Wright, J.[53] In this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plaintiff that he was charged by her husband with a message to her to the effect that her husband was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home. All this was false. The effect of the statement on the plaintiff was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy.
In addition to these matters of substance there is a small claim for 1s. 10½d. for the cost of railway fares of persons sent by the plaintiff to Leytonstone in obedience to the pretended message. As to this 1s. 10½d. expended in railway fares on the faith of the defendant’s statement, I think the case is clearly within the decision in Pasley v. Freeman, (1789) 3 T. R. 51. The statement was a misrepresentation intended to be acted on to the damage of the plaintiff.
The real question is as to the 100l., the greatest part of which is given as compensation for the female plaintiff’s illness and suffering. It was argued for her that she is entitled to recover this as being damage caused by fraud, and therefore within the doctrine established by Pasley v. Freeman, (1789) 3 T. R. 51, and Langridge v. Levy, (1837) 2 M. & W. 519. I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.
It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable. Apart from authority, I should give the same answer and on the same ground as the last question, and say that it was not too remote. Whether, as the majority of the House of Lords thought in Lynch v. Knight, (1861) 9. H. L. C. 577, at pp. 592, 596, the criterion is in asking what would be the natural effect on reasonable persons, or whether, as Lord Wensleydale thought (9 H. L. C. 587, at p. 600), the possible infirmities of human nature ought to be recognized, it seems to me that the connection between the cause and the effect is sufficiently close and complete. It is, however, necessary to consider two authorities which are supposed to have laid down that illness through mental shock is a too remote or unnatural consequence of an injuria to entitle the plaintiff to recover in a case where damage is a necessary part of the cause of action. One is the case of Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222, where it was held in the Privy Council that illness which was the effect of shock caused by fright was too remote a consequence of a negligent act which caused the fright, there being no physical harm immediately caused. That decision was treated in the Court of Appeal in Pugh v. London, Brighton and South Coast Ry. Co., [1896] 2 Q. B. 248, as open to question. It is inconsistent with a decision in the Court of Appeal in Ireland: Bell v. Great Northern Ry. Co. of Ireland, (1890) 26 L. R. Ir. 428, where the Irish Exchequer Division refused to follow it; and it has been disapproved in the Supreme Court of New York; see Pollock on Torts, 4th ed. p. 47 (n). Nor is it altogether in point, for there was not in that case any element of wilful wrong; nor perhaps was the illness so direct and natural a consequence of the defendant’s conduct as in this case. On these grounds it seems to me that the case of Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222, is not an authority on which this case ought to be decided.
A more serious difficulty is the decision in Allsop v. Allsop, 5 H. & N. 534, which was approved by the House of Lords in Lynch v. Knight, 9 H. L. C. 577. In that case it was held by Pollock, C. B., Martin, Bramwell, and Wilde, BB., that illness caused by a slanderous imputation of unchastity in the case of a married woman did not constitute such special damage as would sustain an action for such a slander. That case, however, appears to have been decided on the ground that in all the innumerable actions for slander there were no precedents for alleging illness to be sufficient special damage, and that it would be of evil consequence to treat it as sufficient, because such a rule might lead to an infinity of trumpery or groundless actions. Neither of these reasons is applicable to the present case. Nor could such a rule be adopted as of general application without results which it would be difficult or impossible to defend. Suppose that a person is in a precarious and dangerous condition, and another person tells him that his physician has said that he has but a day to live. In such a case, if death ensued from the shock caused by the false statement, I cannot doubt that at this day the case might be one of criminal homicide, or that if a serious aggravation of illness ensued damages might be recovered. I think, however, that it must be admitted that the present case is without precedent. Some English decisions—such as Jones v. Boyce, (1816) 1 Stark. 493; Wilkins v. Day, (1883) 12 Q. B. D. 110; Harris v. Mobbs, (1878) 3 Ex. D. 268—are cited in Beven on Negligence as inconsistent with the decision in Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222. But I think that those cases are to be explained on a different ground, namely, that the damage which immediately resulted from the act of the passenger or of the horse was really the result not of that act, but of a fright which rendered that act involuntary, and which therefore ought to be regarded as itself the direct and immediate cause of the damage. In Smith v. Johnson & Co. (unreported), decided in January last, Bruce, J., and I held that where a man was killed in the sight of the plaintiff by the defendant’s negligence, and the plaintiff became ill, not from the shock from fear of harm to himself, but from the shock of seeing another person killed, this harm was too remote a consequence of the negligence. But that was a very different case from the present.
