State v. Manchester & Lawrence Railroad

52 N.H. 528

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1873
• Status: Published

Opinion

Sargent, C. J.

Our statute, under which this indictment is found, is as follows—Gen. Stats., ch. 264, sec. 14: “ If the life of any person not in their employment shall be lost by reason of the negligence or carelessness of the proprietors of any railroad, or by the unfitness or gross negligence or carelessness of their servants or agents, in this State, such proprietors shall be fined not exceeding five thousand dollars nor less than five hundred dollars, ‘and one half such fine shall go to the widow and the other half to the children of the deceased. If there is no child, the whole shall go to the widow; and if no widow, to his heirs according to the law regulating the distribution of intestate estates.”

Another provision of the statute, upon which this indictment seems to be based, is contained in sec. 4, ch. 148, Gen. Stats.: “ No proprietors of a railroad shall run their engine, cars, or train at a greater speed than six miles an hour across any highway, or near the compact part of any town.”

Some of the general allegations in the indictment are, that, in the town of Salem, there is a certain public highway, which is properly described; that the track of the defendants’ railroad crosses said highway at a place called Ballard’s crossing, in said Salem, upon the grade or level of said highway; that, on December 17, 1870, the defendants were proprietors of said railroad, and by their servants and agents, ran a locomotive steam engine and a train of cars upon said railroad and across said public highway ; that Benjamin Woodlmry, of said Salem, not being in the employment of said railroad, was then passing along said public highway, at the crossing aforesaid, when the defendants, with said engine and train, suddenly surprised, overtook, struck, threw down, and instantly killed the said "Woodbury. These facts are recapitulated in each count, with some modification ; and each count states that one Gordon is the administrator of said Woodbury’s estate, and states that he left a widow and children, who survive him, giving the names of each.

The first and second counts also charge that said engine and train, at the time of crossing said highway, were running at a greater speed than six miles per hour, to wit, at the speed of twenty-five miles per hour; and the third count charges that they were running at great speed and violence, — the first and third charging that this was done negligently and carelessly, and the second that it was also done unlawfully.

But, however carelessly or negligently it may have been done, it was not unlawful, because sec. 4 of ch. 148, Gen. Stats., had, before the finding of this bill, been amended by the Laws of 1868, ch. 1, sec. 42, by inserting the word in before the words “or near,” so that the prohibition was against running at a greater speed than six miles an hour “ across any highway in or near the compact part of any town.” It is not alleged or shown that this highway at the crossing was in or near the compact part of any town. There was nothing, therefore, to show that this running was unlawful, although it may have been done with the utmost degree of negligence and carelessness, which must depend upon the circumstances as proved at the trial. We shall have occasion to refer to these several counts again in the course of the opinion. „

The first question that arises is, whether this indictment is to be treated like a civil or a criminal proceeding. Is it intended to punish the corporation for committing a murder, as an individual would be punished for a crime ? or, is it only intended to make the company liable in damages to the family and heirs of the deceased for the injury done to them in depriving them of one upon whom they leaned for support and guidance ?

At common law, no value is ever put upon human life, to be recovered by way of damages in an action. Nickerson v. Harriman, 38 Me. 279; State v. Railway, 58 Me. 176. It has generally been supposed to be a well established principle of the common law, that a party is not liable, eiviliter, for the destruction of human life by any person, whether the act which caused the death were felonious or not. Wyatt v. Williams, 43 N. H. 102, and cases on pages 105 and 106; 2 Redf. on Railways (5th ed.) 267, 268;—but see dissenting opinion of Bramwell, B., in Osborn v. Gillett, L. R. 8 Exchq. 88. It was for the purpose of obviating this supposed defect in the common law, and removing the supposed objection to such recovery, that our statute was made, providing for the payment of a sum of money for the loss of life, to be recovered for the benefit of the widow, children, or heirs.

A similar statute had been made in England; and in most of our States similar legislation has followed. In some jurisdictions a civil suit has been authorized, and in others a proceeding criminal in form like ours has been adopted, but all with the same object. In Maine, the remedy is by indictment, the same as here; and it is held, in State v. Railway, 58 Me. 176, 181, that “ the whole object of these provisions was to obviate the common law doctrine in reference to human life, before stated, and to enable the heirs or family of the deceased to recover, for their own use, damages to a certain extent for the loss of life. It was not the intention of the legislature to do more than to do away, to this extent, with the rule that all claim for damages must stop at the grave. * * * It was thought just and expedient to hold those corporations and carriers liable, when death results from their wrong or neglect.”

It was also held, that the same rules of evidence and the same principles of law should be applied in such cases where the form is criminal, as in like cases where the redress is sought by a civil action for damages.

In Massachusetts, Maine, New Hampshire, Connecticut, and Rhode Island, the remedy is by indictment. In Maryland, the action must be brought in the name of the State, but is in form civil, and is for the benefit of the person entitled to damages. In most of tire other States, as well as in England, the statutes authorize a civil action for damages in behalf of widow, child, or heir. But in all these different forms of proceeding the same end is to be attained, and substantially the same rules are to be applied as though they were civil actions for damages. See Shearman & Redfield on Negligence (2d ed.), ch. 17, and authorities and notes; 2 Red. on Railways (5th ed.) 267, and seq.;—see, also, remarks of Perley and Bartlett, arguendo, in B. C. & M. Railroad v. The State, 32 N. H. 223, and of Bell, J., in the opinion 225, 226.

