Bleckley, Chief Justice.
A widow brought an action against a railroad company for .the homicide of her'husband. The trial was had upon very voluminous evidence. The jury found a verdict for the plaintiff. The defendant moved for a new trial on various grounds. The motion, was denied, and that is the basis of this writ of error.
1. Amongst the grounds of the motion for a new trial was one which complained that tire judge declined to give-a request in charge to the jury, which request sought to protect, the defendant against the burden of proof as to the negative of certain propositions. The court, instead of giving that request, gave, in.its general charge, instructions that to recover, it. was necessary for the plaintiff-to prove the affirmative of these propositions; in other words, the court told the jury that the burden of proving these things was upon the plaintiff. There is nothing in this ground of the motion. To say-that the burden of proving a fact is on the plaintiff, implies that -there is no burden on the defendant to establish the non-éxistence of such fact.. i ..
[51]*512. Another request to charge was denied. By doubtless, an unconscious ingenuity, this request omits an essential element of correctness. It submits to the jury whether a specific act would be consistent or inconsistent with ordinary diligence ; but it fails to refer it to the jury to deter, mine whether the deceased could, by the exercise of ordinary diligence, have avoided the consequences of the defendant’s negligence. “If you believe from the evidence that the' dead man stepped on the track a few feet in front of the engine or tender, and that if he had looked before stepping on, he could have seen the engine in time notto step on the track, and that in thus stepping on the track, he was not in the exercise of ordinary care, then the plaintiff cannot recover, and it would be your duty to find for the defendant.” This request stakes the whole case upon-a step; and while it refers to the jury the question as to> whether the taking of that step was a deviation from ordinary care, it does not refer to the jury the question as to:whether the observance of ordinary care would have enabled the stepper to avoid the consequences of the de-= fendant’s negligence. This step may have been chargeable-to the deceased to reduce the damages as an act of co-n-rtributory negligence; but'the request did not limit it in. any such manner; it extends it over the whole case and» makes it the basis, or seeks to make it the basis, of defeating all recovery. Failure of the injured party in the- user of ordinary care, by untimely stepping upon a railfoaadi track at a public crossing, is no complete bar to the recovery of damages, unless, by the use of ordinary care, the consequences due to the negligence of the other party could have been avoided. Code, §§2 972, 3034. And whether they could or could not is a question for the jury. The court was virtually asked to decide that question, and very properly declined to do it.
3. Still another request made and declined is equally if not more ingenious, the ingenuity being, again, as we take it for granted, perfectly unconscious. The request was [52]*52this: “When one attempts or intends to-cross a railroad track, it would be his duty, before stepping on the track, to use his senses of bearing and seeing; and if he fails to do it, and you believe that in such failure he was not in the exercise of ordinary care, and that ordinary care required him to look and listen, and if bo bad done so be would have avoided the injury, then your verdict should be for the defendant.” It requires some study of this compact body of language to reach the infirmity whiclrit covers over. The equivalent of it I have endeavored to present in a more diffuse and expanded .form. It will be noticed that the request says, “ When one attempts,” etc., making the proposition 'perfectly universal. Expressing that universality in its full-compass, the request will run about this way.: In all .cases and under all circumstances, it, is the duty of any and every person, when he attempts of intends to cross a railroad track, to use his senses of hearing and seeing before stepping upon the track. If any person, in any case or under any circumstances, fails to do it, and if you believe-(now since ! have defined the duty of all) that in such failure he was not in the exercise of-ordinary care, and if you believe that ordinary care required him to look and listen (and I -have just told you that all must look and listen), and.if yon believe further that had he looked and listened he would .have avoided the injury, then your verdict should b.e for the defendant.
What is the concrete substance of all this? It is, that the plaintiff’s husband was bound to look and listen before stepping on the track, and if he failed to do so and was killed, but would not-have been killed had he not failed, his-widow cannot recover. That which is everybody’s duty under all circumstances,-certainly must be included in all the degrees of diligence, even the lowest, and the omission of it must be a failure in. ordinary care;-and so the. classification by the jury, either of -the duly-or of the omission, would be of no moment or materiality. After- the court [53]*53has classed a thing as duty, how could the jury fail to class it as diligence, and its omission as want of diligence ?