There must be judgment for the plaintiff for 100l. 1s. 10½.
Appeal against the award of the judge of the county court of Pontefract sitting as arbitrator under the Workmen’s Compensation Act, 1906.
The question raised by this appeal was whether a nervous shock received by a workman in the course of his employment was an “accident” which entitled him to compensation under the Workmen’s Compensation Act, 1906. The facts as found by the county court judge were as follows:—
In October, 1909, the applicant,—a collier, forty-six years of age, who had been engaged in coal mining all his life, and for twenty-seven years had been working at the face of the coal in the pit belonging to the respondents,—while working as usual, heard a shout for help from the next working place. He ran around his loose end at once and found a fellow collier lying full length on the ground, having been knocked down by a fallen timber prop and some coal; he was bleeding all over his head and from his ears and eyes. The applicant picked him up in his arms and, with assistance, carried him away; he was not dead at the time, but died in a quarter of an hour. The effect on the applicant was such that he sustained a nervous shock, which incapacitated him from working at the coal face; he returned to his work on the Saturday, and at the order of the under-manager on the Monday following, but on neither occasion was he able to do work, and after describing to the under-manager and the Government inspector on the Monday the details of what happened on the Saturday he left the pit; he then consulted his doctor and has been under his care since. In November he tried again to work, and went to his old place, but though he stayed the shift he was unable to work, and his brother, who was his mate, did it for him. In January, 1910, he asked the under-manager for a by-work job, but the under-manager would not give him one, and he had not worked since.
Proceedings for compensation having been taken, the county court judge found as a fact that there was a genuine incapacity to work which was due to the nervous shock which he sustained in October, 1909, when it clearly was his duty to his employers to go to the assistance of the injured collier who shouted for help from the next working place, and that his doing so arose both “in course of” and “out of” his employment. The learned county court judge accordingly awarded the applicant compensation at 19s. a week to the date of the award, and 10s. a week till further order.
The respondents appealed.[55]
Farwell, L. J. I am of the same opinion. It is rightly conceded that it was part of the man’s duty to go to the assistance of his fellow workman. Therefore there is no question that the events arose “out of and in the course of the employment.” The learned county court judge has found as a fact that there was a genuine incapacity to work, which was due to the nervous shock which the applicant sustained in October last. In my opinion nervous shock due to accident which causes personal incapacity to work is as much “personal injury by accident” as a broken leg, for the reasons already expressed by this court in the case of Eaves v. Blaenclydach Colliery Co., [1909] 2 K. B. 73. In truth I find it difficult, when the medical evidence is that as a fact a workman is suffering from a known complaint arising from nervous shock, to draw any distinction between that case and the case of a broken limb. I see no distinction for this purpose between the case of the guard who is not in fact physically injured by an accident to his train, but who, after assisting to carry away the wounded and dead, breaks down from nervous shock, and the case of the guard who in similar circumstances stumbles over some of the débris and breaks his leg.[56] The difficulty is to prove the facts so as to avoid the risk of malingering, but when the facts have been proved, the injury causing incapacity to work arises from the accident in the one case just as much as in the other. I am, therefore, of opinion that the judgment of the learned county court judge must be affirmed.
Kennedy, L. J. I am of the same opinion. It is beyond question that the incapacity of the applicant has arisen in the course of and out of the employment; and when you have a finding of fact by the learned county court judge that there has been a nervous shock, and that that nervous shock has produced a genuine condition of neurasthenia, I think myself the recent authorities show that this judgment ought to be supported. One knows perfectly well that neurasthenia, although there may be no outward sign if you merely look at the person, is treated, and successfully treated in some cases at any rate, by a treatment of the body. Directly you have that which requires treatment of the body, it means that a portion of that body (visible or invisible does not matter) is in a state of ill-health, and, if the condition of neurasthenia produces incapacity to work which has been brought about by something in the nature of an accident which arose “out of and in the course of the employment,” you have a case of “personal injury by accident” which is within the Act.
The declaration alleged, in substance, that plaintiff was the owner of two cottages; that defendant owned land near to the said cottages; that defendant had a rick or stack of hay near the boundary of his land which was liable and likely to ignite, and thereby was dangerous to the plaintiff’s cottages; that the defendant, well knowing the premises, wrongfully and negligently kept and continued the rick in the aforesaid dangerous condition; that the rick did ignite, and that plaintiff’s cottages were burned by fire communicated from the rick or from certain buildings of defendant’s which were set on fire by flames from the rick.