The first question raised by the case is as to the admissibility of the testimony as to the same train, run by the same engineer and fireman, having sometimes passed the same crossing where the accident happened, during the preceding year, without sounding the whistle or ringing the bell, as tending to show that the same men would be more likely to have neglected the performance of these duties upon the occasion in question. The regulations required that upon each occasion when this crossing was passed the bell should be rung and the whistle sounded. There was direct evidence, on one side that neither of these signals was given upon the occasion of the accident, while there was just as direct evidence upon the other side that both these signals were properly given. Here was a direct conflict in the evidence. Which shall the jury believe ? Had this duty been invariably performed according to requirement, or had these servants of the road grown careless and negligent in regard to it? Would their conduct on former occasions have any bearing upon the probabilities of the case ? Would they be more likely to neglect their duty on this occasion if they had frequently neglected it before, and with impunity, than they would if they had always scrupulously observed it ?

Negligence is said to consist in the omitting to do something that a reasonable man would do, or the doing something that a reasonable man would not do, in either case causing, unintentionally, mischief to a third party. 1 Hilliard on Torts (2d ed.) 131. It would seem to be axiomatic, that a man is more likely to do or not to do a thing, or. to do it or not to do it in a particular way, as lie is in the habit of doing or not doing it. But this must be understood of acts which are done, or omitted to be done, without any particular intent or purpose to injure any one. It cannot apply to acts that are done intentionally, wilfully, or maliciously, because such acts are done with a specific object in view, and they are performed, not by force of habit, but with a definite purpose. It would not be competent evidence that a man was guilty of murder, to show that he had committed several other murders before ; and so of any other crime, or any wilful trespass, or any act done and intended for the specified object in question.

If, in this case, it had been charged that these agents of the corporation had knowingly, intentionally, wilfully, or maliciously done or omitted to do any act for the purpose of injuring the deceased or any body else, then the only questions would be, Was the act done, or omitted, as charged? and did the knowledge, the intention, the will, or the malice, exist when the act was done or omitted ? But when the question is, Did these servants of the road, without any intention whatever, and through mere negligence or carelessness, omit to give these signals op that occasion ? we think the inquiry was properly made as to what they had done before in that regard, and whether they had or had not grown habitually negligent of the requirements of the road in that particular. In this view of the case, we think the evidence was admissible, not as evidence of character, not as evidence of fitness or unfitness, but simply as having some tendency to show that on this particular occasion these agents were more propably negligent and careless, because they had before frequently neglected the same duty with impunity, and had thus become habitually negligent in that regard. This exception is overruled.

The evidence offered, to show the fitness of Wadleigh for the place he held, was properly rejected, for the reason stated, that the State made no claim that the defendants were liable by reason of the unfitness of this or any other servant of the road. This charge in the indictment was to be proved affirmatively; but here was not only no proof, but no claim upon that ground. There was no occasion for the evidence offered. The State may abandon any charge contained in the indictment, or any count contained therein, and proceed upon the residue; and the court would see that, after a claim had once been abandoned in that way, it was not again revived or in any way relied on by the State without at least giving the defendant a full opportunity to meet and answer it.

When the plaintiff had rested,'the defendants moved the court to order a verdict for the defendants for four distinct reasons stated in the case, which reasons contain a statement of various circumstances, which might weigh more or less with the jury, according as they might or might not be modified by other facts and circumstances ; and this motion was properly overruled, and, so far as the case shows, no exception was taken to that ruling. But that fact is probably immaterial, as the same questions are raised upon other parts of the case.

The defendants then introduced their testimony. Instructions were given to the jury by the court, and a verdict of guilty was returned, which the defendants moved to set aside for supposed error in the rulings of the court, and, also, as being against the evidence, and unsupported by evidence, upon certain specified points. Let us first consider the questions raised by the rulings of the court; and, for convenience in their examination and. discussion, we will change the order in which we find them stated in the case, and arrange them as follows:

1. The jury were instructed “ that, if the want of ordinary care on the part of Mr. Woodbury proximately contributed to his death, there can be no recovery here, even if the railroad or their agents were in fault, and were guilty of negligence.”

2. The jury were also instructed “ that, if the deceased was negligent in crossing at this particular time, still the defendants might be convicted., if it appeared that the negligence of the servants of the defendants was the more proximate cause of the injury ; and that, should they find, upon the evidence in the case, that, although Benjamin Wood-bury carelessly, without the exercise of due cgre, came upon the track, still, if the defendants’ servants, after they saw Iris danger, might have avoided the fatal result by the exercise of proper care, and through their gross negligence drove upon him, they would be liable.”

3. The court also instructed the jury “ that- the great question in the case was, whether Mr. Woodbury came to his death on the day named by reason of the gross carelessness or negligence of the servants or agents of the * * * railroad.”

4. “ That gross negligence is the want of slight care.”

