Bunn, C. J.,
(after stating the facts). The appellant street-car company in argument is made to defend mostly against the contention of plaintiff in the court below that a lien can be fixed upon its property for any judgment rendered in this action, under the act approved March 19, 1889 ; and its counsel in their briefs do not make any specific objection to the instructions and admission of testimony.
1. Evidence of previous negligence inadmissible. The first contention of the appellant railroad company is that the court below erred in not permitting it to introduce other and previous acts of negligence of the street-car driver, Byers, at times and places near the time and place of the act complained of.
There are several different states of case in which the proposition of appellant’s counsel is correct. Thus, where one uses defective machinery or appliances, and an accident occurs of which, in the very nature of things, it is impossible or impracticable to obtain any direct or positive proof of the particular fact — in such a case, evidence of accidents and instances similar to those in question, that have previously occurred, is admissible to show that the person using the machinery or appliances had previous knowledge, or should have had, of the defects by and through which the injury had been done; also the probability that the injury was the result thereof. The most frequent illustration of this rule is in the case of locomotive engines emitting an unusual amount of sparks by reason of imperfect spark arresters, and so forth. This, as is known, is the fruitful source of fires along railroad tracks ; and, in all these cases, evidence of previous operations of the engines has been held admissible, not only as fixing notice, but under the doctrine of probabilities, as in the case of Cleaveland v. Grand Trunk Railway Company, 42 Vermont, 449, cited by counsel. So, also, does that rule hold good in regard to injuries occasioned by defective railroad track, as in the case of Mobile Railroad v. Aschraft, 48 Ala. 15, also cited by counsel. This kind of evidence is also admissible to prove the habits of a horse, when the question is whether he was injured through his fright or viciousness, there being no other way to determine the question ; as in the case of Whittier v. Franklin, 46 N. H. 23.
But the rule in cases like the one under consideration, where the question is simply one of negligence or non-negligence on the part of a person on a particular occasion, is that such evidence is not admissible. See Christensen v. Union Trunk Line, (Wash.) 32 Pac. Rep. 1018 ; Towle v. Pac. Imp. Co. 33 Pac. Rep. 207 ; McDonald v. Savoy, 110 Mass. 49 ; Hays v. Millar, 77 Pa. St. 238 ; Boick v. Bissell, (Mich.) 45 N. W. Rep. 55 ; Atlanta, etc. Railroad Co. v. Newton, 85 Ga. 517, also reported in 11 S. E. Rep. 776.
%. Instruction as to negproTed. The second contention is that the instruction given by court on its motion is erroneous, in that it instructs the jury that it was the duty of those in charge of the train "to do all in their power to prevent the collision;” whereas, as is contended, the trainmen were not held to the highest degree of care in respect to the deceased, he not being their passenger at the time. That position is correct in a sense, and yet it is misleading in the manner in which it is here stated. In the first place, the court below did not instruct the jury that the trainmen owed deceased, as a passenger on the street-car or otherwise, the highest degree of care, nor words to that effect, as the contention seems to imply, but the language of the court was that they should have done all in their power to prevent the collision “when they discovered the street-car without 'a driver, or zvith a driver who was negligent in his duty, approaching and near the track, and in danger of a collision with the railroad train; and if, under stich circumstances, they could have stopped the train in time to avoid the collision, and failed to do so, the railroad company is liable." To do all they could in the exigency stated by the court was nothing but ordinary and reasonable care and diligence under the circumstances ; and the ordinary care to which non-carriers are bound is a care that varies with the circumstances of each case.
3. Doctrine Mgng&nct disapproved. The third contention is that the court erred in refusing to give the fifth instruction asked by the defendant railroad company, which was to the effect that a passenger, in case of a collision, cannot recover for injuries occasioned thereby against the other party, if his own carrier is at fault. This doctrine had its origin in the English case of Thorogood v. Bryan, 8 C. B. 115, and all the American cases in which it has prevailed have been decided upon the authority of that case. It, however, has perhaps never received anything more than ■ a minority support in this country. That case has in recent years (1888) been brought on appeal to the House of Lords, and each and every one of the grounds upon which it rested has there been held to be unsound, and the case, consequently, has been overruled.
We do not regard the case of Duggins v. Watson, 15 Ark. 118, cited by counsel, as being strigtly in point, although it does in a manner refer to the then English rule as announced in Thorogood v. Bryan as the law applicable to that case. However that may be, the law now is that where a passenger is injured in a collision, the non-carrier may be sued, notwithstanding the carrier is also at fault.