Defendant pleaded the general issue; and also several special pleas, denying negligence.
At the trial it appeared that the rick in question had been made by the defendant near the boundary of his own premises; that the hay was in such a state when put together, as to give rise to discussions on the probability of fire; that though there were conflicting opinions on the subject, yet during a period of five weeks the defendant was repeatedly warned of his peril; that his stock was insured; and that upon one occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to the defendant’s barn and stables, and thence to the plaintiff’s cottages, which were entirely destroyed.
Patteson, J., before whom the cause was tried, told the jury that the question for them to consider was, whether the fire had been occasioned by gross negligence on the part of the defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.
A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained, on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of a gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion, but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence. The action under such circumstances was of the first impression.[57]
Talfourd, Serjt., and Whately, showed cause.
The pleas having expressly raised issues on the negligence of the defendant, the learned judge could not do otherwise than leave that question to the jury. The declaration alleges that the defendant knew of the dangerous state of the rick, and yet negligently and improperly allowed it to stand. The plea of not guilty, therefore, puts in issue the scienter, it being of the substance of the issue: Thomas v. Morgan, 2 Cr. M. & R. 496. And the action, though new in specie, is founded on a principle fully established, that a man must so use his own property as not to injure that of others. On the same circuit a defendant was sued a few years ago for burning weeds so near the extremity of his own land as to set fire to and destroy his neighbors’ wood. The plaintiff recovered damages, and no motion was made to set aside the verdict. Then, there were no means of estimating the defendant’s negligence, except by taking as a standard the conduct of a man of ordinary prudence: that has been the rule always laid down, and there is no other that would not be open to much greater uncertainties.
R. V. Richards, in support of the rule.
First, there was no duty imposed on the defendant, as there is on carriers or other bailees, under an implied contract, to be responsible for the exercise of any given degree of prudence: the defendant had a right to place his stack as near to the extremity of his own land as he pleased, Wyatt v. Harrison, 3 B. & Adol. 871: under that right, and subject to no contract, he can only be called on to act bona fide to the best of his judgment; if he has done that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men. The measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence. In Crook v. Jadis, 5 B. & Adol. 910, Patteson, J., says, “I never could understand what is meant by parties taking a bill under circumstances which ought to have excited the suspicion of a prudent man;” and Taunton, J., “I cannot estimate the degree of care which a prudent man should take.”...
Tindal, C. J. I agree that this is a case primæ impressionis; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this is not a case of contract, such as a bailment or the like, where the bailee is responsible in consequence of the remuneration he is to receive: but there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the defendant is liable for the consequence of his own neglect: and though the defendant did not himself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbor, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not foresee. Turberville v. Stamp, 1 Salk. 13. But put the case of a chemist making experiments with ingredients, singly innocent, but when combined liable to ignite; if he leaves them together, and injury is thereby occasioned to the property of his neighbor, can any one doubt that an action on the case would lie?
It is contended, however, that the learned judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence that the jury might have thought the latter the rule by which they were to decide; that such a rule would be too uncertain to act upon; and that the question ought to have been whether the defendant had acted honestly and bona fide to the best of his own judgment. That, however, would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various: and though it has been urged that the care which a prudent man would take, is not an intelligible proposition as a rule of law, yet such has always been the rule adopted in cases of bailment, as laid down in Coggs v. Bernard, 2 Ld. Raym. 909. Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz., commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender; because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him; but if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that, and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.” The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.
Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule, which requires in all cases a regard to caution such as a man of ordinary prudence would observe.[58] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.
[Concurring opinions were delivered by Park, and Vaughan, JJ. Gaselee, J. concurred in the result.]
This was an appeal by the defendants against the decision of the judge of the County Court of Birmingham. The case was tried before a jury, and a verdict found for the plaintiff for the amount claimed by the particulars. The particulars of the claim alleged, that the plaintiff sought to recover for damage sustained by the plaintiff by reason of the negligence of the defendants in not keeping their water-pipes and the apparatus connected therewith in proper order.
The case stated that the defendants were incorporated by stat. 7 Geo. IV., c. cix., for the purpose of supplying Birmingham with water.