5. “ That they were to consider what would be ordinary and proper and suitable care on the part of the agents of the corporation in charge of this train ; that all the circumstances appearing in the case were to be considered by them, as bearing upon the degree of care which would be reasonable and proper to be exercised on the occasion that ordinary care would be “ such care as men of ordinary capacity would exercise under these circumstances that the degree of care which would be reasonable in one position or on one occasion, would be quite inadequate on another occasion; that it must be measured by the circumstances under which the act is done; that the degree of care which would be reasonable and proper in controlling the powerful element steam, and in the management of such a dangerous instrument as a locomotive, would be ver}' different from the degree of care that would be reasonable and proper in driving a team of horses and wagon upon the highway ; that it was for the jury to say whether the omission of the engineer to sound the whistle at the wliistling-post would be gross negligence on his part, that would make the company liable for the death of the deceased provided his death was the consequence of that neglect; that it was for them to say what degree of care would be a reasonable amount of care to be required of a man of ordinary capacity, in crossing the railroad track at the time and under the circumstances at which the deceased undertook to cross ; * * * that the care and diligence and circumspection to be required of Mr. Woodbury on this occasion are to be measured by the circumstances in which he was placed, in the same way as the care and diligence required of the servants of the corporation are to be measured by the circumstances under which they were placed; that they were to consider all the circumstances, — whether the crossing of the track was dangerous, and whether ordinary care would require that a man should look for the approach of a train.

The first two instructions raise the question of proximate and remote causes, which has been much discussed in many jurisdictions, though but little in New Hampshire. They attempt to apply in a measure the maxim, Injure non remota causa, sed próxima, spectatur, which, though not to be found in Broom’s Legal Maxims, nor in the civil law, is said to have originated with Aristotle, and to have descended through the schoolmen to Lord Bacon, and is classed as one of Bacon’s “ maxims of the law.” See 4 Am. Law Review 201. But as Aristotle and the schoolmen were philosophers and logicians rather than lawyers, and as Lord Bacon was a philosopher and logician as well as a lawyer, it may be doubtful whether this maxim should be classed as a legal or a philosophical maxim. The próxima causa was evidently originally substantially the same as the causa "causans, or the cause necessarily producing the result. 4 Am. Law Rev. 204. But the practical construction of “ proximate cause ” by the courts has now come to be the cause which naturally led to, and which might have been expected to be directly instrumental in producing, the result. Marble v. Worcester, 4 Gray 395, 410, and seq.; Bennett v. Lockwood, 20 Wend. 223; McGrew v. Stone, 53 Pa. St. 436; Shear. & Redf. on Negligence, secs. 9, 10, 33, 403, 594, 596.

We have seen that this proceeding, though in the name of the State, is substantially a civil proceeding to recover damages, and is to be governed by the same rules, as far as practicable, that govern and are applicable to civil actions. And it is well settled in this State, as elsewhere, as a general rule, that in ordinary cases of negligence the plaintiff cannot recover if his own fault contributed to produce the injury complained of. See the authorities cited on this point in the defendants’ brief. That rule would apply, no doubt, to this case, just as to any other civil proceeding.

But this rule has some marked exceptions. In 1 Hilliard on Torts (2d ed.), ch. 4 is devoted to the general subject of actions by plaintiffs who are guilty of wrong or negligence, or in pari delicto ; and, after illustrating the general doctrine fully, he says, page 159, sec. 17,—“ The general principle, however, above stated and illustrated, that one party cannot recover damages from another when both are in fault, or in pari delicto, is subject to many qualifications and exceptions; ” and after stating many exceptional cases, he arrives at the following general conclusions, — pp. 160, 161, — that the general rule, in pari delicto, is held subject to the following qualifications:

1. The injured party, although in fault to some extent, may be entitled to damages for an injury which could not have been avoided by ordinary care on his part.

2. When the negligence of the defendant is the proximate cause of the injury, but that of the plaintiff only remote.

3. Where a party has in his custody or control dangerous implements or means of injury, and negligently uses them or places them in a situation unsafe to others, and another person, although at the time even in the commission of a trespass or otherwise somewhat in the wrong, sustains an injury.

4. And when the plaintiff, in the ordinary exercise of his own rights, allows his property (or himself) to be in an exposed and hazardous position, and it becomes injured by the neglect of ordinary care and caution on the part of the defendant, he is entitled to reparation, for the reason that, although he thus took upon himself the risk of loss or injury by mere accident * * * he did not voluntarily incur the risk of injury by the negligence of another.

“ More especially,” he adds (p. 161), “ the general rule, in pari delicto, is held not strictly applicable where the responsibility of the defendant is, by the policy of the law, made more rigid than that of the plaintiff, the parties in such case not being considered as equally in fault; ” and cites the case of Reeves v. Railroad Co., 30 Pa. St. 454, where the servants of the railroad drove a train towards a grade crossing, round a curve and through a cut, at great speed, and injured the plaintiff, who was crossing in the highway; and held, that the traveller was not guilty of negligence in not anticipating and providing for such action, nor, in crossing a railroad at such a point, is he bound to give a signal to an approaching train. The doctrine thus stated by Hilliard is substantially the same as that laid down in Kerwhaker v. C. C. & C. Railroad Co., 3 Ohio St. 172. which is a leading and well considered case.

