and a person walking on foot in the street, do not stand in the same relation to the carrier. Towards the one the lia[122]*122bility of the latter springs from a contract, express or implied, and upheld by an adequate consideration.
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Bowie, C. J.,
delivered the opinion of this Court.
. These appeals are taken from the rulings of the Court below, excluding certain evidence offered on the part óf the appellant, Bannon, and rejecting certain instructions offered by the plaintiff and defendants, and the granting of others in lieu thereof by the Court, from which rulings each party appealed.
The cause of action, is injury sustained by the plaintiff, through the alleged wrongful act, neglect or default of the defendants or their agents, whilst moving their engine and cars in reversed order, over a semi-circular track called a “Y,” on the Locust Point branch of the defendants’ road. After evidence of the injury, for the purpose of showing negligence, the plaintiff proposed to prove it was the daily practice of the defendants to move their cars without a guard at the rear of the train over the “Y,” which was so situated that the engineer at the engine could not see the rear, which evidence the Court rejected, being of opinion that the testimony must be confined to the mode in which the cars were managed at the time of the occurrence of the injury complained of; which constitutes the ground of the plaintiff’s first exception.
There can scarcely be a question about the propriety of the Court’s decision in this exception.
The general conduct of the defendants was not in issue. They were not required to meet such an investigation by [119]*119the pleadings. The acts and omissions of their servants -and agents at other times, furnished no legitimate evidence of their conduct upon the particular occasion referred to ; and if they did, the safe conduct of the cars, for •a long time before, without injury, would rather tend to mitigate than inflame the injury, showing there was no danger to the community in that mode of managing the cars. The evidence was collateral, and incapable of affording any reasonable presumption or inference as to the matters in issue and properly excluded. Vide 1 Greenlf., sec. 52. The first and second prayers of the plaintiff, referring exclusively to the measure of damages, will be considered in connection with the instruction of the Court upon that subject.
The series of instructions’ offered by the defendants, sub•stantially affirms :
1 st. If the place where the accident happened was not a thoroughfare and used as such, or being crossed at the time by the plaintiff, and the cars were moving at a speed which would have permitted either adult or child to have •avoided them, had he been using the street as a thoroughfare, or crossing the same, if he had used such diligence as was reasonably to have been expected of him, then the plaintiff is not entitled to recover.
2nd. If the plaintiff was just before the accident playing in a place of safety, and seeing the cars, ran and jumped on "them, and fell off and was injured, he is not entitled to recover, although the jury believe the defendants did not use the care and diligence that would have prevented him from getting on the cars.
3rd. If in addition to the above facts, the plaintiff had been warned, and was of an age to understand such warning, and to know he was doing wrong, he is not entitled to recover, although the defendants had not used such care and diligence as would have prevented the plaintiff from getting on the cars.
[120]*1204th. If at the time of the accident the defendants were not complying with the ordinances offered in evidence regulating the use of locomotive engines in the City of Baltimore, yet the plaintiff is not entitled to recover, if the jury believe that his conduct was the immediate cause of the accident and his injury, the result of a want on.his part of that degree of care which was under all the circumstances naturally and reasonably to be expected in one of the plaintiff’s age and intelligence.
The instruction of the Court is silent as to the place being a thoroughfare, but affirms, if the defendants were owners of the track along which their cars were drawn or propelled about the business of the company, then, in the management and movement of said cars the company is bound to exercise the utmost care and diligence which it was within their means and power to employ to prevent accidents, endangering the lives of the people of the city; and if the jury find the plaintiff was injured by the defendants’ cars, and if the defendants in the use of their cars, had exercised the highest degree of care and diligence which it was within their means and power to employ, the said accident could have been prevented, then the plaintiff is entitled, to recover ; but, although the jury may find that the said accident could have been prevented by the- use of such care and diligence on the part of the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been avoided by the exercise of that degree of care .by said plaintiff, which was, under the circumstances, to be naturally and reasonably expected from one of the plaintiff’s age and intelligence.
The theory of the defendants’ prayers, taken collectively, is, that if the injury was owing to the waxit of the reasonable care and diligence on the part of plaintiff, the defendants are not liable; although they might have prevented the accident by the exercise of the utmost care and diligence.