By the 84th section of their Act it was enacted, that the company should, upon the laying down of any main-pipe or other pipe in any street, fix, at the time of laying down such pipe, a proper and sufficient fire-plug in each such street, and should deliver the key or keys of such fire-plug to the persons having the care of the engine-house in or near to the said street, and cause another key to be hung up in the watch-house in or near to the said street. By sec. 87, pipes were to be eighteen inches beneath the surface of the soil. By the 89th section, the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given by the Act. The main-pipe opposite the house of the plaintiff was more than eighteen inches below the surface. The fire-plug was constructed according to the best known system, and the materials of it were at the time of the accident sound and in good order. The apparatus connected with the fire-plug was as follows:—
The lower part of a wooden plug was inserted in a neck, which projected above and formed part of the main. About the neck there was a bed of brickwork puddled in with clay. The plug was also enclosed in a cast iron tube, which was placed upon and fixed to the brickwork. The tube was closed at the top by a movable iron stopper having a hole in it for the insertion of the key, by which the plug was loosened when occasion required it.
The plug did not fit tight to the tube, but room was left for it to move freely. This space was necessarily left for the purpose of easily and quickly removing the wooden plug to allow the water to flow. On the removal of the wooden plug the pressure upon the main forced the water up through the neck and cap to the surface of the street.
On the 24th of February, a large quantity of water, escaping from the neck of the main, forced its way through the ground into the plaintiff’s house. The apparatus had been laid down twenty-five years, and had worked well during that time. The defendants’ engineer stated, that the water might have forced its way through the brickwork round the neck of the main, and that the accident might have been caused by the frost, inasmuch as the expansion of the water would force up the plug out of the neck, and the stopper being incrusted with ice would not suffer the plug to ascend. One of the severest frosts on record set in on the 15th of January, 1855, and continued until after the accident in question. An incrustation of ice and snow had gathered about the stopper, and in the street all round, and also for some inches between the stopper and the plug. The ice had been observed on the surface of the ground for a considerable time before the accident. A short time after the accident, the company’s turncock removed the ice from the stopper, took out the plug, and replaced it.
The judge left it to the jury to consider whether the company had used proper care to prevent the accident. He thought, that, if the defendants had taken out the ice adhering to the plug, the accident would not have happened, and left it to the jury to say whether they ought to have removed the ice. The jury found a verdict for the plaintiff for the sum claimed.
Field, for the appellant. There was no negligence on the part of the defendants. The plug was pushed out by the frost, which was one of the severest ever known.
The Court then called on
Kennedy, for the respondent. The company omitted to take sufficient precautions. The fire-plug is placed in the neck of the main. In ordinary cases the plug rises and lets the water out; but here there was an incrustation round the stopper, which prevented the escape of the water. This might have been easily removed. It will be found, from the result of the cases, that the company were bound to take every possible precaution. The fact of premises being fired by sparks from an engine on a railway is evidence of negligence: Piggott v. Eastern Counties Railway Company, 3 C. B. 229 (E. C. L. R. vol. 54); Aldridge v. Great Western Railway Company, 3 M. & Gr. 515 (Id. 42), 4 Scott, N. R. 156, 1 Dowl. N. S. 247, S. C. [Martin, B. I held, in a case tried at Liverpool, in 1853, that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences.[59] I invited counsel to tender a bill of exceptions to that ruling. Water is a different matter.] It is the defendants’ water, therefore they are bound to see that no injury is done to any one by it. An action has been held to lie for so negligently constructing a hayrick at the extremity of the owner’s land, that, by reason of its spontaneous ignition, his neighbor’s house was burnt down: Vaughan v. Menlove, 3 Bing. N. C. 468 (E. C. L. R. vol. 32). [Bramwell, B. In that case discussions had arisen as to the probability of fire, and the defendant was repeatedly warned of the danger, and said he would chance it.] He referred to Wells v. Ody, 1 M. & W. 452. [Alderson, B. Is it an accident which any man could have foreseen?] A scientific man could have foreseen it. If no eye could have seen what was going on, the case might have been different; but the company’s servants could have seen, and actually did see, the ice which had collected about the plug. It is of the last importance, that these plugs, which are fire-plugs, should be kept by the company in working order. The accident cannot be considered as having been caused by the act of God: Siordet v. Hall, 4 Bing. 607 (Id. 13).
Alderson, B. I am of opinion that there was no evidence to be left to the jury. The case turns upon the question, whether the facts proved show that the defendants were guilty of negligence. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.[60] The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. A reasonable man would act with reference to the average circumstances of the temperature in ordinary years. The defendants had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence, because their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident for which the defendants cannot be held liable.