But it is said, in Shearman & Rodfield on Negligence (secs. 25 and 26), that the precise doctrine of law upon this subject, which is supported by the weight of authority in England and America, is, that “ one who is injured by the mere negligence of another cannot recover at law or in equity any compensation for his injury, if he, by his own or his agents’ ordinary negligence or wilful wrong, proximately contributed to produce the injury of which he complains, so that, but for his concurring and cooperating fault, the injury would not have happened to him, except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

The English cases which hold to this doctrine are Davies v. Mann, 10 Mees. & Wels. 545, in which Ebskine, J., told the jury that, though the act of the plaintiff, in leaving his donkey in the highway so fettered as to prevent liis getting out of the way of carriages travelling along the way, might be illegal, still, if the proximate cause of the injury was the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and be instructed them, if they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver,.to find for the plaintiff. In the Exchequer, where this case was reviewed, Lord Abinger, C. B., said, even if this ass was a trespasser, and “ the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” And Parke, B., said, — “Although the ass may have been wrongfully there, still, the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on the public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.” And see Lynch v. Nurdin, 1 Ad. & Ell. (N. S.) 29, and Mayor, &c., of Colchester v. Brooke, 7 Ad. & Ell. (N. S.) 339, 377, where Lord Denman, C. J., said, — “As a general rule of law, every one, in the conduct of that which may be harmful to others if misconducted, is bound to the use of due care and skill; and the wrong-doer is not without the pale of the law for this purpose.”

So, in Tuff v. Warman, 2 C. B. (N. S.) 740, and S. C., 5 C. B. (N. S.) 573, it is held that mere negligence, or want of ordinary care or caution, will not disentitle the plaintiff to recover, unless it be such that but for that negligence, or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might, by the exercise of ordinary care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff. And it is there said that this principle is deducible from the opinion of the judges in Butterfield v. Forrester, 11 East 60; Bridge v. Railway Co., 3 Mees. & Wels. 246; Davies v. Mann, 10 Mees. & Wels. 548; Dowell v. Navigation Company, 5 Ellis & B. 206;—and see Dimes v. Petley, 15 Q. B. 276.

So, in Scott v. Dublin & Wicklow R. Co., 11 Irish Com. Law 377, it was held that the plaintiff cannot recover unless the injury was caused by the negligence of the defendant, nor even then, if he has so far contributed to the accident, by want of ordinary care, that but for that the accident would not have happened; but, strictly, even in that case, the plaintiff is not precluded from a recovery if the defendant might, by ordinary care, have avoided the consequences of the plaintiff’s neglect. This is said by Judge Redfield, in his Law of Railways (5th ed.), vol. 2, p. 256 (*236), to be a full and correct statement of the law deducible from the cases.

This doctrine has been held to be law, though not perhaps to the full extent, in Massachusetts, in Spofford v. Harlow, 3 Allen 176, where it is said, by Chapman, J., that a party may be acting in violation of some particular statute, and still.be under the general protection of the law. A third person has no fight, merely because he is thus in fault, to run into him and injure him carelessly and recklessly; and see Parker v. Adams, 12 Met. 415, 419; Lovett v. Railroad Co., 9 Allen 557, 562; Welch v. Wesson, 6 Gray 505; Fisk v. Wait, 104 Mass. 71; Kearns v. Sowden, id. 63, note; Steele v. Burkhardt, id. 59; and, also, to a certain extent in New Hampshire, in Norris v. Litchfield, 35 N. H. 271, where it is held that “ the fact that the plaintiff is a trespasser or violator of the law does not of itself discharge another from the observance of due and proper care towards him ; neither will it necessarily preclude him from a recovery against a party guilty of negligence”;—and see Corey v. Bath, 35 N. H. 530; and Gale v. Lisbon, 52 N. H. 174.

In Connecticut, it is held that the negligence of a party, which precludes his right to recover for an injury suffered through the negligence of another, must be a direct and actual, and not merely a constructive, wrong ; and this wrong must be the proximate cause of the injury, and not merely the remote and incidental cause of it. Isbell v. Railroad Company, 27 Conn. 393; 2 Redf. on Railways 255 (*235). This is a leading and well considered case.

It is said, on page 404, Ellsworth, J., delivering the opinion, that “ a remote fault in one party does not, of course, dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demand this. And it is no answer for the neglect of it, to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Preventive remedies must therefore always be proportioned to the case in its peculiar circumstances — to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it.”

And again: “An intoxicated man is lying in the travelled part of the highway, helpless, if not unconscious: must I not use care to avoid him ? May I say that he has no right to encumber the highway, and therefore carelessly continue my progress regardless of consequences ? * * * or, if the intoxicated man has entered a private lane or by-way, and will be run over if the owner does not stop his team which is passing through it, must he not stop it ?” '

And again, page 405 : “ Let us suppose, in this case, that, instead of the plaintiff’s cattle, the plaintiff himself had been on the railroad track, and that he was too deaf to hear the noise of the train or the ordinary alarm given in such a case : this would certainly have been most culpable and inexcusable conduct on his part, but would it have absolved the defendants from the duty to exercise reasonable care if they saw the plaintiff, or with proper attention might have seen him ? Ought they not in that case to check the speed of the train ? May they run over him merely because he is on the track ? They may well suppose that he is deaf, or blind, or insane, or bewildered, and have no right, as we think, to continue their headway as if he was not there. If they are bound to ring their bell and sound their whistle, as they certainly are, they may be bound for the same reasons to go further and check their speed a little, or stop entirely.” The judge concludes that the carrying out of the spirit of the Golden Rule, in this class of cases, is as good law as it is sound morality ; and that the kindred maxim, sie utere tuo ut alienum non laedas, is but another expression of that rule, and should govern the defendants’ conduct in this instance, even if there be a possible remote neglect on the part of the plaintiff. And see Company v. Vanderbilt, 16 Conn. 421; Johnson v. Patterson, 14 Conn. 1; Birge v. Gardiner, 19 Conn. 507; Daley v. Railroad Company, 26 Conn. 591; Beers v. Housatonic R. Co., 19 Conn. 566.