[121]*121The theory of the Court’s instruction is, that the defendants, in the movement and management of their engines and cars, were bound to use the utmost care and diligence, and if, by so using it, the accident might have been prevented the plaintiff is entitled to recover, unless the jury believe the accident could have been avoided by the exercise of such care as was reasonably to have been expected from the plaintiff.
The difference between the two propositions is, that under the Court’s instruction the defendants were bound to use the utmost care and diligence, and if the defendants were not in default at all, and the plaintiff was, he cannot recover, under the defendants’ prayer, although the defendants were in default, yet the plaintiff cannot recover if his own want of care, etc., was the cause of his injury.
In the preceding case of the State, use of Coughlan, vs. B. & O. R. R. Co., supra,p. 84, we have pointed out the different degrees of diligence required by law, of carriers of passengers, etc., towards those with whom they are in the relation of carriers by contract, or trust and confidence, and the degree of diligence required of them towards third persons, merely in the exercise of their legal rights. In the former case, as lately decided by this Court in the case of Worthington vs. The Baltimore and Ohio Rail Road, the defendants are required to use the utmost care and diligence, but in the latter they are required only to exercise such care and skill as persons of ordinary prudence practice about their business. Vide 8 Barb. 368. Rail Road vs. Norton, 24 Penn. Rep., 465.
Willard, Justice, delivering the opinion of the Court, in the case of Brand vs. The Troy and Schenectady Rail Road Company, uses this emphatic language, “that a passenger on board a stage coach or rail road car, and a person walking on foot in the street, do not stand in the same relation to the carrier. Towards the one the lia[122]*122bility of the latter springs from a contract, express or implied, and upheld by an adequate consideration. Towards the other he is under no obligation but that of justice and humanity. While engaged in their lawful business, both are bound to use a degree of caution suited to the exigencies of the case; the one to avoid the occasioning an injury, and the other to avoid receiving it. What that degree of caution is, which they are respectively bound to exercise, may be seen by a brief consideration of the degrees of care which the law exacts from persons engaged in the various pursuits of life.” After reviewing the different degrees of diligence and care required of bailees and others, he proceeds :
“In general the highest diligence is not exacted of any person except when a compensation is paid for the service, or the party injured was in the power, and under the control of the defendants as in the case of stage passengers ; or the party officiously obtrudes his services upon another ; or is the sole party receiving a benefit from the act, or the party occasioning the injury, was in the wrong place, or engaged in an unlawful calling.” If both parties stand on an equality as to means of avoiding the accident, and both are engaged in a lawful employment, it is hard to conceive how more than ordinary diligence can be demanded. 8 Barbour Sup. Ct. Rep., 378, 380.* * In illustration of the same principle, “one who was engaged upon the track of a railway, by the direction of the superintendent of the company, and was injured by the engine of another company lawfully upon the track, could not recover of the latter company, although their engineer was guilty of carelessness, being himself also in fault.” Railroad vs. Norton, 24 Penn. Rep., 465.
This language was used in the case of an injury inflicted on a woman while walking on the track of a railway in the streets of a city.
[123]*123The first instruction granted by the Court required the jury to find the exercise of the utmost care and diligence which it was within the means and power of the defendants to employ, to prevent accidents endangering the lives of the people, to exonerate the defendants from liability, unless they should find the accident could have been avoided by the exercise of that degree of care by the said plaintiff, which was, under the circumstances to be expected from one of the plaintiff’s age. This was exacting more than the law required of the defendants, as it would seem from the authorities cited, and therefore erroneous.
The second instruction given by the Court was intended as a substitute for the first and second offered by the plaintiff, prescribing the kind and measure of damages. These, upon the assumption that the injury was caused by gross negligence of the defendants, authorized the jury to allow “such punitive or exemplary damages, as in their discretion they might think right and proper under the circumstances.” 2d. That they were not limited to the actual pecuniary injury they may believe the plaintiff has .suffered, but were at liberty to award damages for all future pecuniary damages which will result from the injury, and also such damages as would be an adequate compensation for the pain and illness consequent upon the injury complained of.
The first of the plaintiff’s prayers was liable to objection for the unlimited discretion it proposed to give the jury, without any guide to its exercise ; the pernicious tendency of which practice has been so strongly exposed in the cases cited by this Court in the case of The State, use of Coughlan, vs. The B. & O. R. R. Co., supra, p. 84. Without adopting or denying the proposition so elaborately discussed by the learned jurists, Sedgwick and Greenleaf, that “wherever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, instead of adhering to the [124]*124system or even language of compensation, the law permits the jury to give what it terms punitive, vindictive, or exemplary damages," its application must entirely depend upon the circumstances of the case and the evidence in the cause. There is no element of fraud, malice or oppression in this case, hut the inquiry is, was there gross negligence ?
