Goble v. Delaware L. & W. R.

10 F. Cas. 502

Opinion

NIXON, District Judge

(charging jury). The action is to recover damages for injuries which the plaintiff alleges he has sustained from the negligence of the agents of the defendant corporation. Railway companies in the. transportation of their passengers do not insure their lives; but they do undertake to use the greatest skill and diligence in carrying them safely, and are responsible for the direct consequences of any negligence or want of care or skill on the part of an employee. The supreme court of the United States, nearly thirty years ago, announced their view of the responsibility of railroad corporations in cases of this kind. The judges all concurred in saying that when carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence, and whether the consideration of such transportation be pecuniary or otherwise, the present safety of the passenger should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of “gross.” This language has been approved and reaffirmed in several cases since, and there has been no disposition shown to relax the strict rule of accountability therein announced. But although they are held to the greatest possible care and diligence, they are not liable, even when chargeable with negligence, if it appear that the accident arose from the want of ordinary and reasonable care on the part of the plaintiff, in consequence of which he contributed to the injury by his own fault. There is also, gentlemen, another principle of law to be carried in your mind in determining a suit for personal injuries received. It is this: Where it appears that the injury complained of was the result of a collision without the fault of the complaining party, that fact is prima facie evidence that there was carelessness or negligence or want of skill on the part of the company, and there is upon them the burden of proving that the accident was not occasioned by the fault of their agents.

Now, after these somewhat general observations, let me remark that the case involves the consideration by the jury, in the first place, of two questions. First, was the injury of the plaintiff caused by the negligence or the lack of carefulness and skill on the part of the defendant? Secondly, did the plaintiff contribute to the injury by any fault or carelessness on his part? Now, if the first of these questions is answered in the affirmative and the second in the negative, the only remaining inquiry is, what amount of damages under the circumstances, as shown in the evidence, should be awarded? * * * If you come to the conclusion, gentlemen, that the injury to the plaintiff sprang from the collision of the cars, your next inquiry will be whether it was brought about by the negligence of the defendant company.

Now, what is negligence? It is easy, of course, to say in a general way, it Is an omission of duty; it is a violation of the obligation which enjoins care and caution in what we do. ' It ordinarily excludes design, and hence a man, however honest he may be, cannot excuse himself from the consequences of not doing what he ought to have done by saying, “Why, I did not act because I did not think there was danger.” It is his duty to think, and if he fails to use the efforts or take the precaution which an ordinarily prudent man would employ in like circumstances, he is guilty of negligence. Upon the question of contributory negligence, the judge said: “It may be suggested and has been suggested that as the forward smoking car was not the safest place in the train, the plaintiff must take the consequences of being there.” But that is not the law. The railway company is responsible for the safety of its passengers in any place which they have provided for their transportation. If a passenger takes the risk of a ride upon the engine and gets hurt, it is his fault and not the fault of the company, as they have not agreed to carry passengers safely upon the engine. But a smoking car is intended for passengers where they can indulge their tastes and appetite without offending the olfactory nerves of their more fastidious (shall I say “more cleanly” 7) fellow passengers. You thus come to the last and probably most difficult inquiry: What amount of damages shall be awarded? I can give you no help except to aid you with a few suggestions. In the first place, this is no case for vindictive or exemplary damages, for there is no pretense that there was any willful neglect. The plaintiff is only entitled to what the law calls “compensatory damages.” I do not mean by this that you must try to make the plaintiff whole, or put him in as good condition as he was before the accident. In the very nature of the case that is impossible. No amount of money, gentlemen, can compensate for loss of health or physical suffering. But then you can do something, and my duty is to tell you what the elements of damages are which you ought to consider in making up your verdict. This is a difficult thing to do, and I know of no rule which I can lay down which is applicable to every case. During the progress of the case my attention has been called to a recent case in the English high court of justice (Phillips v. Southwestern Ry. Co. [4 Q. B. Div. 406]), in which elements of damages which the jury ought to consider are so clearly laid down by Chief Justice Cock-burn that I am quite willing to adopt them in charging you. He says in his opinion that the elements of damages are: First. The bodily injury sustained. Secondly: The pain undergone. Thirdly. The effect on the health of the sufferer according to its degree and its probable duration, as likely to be temporary or permanent. Fourthly: The expense incidental to attempts to cure or to lessen the amount of injury. Fifthly. The pecuniary loss sustained . through inability to attend to a profession or business, which again may be of a temporary character or may be such as to incapacitate the party for the remainder of bis life. I have not seen lately, as it seems to me, a more clear, succinct and excellent rule upon the subject of damages than is thus laid down in this recent opinion of one of the highest courts of Great Britain.

The jury rendered a verdict for the plaintiff for §12,000.