So, in Vermont, it is held that if the negligence of the defendant is proximate and that of the plaintiff remote, the plaintiff may recover for the injury; and that, “ if the plaintiff were guilty of negligence, or even of positive wrong, * * * the corporation are yet bound to the exercise of reasonable care and diligence in the use of their road and management of the engine and train, and if for the want of that care the injury arose, they are liable.” Trow v. Railroad Company, 24 Vt. 487; Robinson v. Cone, 22 Vt. 213.

In Ohio, the same doctrine is held. Kerwhaker v. C. C. & C. Railroad Co., 3 Ohio St. 172, before cited ;—see, also, Railroad Co. v. Elliott, 4 Ohio St. 475. And in Indiana, Wright v. Brown, 4 Ind. 95, Railroad Co. v. Caldwell, 9 Ind. 397, and Railroad Co. v. Adams, 26 Ind. 76. And in Illinois, Railroad Co. v. Still, 19 Ill. 499. And in Kentucky, Railroad Co. v. Collins, 2 Duvall 114. And in Missouri, Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Brown v. Railroad Co., 50 Mo. 461, where it is held, Wagner, J., delivering the opinion, that railroad companies are under the same obligations with other persons to use their own property so as not to hurt or injure others; and though a person be injured while unlawfully on their track, or contribute to the injury by his own carelessness or negligence, yet, if the injury might have been avoided by the use of ordinary care and caution by the railroad company, they are liable for damages for the injury.

So, in Alabama, Foster v. Molly, 38 Ala. (N. S.) 76; and, also, in Maryland, Railroad Co. v. The State, 36 Md. 366, where it is held, Bowie, J., delivering the opinion, that, “ where a person walking on a railroad track is run over and killed by an engine belonging to the railroad company, the company is responsible in damages for such killing, though the deceased was guilty of a want of ordinary care and prudence in so walking on the track, provided it appear that the accident would not have occurred if the agents of the railroad company had used, in running the engine which occasioned the killing, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonable lookout.” And in that case the negligence of the plaintiff was held to be the remote cause, while that of the defendant was the proximate and immediate cause of the injury. 1 Redf. on Railways (5th ed.) 571, 572.

We think that these doctrines arc reasonable and just, and that they ought to be applied in cases like the present. The instructions in this case were in accordance with the principles of these decisions, and we hold that they were right. The intestate had a right to be in the highway at the crossing: he had the same right to pass there that the railroad train had. He may have been negligent, so that, if he had been injured by a defect in the highway merely, he could not have recovered; but still, if the agents of the defendants saw him- thus on the track and knew his situation, or by the use of ordinary care might have known it, they had no right to run upon him and kill him, when, by the use of ordinary care on their part, they might have prevented or avoided it.

And though in general there can be no recovery against towns for injuries received from defects in highways, where the plaintiff’s negligence contributed to the injury, yet, when the injury is occasioned by the negligent acts of a voluntary agent, present and acting at the time, it would be otherwise ; and where both parties are present and act as voluntary agents, as in this case, the question of proximate and remote cause may properly be considered, as both parties are held responsible for the use of ordinary care; and the defendants’ negligence may be so great in his direct acts towards the plaintiff that he may be liable for the same, though the plaintiff’s fault may have contributed remotely to the injury. Shear. & Redf. on Neg., secs. 31, 36, 412, and seq. The first two instructions are sustained.

The third instruction is not seriously objected to, as we understand it, and is clearly correct under the provisions of the statute upon which this proceeding is founded. The fourth instruction is also correct, for, although of late the distinction between the degrees of negligence has been attempted to be obliterated, and the existence of any such distinction has been denied, and gross negligence has been held to be the same thing as negligence, with the addition of a vituperative epithet—Perkins v. Central Railroad Co., 24 N. Y. 196, 206; Wells v. Central Railroad Co., 24 N. Y. 181; Smith v. Central Railroad Co., 24 N. Y. 222, 241; New World v. King, 16 How. 474; Wilson v. Brett, 11 Mees. & Wels. 113—yet we have no particular objection to the distinctions made by the civil law as well as the common law; and so long as different degrees of care are required in different positions, we see no objection to giving names to them, and also to their corresponding degrees -of negligence. Slight negligence is the want of great care and diligence; ordinary negligence is the want of ordinary care; and gross negligence is the want of even slight care. 2 Kent’s Com. 560, and seq.; Angell on Carriers 10, 11; Story on Bail., secs. 17, 18; Shear. & Redf. on Neg., secs. 16, 17, 18. But the distinction is, after all, mainly verbal.

We think the fifth instruction was proper. In determining what is ordinary care as well as what is gross negligence, the time, the place, the positions and duties of the parties, the kind of business in which they are engaged, and all the circumstances of each particular case, are to be considered by the jury. Shear. & Redf. on Neg., secs. 7, 22, 23, 24, 30. “ But what is due or ordinary care must depend upon the circumstances of each case. Thus, what would be ordinary care at the crossing of a highway, may be gross negligence at that of a railroad ; and upon this question the jury are to judge.” 1 Hill, on Torts 142 ; 1 Redf. on Railways 567.