The precise thing which every man is bound to do before stepping upon a railroad track, is that which every prudent man would do under similar circumstances. If prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means. The court cannot instruct the jury what a prudent man would do, for in legal contemplation, the jury know it better than the court. If instructions on that subject had to be given, the jury would be the instructors and the court the instructed, that is, the jury would charge the judge on that part of the case, rather than receive a charge from him. It is not for the court to teach (he jury the ways of the prudent man, but to warn them of the duty on the part of all others to make their ways like his. The court cannot point out to the jury specifically the ways of the prudent, the law supposing those ways better known to the jury than to the judge. It is not incumbent upon the court to instruct the jury that it is the duty of one who attempts or intends to cross a railroad track to use his senses of hearing and seeing before stepping on the track.
4. In the course of his very able, excellent and perspicuous charge, the judge instructed the jury that ordinary care was synonymous with, or meant about the same thing as common prudence, and this is complained of in the motion for a new trial. Ordinary care is that care which every prudent man observes ; and to describe it as synonymous with, or about equivalent to common prudence, is not misleading, especially when this exposition is applied alike to the conduct of both parties, and it was so applied in this case. The railroad company got the benefit of it, because the jury were told that if the railroad company had observed ordinary care, ordinary and reasonable care in the sense of common prudence, the company was not liable for this injury. On the other hand, it was stated [54]*54that if the deceased observed the‘like care, the company, if negligent, would not be excused from the consequences of its negligence.
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Bleckley, Chief Justice.
A widow brought an action against a railroad company for .the homicide of her'husband. The trial was had upon very voluminous evidence. The jury found a verdict for the plaintiff. The defendant moved for a new trial on various grounds. The motion, was denied, and that is the basis of this writ of error.
1. Amongst the grounds of the motion for a new trial was one which complained that tire judge declined to give-a request in charge to the jury, which request sought to protect, the defendant against the burden of proof as to the negative of certain propositions. The court, instead of giving that request, gave, in.its general charge, instructions that to recover, it. was necessary for the plaintiff-to prove the affirmative of these propositions; in other words, the court told the jury that the burden of proving these things was upon the plaintiff. There is nothing in this ground of the motion. To say-that the burden of proving a fact is on the plaintiff, implies that -there is no burden on the defendant to establish the non-éxistence of such fact.. i ..
[51]*512. Another request to charge was denied. By doubtless, an unconscious ingenuity, this request omits an essential element of correctness. It submits to the jury whether a specific act would be consistent or inconsistent with ordinary diligence ; but it fails to refer it to the jury to deter, mine whether the deceased could, by the exercise of ordinary diligence, have avoided the consequences of the defendant’s negligence. “If you believe from the evidence that the' dead man stepped on the track a few feet in front of the engine or tender, and that if he had looked before stepping on, he could have seen the engine in time notto step on the track, and that in thus stepping on the track, he was not in the exercise of ordinary care, then the plaintiff cannot recover, and it would be your duty to find for the defendant.” This request stakes the whole case upon-a step; and while it refers to the jury the question as to> whether the taking of that step was a deviation from ordinary care, it does not refer to the jury the question as to:whether the observance of ordinary care would have enabled the stepper to avoid the consequences of the de-= fendant’s negligence. This step may have been chargeable-to the deceased to reduce the damages as an act of co-n-rtributory negligence; but'the request did not limit it in. any such manner; it extends it over the whole case and» makes it the basis, or seeks to make it the basis, of defeating all recovery. Failure of the injured party in the- user of ordinary care, by untimely stepping upon a railfoaadi track at a public crossing, is no complete bar to the recovery of damages, unless, by the use of ordinary care, the consequences due to the negligence of the other party could have been avoided. Code, §§2 972, 3034. And whether they could or could not is a question for the jury. The court was virtually asked to decide that question, and very properly declined to do it.