Martin, B. I think that the direction was not correct, and that there was no evidence for the jury. The defendants are not responsible, unless there was negligence on their part. To hold otherwise would be to make the company responsible as insurers.
Bramwell, B. The Act of Parliament directed the defendants to lay down pipes, with plugs in them, as safety-valves, to prevent the bursting of the pipes. The plugs were properly made, and of proper material; but there was an accumulation of ice about this plug, which prevented it from acting properly. The defendants were not bound to keep the plugs clear. It appears to me that the plaintiff was under quite as much obligation to remove the ice and snow which had accumulated, as the defendants. However that may be, it appears to me that it would be monstrous to hold the defendants responsible because they did not foresee and prevent an accident, the cause of which was so obscure, that it was not discovered until many months after the accident had happened.
Dodge, J.... Plaintiff assigns as error the definition of the due care which plaintiff was bound to exercise to avert the charge of contributory negligence, viz.:—
“The plaintiff cannot recover in this case unless you find that he was in no manner guilty of any want of ordinary care, or such care as persons of ordinary care ordinarily use, which contributed to his said injuries.”[62]
That this was an incorrect and misleading definition of “ordinary care” has been declared so often by this court as to make further discussion unnecessary. The rule has been repeatedly laid down that due care is to be tested by the surrounding circumstances, and that no definition is complete or correct which does not embody that element.[63] Ordinary care is the care ordinarily exercised by the great mass of mankind, or its type, the ordinarily prudent person, under the same or similar circumstances, and the omission of the last qualification, “under the same or similar circumstances,” or “under like circumstances,” is error. Boelter v. Ross L. Co., 103 Wis. 324, 330; Dehsoy v. Milwaukee E. R. & L. Co., 110 Wis. 412; Warden v. Miller, ante, p. 67. The necessity of the omitted qualification to a correct definition of due care is especially obvious under the circumstances of this case. What would be the care of an ordinarily prudent person, standing in safety upon a stationary platform, or even standing upon the perfect and level footboard of a moving switch engine, would not be the care to be expected of one attempting to perform the services of a yard man upon a bent, declining, and defective footboard such as here presented. The attention of the jury was not called by this instruction to a very important element which they must consider in order to decide whether the plaintiff was or was not guilty of contributory negligence, and the instruction to them on the subject was therefore misleading and erroneous.
Weaver, J.[64] The plaintiff claims to have been injured upon one of the public walks in the city of Glenwood, and that such injury was occasioned by reason of the negligence of the city in the maintenance of the walk at the place of the accident, and without fault on his own part contributing thereto. From verdict and judgment in his favor for $665, the city appeals. In this court the appellant makes no claim that the city was not negligent, but a reversal is sought on other grounds.
It was shown without dispute that plaintiff had been blind for many years, and this fact is the basis of the criticism upon the charge given to the jury. In the third paragraph of the charge, the court, defining negligence, said: “(3) Negligence is defined to be the want of ordinary care; that is, such care as an ordinary prudent person would exercise under like circumstances. There is no precise definition of ordinary care, but it may be said that it is such care as an ordinarily prudent person would exercise under like circumstances, and should be proportioned to the danger and peril reasonably to be apprehended from a lack of proper prudence. This rule applies alike to both parties to this action, and may be used in determining whether either was negligent.” In the eighth paragraph, referring to the plaintiff’s duty to exercise care for his own safety, the following language is used: “(8) It must also appear from the evidence that the plaintiff did not in any way contribute to the happening of the accident in question by any negligence on his part; that is, by his own want of ordinary care. The plaintiff, on his part, was under obligation to use ordinary care to prevent injury when passing over any sidewalk; and if he failed so to do, and his failure in any way contributed to the happening of the accident in question, then he cannot recover herein. The evidence shows without dispute that he was blind, and this fact should be considered by you in determining what ordinary care on his part would require when he was attempting to pass over one of the sidewalks of this city.” Counsel for appellant do not deny that the rules here laid down would be a correct statement of the law of negligence and contributory negligence as applied to the ordinary case of sidewalk accident, but it is urged that the conceded fact of plaintiff’s blindness made it the duty of the court to say to the jury that a blind person who attempts to use the public street “must exercise a higher degree of care and caution than a person ordinarily would be expected or required to use had he full possession of his sense of sight.” We cannot give this proposition our assent. It is too well established to require argument or citation of authority that the care which the city is bound to exercise in the maintenance of its streets is ordinary and reasonable care, the care which