The motion to set aside the verdict as against the evidence, or as unsupported by the evidence, must be overruled. The train was due at the crossing fifteen minutes before nine o’clock, which fact was probably known to the deceased. He started from his house at about nine o’clock, harnessed his horses, and went upon the walk half a mile to the crossing, which, in all, might take him from 15 to 30 minutes ; and when he arrived at the crossing, instead of its being half past nine, as he might have supposed, it seems it was only a few minutes past the regular car time. His clock was evidently some half an hour to an hour too fast. So far as appears, it was left for the jury to find whether or not he knew this fact, or, if he did not, whether he was in any fault for not knowing it. Under these circumstances it was clearly for the jury to say whether, in attempting to cross the track at this public crossing, under the circumstances, he was guilty of negligence, or was in the exercise of ordinary care.

And even if the jury found that he was not in the exercise of ordinary care, yet they may have found that the agents of the road, who were running the train, could easily have seen him upon the track long before they reached the crossing, and that they did see him, or in the exercise of ordinary care ought to have seen him, and that, notwithstanding, they were so grossly negligent that they failed to sound the whistle or ring the bell, but rushed on at full speed, when it may have been their duty not only to have sounded the whistle and rung the bell, but even to have slackened their speed dr to have stopped altogether before coming to the crossing; and if the jury so found, and that this reckless conduct of the agents of the road was the proximate cause of the death, as it would seem clearly to be under such circumstances, the defendants would be liable, even though the deceased were in fault, if that fault only remotely contributed to the accident. It thus appears that there was competent evidence to be submitted to the jury upon all the points specified in the motion, except as to the unfitness of the servants or agents of the company, which claim had been abandoned on the trial.

The motion in arrest of judgment for alleged insufficiency of the indictment is next to be considered :

1. That it is not alleged in the bill that the deceased was in the exercise of due and reasonable care at the time of the accident. If this were in substance what it is in form, a criminal proceeding, it would ordinarily be a sufficient answer to this objection to say that the statute has no such requirement, and that this indictment charges the offence in the words of the statute. But as this is to be considered and treated as a civil action, then it follows that no such allegation is necessary, for it is well settled, in this State, that no such allegation is necessary in a civil proceeding. In Smith v. The Eastern Railroad, 35 N. H. 356, it was held that, in case for an injury resulting from the alleged negligence of the defendants, it is not necessary to allege that the plaintiff was without fault; and in Corey v. Bath, 35 N. H. 530, 548, it was held that the declaration need not allege that the plaintiff was in the exercise of due care. May v. Princeton, 11 Met. 442, 444.

2. The second ground of the motion is that the indictment is double, because it is charged therein that the life of said Woodbury was lost (1) by the negligence and carelessness of the defendants; (2) by the unfitness of the servants and agents of the defendants ; (3) by the carelessness of the servants and agents aforesaid, and because these charges are joined in the same counts in the bill. This position is not well taken. Duplicity consists in the charging of two separate and distinct offences, with distinct punishments attached to each. State v. Nelson, 8 N. H. 163; State v. Fowler, 28 N. H. 184; 1 Wharton’s Am. Cr. Law (6th ed.) 382; State v. Snyder, 50 N. H. 150. But there is no such joining of distinct and different offences in this case. There is but one offence provided for in the same section of the same act. This corporation may be guilty of this one offence in different ways, — by their own negligence or carelessness, by the unfitness of their servants or agents, or by the gross negligence or carelessness of their servants or agents; but in whichsoever way it may be committed, it is the same offence.

This precise case is stated and illustrated in 2 Wliart. Am. Cr. Law (6th ed.), sec. 1466, as follows : “A crime, which may be committed by the agency of several means, is well described if charged to be by the agency of all. Thus, an indictment which charges the prisoner with falsely making, forging, and counterfeiting ; of causing and procuring to be falsely made, forged, and counterfeited; and of willingly acting and assisting in the said false- making, forging, and counterfeiting, is a good indictment, though all these charges are contained in a single count; if the words of the statute are strictly pursued ; and if there is a general verdict of guilty, judgment ought not to be arrested on the ground that the offences are distinct. So, also, the description of a bank note as false, forged, and counterfeited, is not repugnant. But where two distinct offences, requiring different punishments, are alleged in the same count, * * * and the defendant is convicted, the judgment will be arrested.” Here the one offence, created by this statute, may be committed “ by the agency of several means,” and maybe properly charged to be by “the agency of all;” and that is precisely what is done in this indictment.

3. The next ground stated is, that the first count in said indictment is defective; and we think this position is well taken. Upon a careful examination of this count, it will be seen that it was probably intended to charge the offence as committed by the negligence and carelessness of the proprietors of the road, and this idea is carried out sufficiently, perhaps, through the count, until near its close, where we find this as the closing sentence of the count, — “And so the jurors aforesaid * * * do say that the life of the said Benjamin Woodbury * * * was lost as aforesaid, by reason of the negligence and carelessness of their servants aforesaid.” We think the count would have been well enough had it charged that the death was caused by the negligence and carelessness of the defendants as proprietors of the road, at the close as it did at the commencement of the count; but when it closes by charging the death as being caused by the negligence and carelessness of the servants, that is not enough, because it is not what the statute requires. But when there is one good count in an indictment and others bad, and there is a general verdict, judgment will not be arrested. 1 Chitty’s Crim. Law 249; 3 Whart. Am. Crim. Law (6th ed.), sec. 3047. And although this is in substance a civil proceeding, yet in form it must be criminal, the statute providing that the proceeding shall be by indictment; and we think that the form of the indictment, as well as of the verdict, must be governed by the rules applicable to indictments in other cases, the rules of criminal law.