4i As t0 comt The fourth contention is that the court erred in giving the sixth and seventh instructions asked by the plaintiff. The majority of the court are of the opinion that the sixth instruction is abstract, but that the error is not prejudicial. The seventh instruction was properly given.
tioli 5raeeii-p" collision. m The fifth contention is that it was error in the court to modify the first instruction asked by the defendant railroad company by the insertion of the words included in the brackets. The court, in the first part of the im struction, had declared the law to be that the mere fact of the accident raises a presumption of the negligence of the street-car company, because deceased was its passenger at the time, but there is no such presumption against the railroad company. The court then said to the jury that they would be justified in finding against the street-car company from the mere fact of the accident, with the qualification in the brackets, “(unless the presumption is rebutted by the evidence in the whole case) and then proceeds to instruct them that they cannot find against the railroad company unless its negligence is shown by a preponderance of evidence, as there is no presumption of its negligence in the case. We cannot see the error in this modification ; and if there be such, it is, we think, harmless.
6. As to duties of streetcar drivers.
The answer to the sixth contention is that there is no evidence as to what were the duties of the street-car driver, and it would be manifestly improper for the court to detail a set of duties and rules for his guidance in the way of instructions. There was no error in refusing the third instruction asked by the defendant railroad company. Besides, the law on the point was sufficiently declared in other instructions given.
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Bunn, C. J.,
(after stating the facts). The appellant street-car company in argument is made to defend mostly against the contention of plaintiff in the court below that a lien can be fixed upon its property for any judgment rendered in this action, under the act approved March 19, 1889 ; and its counsel in their briefs do not make any specific objection to the instructions and admission of testimony.
1. Evidence of previous negligence inadmissible. The first contention of the appellant railroad company is that the court below erred in not permitting it to introduce other and previous acts of negligence of the street-car driver, Byers, at times and places near the time and place of the act complained of.
There are several different states of case in which the proposition of appellant’s counsel is correct. Thus, where one uses defective machinery or appliances, and an accident occurs of which, in the very nature of things, it is impossible or impracticable to obtain any direct or positive proof of the particular fact — in such a case, evidence of accidents and instances similar to those in question, that have previously occurred, is admissible to show that the person using the machinery or appliances had previous knowledge, or should have had, of the defects by and through which the injury had been done; also the probability that the injury was the result thereof. The most frequent illustration of this rule is in the case of locomotive engines emitting an unusual amount of sparks by reason of imperfect spark arresters, and so forth. This, as is known, is the fruitful source of fires along railroad tracks ; and, in all these cases, evidence of previous operations of the engines has been held admissible, not only as fixing notice, but under the doctrine of probabilities, as in the case of Cleaveland v. Grand Trunk Railway Company, 42 Vermont, 449, cited by counsel. So, also, does that rule hold good in regard to injuries occasioned by defective railroad track, as in the case of Mobile Railroad v. Aschraft, 48 Ala. 15, also cited by counsel. This kind of evidence is also admissible to prove the habits of a horse, when the question is whether he was injured through his fright or viciousness, there being no other way to determine the question ; as in the case of Whittier v. Franklin, 46 N. H. 23.
But the rule in cases like the one under consideration, where the question is simply one of negligence or non-negligence on the part of a person on a particular occasion, is that such evidence is not admissible. See Christensen v. Union Trunk Line, (Wash.) 32 Pac. Rep. 1018 ; Towle v. Pac. Imp. Co. 33 Pac. Rep. 207 ; McDonald v. Savoy, 110 Mass. 49 ; Hays v. Millar, 77 Pa. St. 238 ; Boick v. Bissell, (Mich.) 45 N. W. Rep. 55 ; Atlanta, etc. Railroad Co. v. Newton, 85 Ga. 517, also reported in 11 S. E. Rep. 776.
%. Instruction as to negproTed. The second contention is that the instruction given by court on its motion is erroneous, in that it instructs the jury that it was the duty of those in charge of the train "to do all in their power to prevent the collision;” whereas, as is contended, the trainmen were not held to the highest degree of care in respect to the deceased, he not being their passenger at the time. That position is correct in a sense, and yet it is misleading in the manner in which it is here stated. In the first place, the court below did not instruct the jury that the trainmen owed deceased, as a passenger on the street-car or otherwise, the highest degree of care, nor words to that effect, as the contention seems to imply, but the language of the court was that they should have done all in their power to prevent the collision “when they discovered the street-car without 'a driver, or zvith a driver who was negligent in his duty, approaching and near the track, and in danger of a collision with the railroad train; and if, under stich circumstances, they could have stopped the train in time to avoid the collision, and failed to do so, the railroad company is liable." To do all they could in the exigency stated by the court was nothing but ordinary and reasonable care and diligence under the circumstances ; and the ordinary care to which non-carriers are bound is a care that varies with the circumstances of each case.