3. Still another request made and declined is equally if not more ingenious, the ingenuity being, again, as we take it for granted, perfectly unconscious. The request was [52]*52this: “When one attempts or intends to-cross a railroad track, it would be his duty, before stepping on the track, to use his senses of bearing and seeing; and if he fails to do it, and you believe that in such failure he was not in the exercise of ordinary care, and that ordinary care required him to look and listen, and if bo bad done so be would have avoided the injury, then your verdict should be for the defendant.” It requires some study of this compact body of language to reach the infirmity whiclrit covers over. The equivalent of it I have endeavored to present in a more diffuse and expanded .form. It will be noticed that the request says, “ When one attempts,” etc., making the proposition 'perfectly universal. Expressing that universality in its full-compass, the request will run about this way.: In all .cases and under all circumstances, it, is the duty of any and every person, when he attempts of intends to cross a railroad track, to use his senses of hearing and seeing before stepping upon the track. If any person, in any case or under any circumstances, fails to do it, and if you believe-(now since ! have defined the duty of all) that in such failure he was not in the exercise of-ordinary care, and if you believe that ordinary care required him to look and listen (and I -have just told you that all must look and listen), and.if yon believe further that had he looked and listened he would .have avoided the injury, then your verdict should b.e for the defendant.
What is the concrete substance of all this? It is, that the plaintiff’s husband was bound to look and listen before stepping on the track, and if he failed to do so and was killed, but would not-have been killed had he not failed, his-widow cannot recover. That which is everybody’s duty under all circumstances,-certainly must be included in all the degrees of diligence, even the lowest, and the omission of it must be a failure in. ordinary care;-and so the. classification by the jury, either of -the duly-or of the omission, would be of no moment or materiality. After- the court [53]*53has classed a thing as duty, how could the jury fail to class it as diligence, and its omission as want of diligence ?
The precise thing which every man is bound to do before stepping upon a railroad track, is that which every prudent man would do under similar circumstances. If prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means. The court cannot instruct the jury what a prudent man would do, for in legal contemplation, the jury know it better than the court. If instructions on that subject had to be given, the jury would be the instructors and the court the instructed, that is, the jury would charge the judge on that part of the case, rather than receive a charge from him. It is not for the court to teach (he jury the ways of the prudent man, but to warn them of the duty on the part of all others to make their ways like his. The court cannot point out to the jury specifically the ways of the prudent, the law supposing those ways better known to the jury than to the judge. It is not incumbent upon the court to instruct the jury that it is the duty of one who attempts or intends to cross a railroad track to use his senses of hearing and seeing before stepping on the track.
4. In the course of his very able, excellent and perspicuous charge, the judge instructed the jury that ordinary care was synonymous with, or meant about the same thing as common prudence, and this is complained of in the motion for a new trial. Ordinary care is that care which every prudent man observes ; and to describe it as synonymous with, or about equivalent to common prudence, is not misleading, especially when this exposition is applied alike to the conduct of both parties, and it was so applied in this case. The railroad company got the benefit of it, because the jury were told that if the railroad company had observed ordinary care, ordinary and reasonable care in the sense of common prudence, the company was not liable for this injury. On the other hand, it was stated [54]*54that if the deceased observed the‘like care, the company, if negligent, would not be excused from the consequences of its negligence. In one aspect, it looks as if this is too free a translation of the phrase, “ordinary care,” but accepting the word “common,” in its ordinary meaning, it is about equivalent to “ordinary,” and lexicographers, I believe, so x>ronounce. And usually words are to be taken in their ordinary signification. Code, §1.
5. Several other requests to charge were refused, .but in looking at the charge as given, we find that it substantially, and in apt terms, covers all of the requests that are material, and that announce sound law. For that reason, the failure to give them is no cause for a new trial.
6. The facts of the case are very numerous, and somewhat complicated. The witnesses were in conflict, especially about the speed of the traiiq and some other material fact. The general impression produced upon the mind by reading the whole evidence, consisting of some two hundred pages in print, is that in all probability this railroad company observed due diligence; in all probability, but it is not certain; and there is evidence to warrant the jury in finding as they did.
To reach their finding they had to run over and set aside a great deal that was stated by witnesses, but we cannot absolutely pronounce, as a legal judgment, that they violated their duty in so doing. Out away a considerable portion of the defendant’s evidence, or all of it, and there is ample to found the verdict on; cut away the plaintiff’s evidence relating to diligence, and there is ample left for successful defence. But when the two are combined and fused together, different minds would probably differ, touching the effect of it as a whole. Its effect upon my own mind is that the company was x>robably not at fault; but this is a mere perhaps. The jury have found to the contrary, and the court below, who was near to them, nearer to the case than we are, upheld their finding; and because 'we are constrained by the law (for all the members of the [55]*55court share in the doubt) we affirm the judgment. As matter of stern legal duty, this court yields its strong doubts of the correctness of the verdict.
Judgment affirmed.