But were this otherwise, and were the form of this indictment to be governed by the rules applicable to declarations in civil causes, we think it would make no difference. For, though the general rule may be that, in a civil suit where there are several counts, on each of which damages are claimed, with a general verdict for the plaintiff, if one count is bad the judgment must be arrested on motion, because the court have no means of apportioning the damages; yet where in a civil suit there are several counts, but all describing one and the same cause of action, but each, setting it forth in a different way, and where damages are sought to be recovered only on some one count, and these facts appear in the case, and all the evidence was applicable to the good count, then, though all the other counts be bad, and there is a general verdict, judgment will not be arrested;—Glines v. Smith, 48 N. H. 259, 270, 271, where this matter is fully considered. Here, there is but one charge, but one claim, and that clearly appears in the indictment. That one charge or claim is set forth in three separate counts; and the general verdict finds the defendants guilty upon all the counts. If the proof shows them guilty upon all, and any one of them is good, that is enough. The objection that this count is double has been sufficiently answered in considering the second ground of the motion in arrest.

4. The same may be said of the charge that the second and third counts are double, under the fourth ground of the motion in arrest. The next charge under that head is, that said second and third counts charge that the life was lost by the carelessness of said servants, and not by their gross carelessness. The provision of the statute is, that the life be lost (1) “ by reason of the negligence or carelessness of the proprietors; (2) by the unfitness, or (3) by the gross negligence or (4) carelessness of its servants or agents.” The second and third counts, as will be seen upon examination, do charge that said Wood-bury lost his life (1) “ by reason of the negligence and carelessness of the proprietors * * * and (2) by the unfitness and (3) gross negligence, and (4) by the carelessness of its servants and agents.”

The defendants claim that the statute must be construed to mean “by the gross negligence, or the gross carelessness ” of its servants, &c., and that to charge that the life was lost by the carelessness of these servants is not sufficient; and if the statute is to be understood as the defendants claim, then the indictment does not charge in that particular the offence intended by the statute. Taking the statute as it stands, without looking further, we should be disposed to give it the construction which the defendants claim, and to hold that the indictment, in that respect, was insufficient. But we have had the curiosity to look at the history of this statute in this State, and find that our first statute on this subject was passed in 1850 (ch. 953, sec. 7), and was in substance like our present law, but the wording was a little different, as follows: If any life shall be lost, &c., “ by the negligence or carelessness of the proprietor or proprietors * * * or by the unfitness or gross negligence, or by the carelessness of their servants or agents.”

In the Compiled Statutes, ch. 150, sec. 66, the same language precisely, and the same punctuation (putting the comma after the word “ negligence ”), are used, as follows, — “by the unfitness or gross negligence, or by the carelessness of their servants,” &c.; and, by the report of the commissioners to revise our statutes, it appears that they did not intend to make any change in the sense or the construction of this statute, but that all the alteration they intended was merely verbal. See Commissioners’ Report, ch. 265, sec. 15.

We may see, perhaps, what construction was given to the law of 1850, by looking at State v. Gilmore, 24 N. H. 461, which was the first indictment, so far as we know, which was found under the new law. This indictment, in the first count, alleges that, on December 3, 1850, “ the servants of the proprietors of the railroad carelessly drove their engine and cars against the wagon and person of one William Coult, and carelessly gave him one mortal wound, of which he died. And so the said Coult, by the carelessness of the said * * * servants of said defendants, lost his life.” The second count alleges that Coult lost his life by the negligence of the proprietors. In the arguments, Bellows, Fowler, and Minot, for the defendants, claimed, among other things, that the term gross, in the statute, applied as well to carelessness as to negligence, upon the ground that, the two terms being similar in their general import, it could not be supposed that it was intended to qualify the one and not the other, — admitting that the grammatical construction of the language was opposed to their view, but claiming that the court should not be embarrassed by that circumstance, but should look at the general policy of the law, and construe the language accordingly; while Clark, for the plaintiff, claimed that, as the words of the statute are “ by the gross negligence, or by the carelessness,” not the gross carelessness, it could not be necessary to allege that the carelessness was gross.

Perley, J., in delivering the opinion, says, — “ There are particular grounds of objection to the case of the government, on which we should be obliged to decide for the defendants without determining the main question raised on the construction of” the statute.” He then states that the case does not show that G. & F. were the agents or servants of the defendants; also, that the indictment does not show that Coult left widow, child, or other relative to take the fine under the statute; that these defects would be fatal; but the main question was on the construction of the statute, &c. No allusion is made in the opinion to this particular subject. If the indictment had been deemed to be insufficient in this respect, would it not have been mentioned as another reason why the decision must be for the defendants?

This indictment is in the precise words of the law of 1850 and of the Compiled Statutes, and we think must be held sufficient under that statute; and as we find there was no intention to change the meaning of the law in the revision, and as the reading of the present statute may well enough bear the same construction, we think it should be so construed, — and that this ground of objection to the indictment must fail, whether or not we may be able to find the true reason why the legislature of 1850 made a distinction between negligence and carelessness in a servant of the railroad; but that they did make the distinction is too plain for argument. Language could not make it plainer. The unfitness of the servants of the road, or their gross negligence, or their carelessness, constitute three distinct and separate means by which the death might be caused, and either would alike make' the company liable.