3. Doctrine Mgng&nct disapproved. The third contention is that the court erred in refusing to give the fifth instruction asked by the defendant railroad company, which was to the effect that a passenger, in case of a collision, cannot recover for injuries occasioned thereby against the other party, if his own carrier is at fault. This doctrine had its origin in the English case of Thorogood v. Bryan, 8 C. B. 115, and all the American cases in which it has prevailed have been decided upon the authority of that case. It, however, has perhaps never received anything more than ■ a minority support in this country. That case has in recent years (1888) been brought on appeal to the House of Lords, and each and every one of the grounds upon which it rested has there been held to be unsound, and the case, consequently, has been overruled.
We do not regard the case of Duggins v. Watson, 15 Ark. 118, cited by counsel, as being strigtly in point, although it does in a manner refer to the then English rule as announced in Thorogood v. Bryan as the law applicable to that case. However that may be, the law now is that where a passenger is injured in a collision, the non-carrier may be sued, notwithstanding the carrier is also at fault.
4i As t0 comt The fourth contention is that the court erred in giving the sixth and seventh instructions asked by the plaintiff. The majority of the court are of the opinion that the sixth instruction is abstract, but that the error is not prejudicial. The seventh instruction was properly given.
tioli 5raeeii-p" collision. m The fifth contention is that it was error in the court to modify the first instruction asked by the defendant railroad company by the insertion of the words included in the brackets. The court, in the first part of the im struction, had declared the law to be that the mere fact of the accident raises a presumption of the negligence of the street-car company, because deceased was its passenger at the time, but there is no such presumption against the railroad company. The court then said to the jury that they would be justified in finding against the street-car company from the mere fact of the accident, with the qualification in the brackets, “(unless the presumption is rebutted by the evidence in the whole case) and then proceeds to instruct them that they cannot find against the railroad company unless its negligence is shown by a preponderance of evidence, as there is no presumption of its negligence in the case. We cannot see the error in this modification ; and if there be such, it is, we think, harmless.
6. As to duties of streetcar drivers.
The answer to the sixth contention is that there is no evidence as to what were the duties of the street-car driver, and it would be manifestly improper for the court to detail a set of duties and rules for his guidance in the way of instructions. There was no error in refusing the third instruction asked by the defendant railroad company. Besides, the law on the point was sufficiently declared in other instructions given.
7. As to negligence of trainmen. We do not think the court erred in refusing the railroad company’s fourth instruction. While it is doubtless true that the street-car driver should have kept a lookout for trains crossing his track, yet, if he did not, that fact alone might not exonorate the railroad trainmen, even though they did everything they could to prevent the accident after they saw the street-car. Something they did or neglected to do before seeing the street-car might have placed them in a position which rendered it impossible — more difficult, at least — to prevent the accident. The instruction was misleading, and should have been refused.
The question whether or not the property of the street-car company is the subject of the statutory lien for the judg'ment rendered in cases like this is presented to us only by the pleadings of the plaintiff, and he abandons that contention in his argument. We have not, therefore, that question before us. e
This is a suit for compensatory damages only. By the first instruction given to the jury at the instance of the plaintiff, which is a copy of the statute on the subject, they were told, in effect, that if they should find for the plaintiff they “ should give such damages as they shall deem a fair and just compensation to the wife and next of kin (in this case to the administrator) with reference to pecuniary injuries resulting from the death of deceased.” There was not evidence to justify the jury in fixing the amount they did in this case. They simply gave the plaintiff the exact and full amount he claimed in his complaint, and apparently failed to consider very carefully the evidence as to that part of the case. We are unable to find from the testimony, viewing it in the most favorable light to the plaintiff, from any standpoint, that the damages could have much exceeded the sum of twenty thousand dollars, and in so far the verdict was without evidence to sustain it, and the judgment will be reversed for that cause unless the plaintiff will, within fifteen days, enter a remittitur down to the sum of S20,000, in which case the judgment for that amount'will be affirmed.