Gross negligence is a technical term ; it is the omission of that care “which even inattentive and thoughtless men never fail to take of their own property," it is a violation of good faith. Angel on Carriers, sec. 10. It implies malice and evil intention. Hence in all questions of punitive or vindictive damages, the intention of the defendants is a material consideration.
“What is, and what is not gross negligence, is often a mixed question of law and fact." Angel on Carriers, sec. 22, 27. Pierce on Rail Roads, 282, 283. Whether malice or gross negligence existed, is a question for the jury • but what facts are sufficient to prove malice or gross negligence, is in such cases the province of the Court to determine.
“The Judge is to inform the jury as to the degree of diligence, or care or skill which the law demands of the party, and what duty it devolves on him, and the jury are to find whether that duty has been done. Hunter vs. Caldwell, 11 Jur., 770. 10 Adol. and Ell., 69. 11 M. and W., 817, and other cases cited by Greenleaf, note 1 to sec. 49, page 70, 11th edition.
The law requiring of the defendants only ordinary care and diligence towards third persons, not passengers or connected with the defendants by contract, trust or confidence ; there was no evidence of gross negligence, which would warrant the Court to instruct the jury, that if they should find such on the part of the agents of the defendants, they might allow punitive or exemplary damages. The prayer was for this additional reason properly rejected.
[125]*125The case being divested of all aggravating circumstances, the second instruction granted by the Court enumerated all the elements of compensatory damages which properly belonged to it.
The infancy of the plaintiff does not change either the degree of care or diligence to be used by the defendants in the management of their cars and engines, or enhance the measure of damages to be adopted by the jury. The rules regulating the rights and duties of persons natural and artificial to each other, must be uniform ; they cannot vary according to the years or degree of intellect of natural persons, without producing an uncertainty in the law destructive of all principle. For this reason, and others which might be in the conflict of suggested decisions, we think those of Hartfield vs. Roper, 21 Wend., 615, and Willetts vs. Buffalo & Rochester R. R., 14 Barbour, are to be preferred to Lynch vs. Nardin, 1. Q. B., 29.
In Hartfield vs. Roper (21 Wend., 615,) the action was by an infant two years old. He was in the sleigh path alone, and was run over and injured. It was held that no action would lie if the injury was not voluntary, or from culpable negligence. The rule of negligence was applied to the case, and the want of care on the part of the parents was regarded as a want of care on his part.
Willetts’ case was that of an infant lunatic left by his father in the cars, and put out by the conductor, ignorant of his lunacy, in consequence of his failing to show his ticket ; afterwards he was run over by another train and killed. It was held the negligence of the parent was the negligence of the child, and his administrator could not recover. The general principle is thus announced: “all persons incapable of diligence should, and usually have guardians to care for them ; upon them the duty of care and diligence is devolved, and their negligence must in [126]*126law be regarded as tbe negligence of the incapable infant or lunatic when they have been injured in cases arising between them and third persons acting without notice.”
(Decided February 28th, 1866.)
It results from what has been said, that the defendants were bound, in the management of their engines and trains, to use such diligence and care, as prudent and discreet persons would use and exercise on such occasions, having due regard to the safety of property and persons with such motive power and trains ; and if, owing to the absence of such diligence and care the plaintiff was injured, he was entitled to recover, unless from his own negligence or want of reasonable care, he brought the injury upon himself.
The defendants’ first, second, third and fourth prayers are defective, in not presenting this alternative distinctly to the jury. They enumerate certain facts, and specify a certain want of care in preventing the plaintiff from getting on the cars, but do not refer to the absence of ordinary care and diligence in the general management of the engine and train on that occasion, as an element of the condition on which would necessarily depend the right of the plaintiff to recover.
The conclusion from the foregoing is, that the Court below-was correct in rejecting the evidence - set out in the plaintiff’s exception, and in rejecting the plaintiff’s and defendants’ prayers; and also in giving its second instruction ; but that there was error in the first instruction granted by the Court, hence the judgment below must be reversed and a procedendo awarded.
Judgment reversed and Procedendo awarded.