This may not be entirely without reason, when we consider the derivation of the word careless, and its original meaning. Composed of the word care, and the termination less, which, according to Webster, is a privative word, denoting destitution; as witZess, destitute of wit; childZess, without children; fatlierZess, spotZess, faitliZess, pcnuiless, sinZess. OareZm, destitute of care, having no care, not even the slightest degree, which would be equivalent to the grossest negligence; and if carelessness means “the quality or state of being without care” (Webster’s Diet.), then our legislators were not very wide of the mark in making gross negligence and carelessness synonymous. Indeed, if Rolfe, B., in Wilson v. Brett, 11 Mees. & Wels. 113, before cited, had been speaking of carelessness instead of negligence, perhaps he might well have said that gross carelessness was the same thing as carelessness, with the addition of a vituperative epithet. Grill v. Collier Co., L. R. 1 C. P. 600, 612. In this case the distinction is mainly, if not purely, verbal.

But the court assumed in this case that the statute required, and also that the indictment charged, both gross negligence and gross carelessness upon the servants of the road, and, under the instructions, the jury must have found both, so that the defendants have no cause to complain that the instructions were not favorable enough upon that side; and as we hold the indictment sufficient under the statute, the defendants cannot except that the ruling of the court was too favorable, if such was the fact.

It is also objected -that these counts charge that the life was lost by the combined negligence and carelessness of the corporation, unfitness of its servants, gross negligence of its servants, and carelessness of its servants, which is not the offence made indictable by statute. But we can see no grounds for this position. If here was one act of negligence on the part of the proprietors, and one act of gross negligence by one servant, and another act of carelessness by another servant, and the life was lost by reason of these three acts combined, why should not the company be held responsible just as much as though the death had been caused by either of these acts alone ? But we are not without authority upon this point. Various means used in committing the offence may be properly stated and charged in the indictment, and in the same count, without duplicity. 1 Whart. Am. Cr. Law, sec. 393.

So an indictment that charges one of the defendants with using instruments, and the same defendant, with others, with administering drugs, to produce a miscarriage, and that by both of said means together the woman died, is good, and the offence will be made out by proof that both of these means together caused the death, or that either of them alone produced it, either is sufficient to warrant a conviction. Com. v. Brown, 14 Gray 419, 429, 431.

Upon the fifth, sixth, and seventh grounds stated as reasons for the motion in arrest of judgment, it is only necessary to add to what has already been said, that, in an indictment under a similar statute in Massachusetts, it has been held that it was not necessary to state the nature of the acts, or the manner of such negligence. Com. v. B. & W. Railroad Corp., 11 Cush. 512. The same has been substantially held in this State in Corey v. Bath, 35 N. H. 530, 541, 542, 547, and in Perkins v. Railroad, 44 N. H. 225.

The eighth ground of objection stated as the foundation of this motion is, that it does not appear by the verdict that the deceased left any widow, child, or heirs. The indictment sufficiently alleges these facts, and after verdict it will be presumed that the necessary proof was furnished. No exception is taken that proper instructions were not given to the jury upon that subject; and with proper instructions a verdict could not have been returned for the State without such evidence.

In overruling the exceptions in this case, and in denying the motion to set aside the verdict as against evidence or as unsupported by evidence, and the motion in arrest of judgment, upon the several grounds stated, we are not unmindful of the numerous decisions in New York and in many other States, several of which are cited in argument by the defendants’ counsel, where some test has been adopted and held to be conclusive, as matter of law, that the plaintiff is guilty of contributory negligence, and if so, that he cannot recover, however remote that negligence may have been, and however negligent, careless, or reckless the agents of the road may have been.

But we doubt the propriety, the justice, and the legality of adopting such tests. We think, in all cases where there is any conflict in the testimony, and, ordinarily, even where there is not, that all the facts and circumstances of the case should be submitted to the jury with proper instructions as to what constitutes ordinary negligence or the want of ordinary care, and what constitutes gross negligence, and with instructions that an act or an omission which under some circumstances would not be evidence of any degree of negligence, might, under others, be evidence of the want of ordinary care, and under still different circumstances might be evidence of gross negligence; that ordinary care is not only such care as people in general would exercise, but such as they would exercise under the circumstances of each particular case; and hence the injustice of assuming a test which is made to apply to all possible persons, in all possible places, at all possible times, and under all possible circumstances. When we can hold, as matter of law, that it is the duty of the blind to see, and of the deaf to hear, and of the dumb to speak, then, and not till then, as it seems to me, can there be a proper application of some of the tests which are attempted to be applied in some of the cases as absolutely certain, conclusive, and incontrovertible tests of contributory negligence.

But, suppose that persons are negligent, and that it were proper and right to hold, as matter of law, in a given case, that a person were grossly negligent, yet, if that negligence is not the proximate cause of his injury, shall that excuse the officers and agents of the railroad for the neglect of all care and all caution, and justify them in carelessly and recklessly driving on their engines of death at full speed, without any check or abatement, and without giving any warning or any notice at crossings and places where they have every reason to apprehend accident and danger, and thus sacrifice human life negligently, needlessly, wantonly, without fear and without responsibility ? Such cannot be the law. Judgment on the verdict.