ordinarily marks the conduct of a person of average prudence and foresight. So, too, it is equally well settled that the care which a person using the street is bound to exercise on his own part to discover danger and avoid accident and injury is of precisely the same character, the ordinary and reasonable care of a person of average prudence and foresight. The streets are for the use of the general public without discrimination; for the weak, the lame, the halt and the blind, as well as for those possessing perfect health, strength, and vision. The law casts upon one no greater burden of care than upon the other. It is true, however, that in determining what is reasonable or ordinary care we must look to the circumstances and surroundings of each particular case. As said by us in Graham v. Oxford, 105 Iowa, 708: “There is no fixed rule for determining what is ordinary care applicable to all cases, but each case must be determined according to its own facts.” In the case before us the plaintiff’s blindness is simply one of the facts which the jury must give consideration, in finding whether he did or did not act with the care which a reasonably prudent man would ordinarily exercise, when burdened by such infirmity. In other words, the measures which a traveler upon the street must employ for his own protection depend upon the nature and extent of the peril to which he knows, or in the exercise of reasonable prudence ought to know, he is exposed. The greater and more imminent the risk, the more he is required to look out for and guard against injury to himself; but the care thus exercised is neither more nor less than ordinary care—the care which men of ordinary prudence and experience may reasonably be expected to exercise under like circumstances. See cases cited in 21 Am. & Eng. Enc. Law, (2d ed.) 465, note 1. In the case at bar the plaintiff was rightfully upon the street, and if he was injured by reason of the negligence of the city, and without contributory negligence on his part, he was entitled to a verdict. In determining whether he did exercise due care it was proper for the jury, as we have already indicated, to consider his blindness, and in view of that condition, and all the surrounding facts and circumstances, find whether he exercised ordinary care and prudence. If he did, he was not guilty of contributory negligence.
This view of the law seems to be fairly embodied in the instructions to which exception is taken. If the appellant believed, as it now argues, that the charge should have been more specific, and dwelt with greater emphasis upon the fact of plaintiff’s blindness as an element for the consideration of the jury in finding whether he exercised reasonable care, it had the right to ask an instruction framed to meet its views in that respect. No such request was made, and the omission of the court to so amplify the charge on its own motion was not error.[65]
Two Actions of Tort for personal injuries received by the plaintiff’s intestate caused by her falling when stepping across street railway rails which were piled by the defendant street railway company on the highway next to the curbing, and were allowed by the street railway company and the defendant town to remain there, and which, it was alleged, constituted an obstruction of the highway.[66]
The accident happened in the daytime. The plaintiff’s intestate was near-sighted, and could not recognize a friend at a distance of more than ten or twelve feet.
At the trial in the Superior Court, defendants requested the following instruction:—
“If the plaintiff’s intestate had defective eyesight, she should take greater care in walking the street than one of good eyesight; and if she failed to use this greater degree of care, the verdict must be for the defendant.”
This request was refused, subject to exception.
In the charge to the jury, the presiding judge stated: “The plaintiff contends and has got to show by a fair preponderance of the evidence that Mrs. Keith was injured, and that she was injured while she was using ... a degree of care that a reasonably prudent and careful person, acting prudently and carefully at the time, would have exercised and should have exercised in your judgment under all the circumstances then surrounding Mrs. Keith. That means not only external circumstances, that means not only the way in which the rails were placed, the location of the car, the necessity of action on her part, but it means also with reference to her personal peculiarities as they were shown to exist upon the stand. For instance, the conduct of a perfectly sound and healthy person may be properly regarded as one thing, when the same conduct on the part of a diseased or infirm person might be regarded as something very different.
“What might be in your judgment perfectly reasonable and proper and careful on the part of a sound person might be regarded fairly by you as improper and careless on the part of an infirm person.
“So, in this case, while I cannot instruct you as a matter of law that Mrs. Keith, if you find her to be near-sighted, was bound to use a higher degree of care than a person not near-sighted, I have got to leave it to you as a matter of fact whether a near-sighted person would not, in order to be careful, have to exercise a higher degree of care than a person not near-sighted. In other words, I have got to leave it to you to determine whether or not a near-sighted person is using due care if he or she under the particular circumstances acts exactly as a person who was not near-sighted would have done. In other words, it is a matter of fact for you to determine whether Mrs. Keith was called on to do differently from a person in full possession of eyesight rather than as a matter of law for me to direct you in regard to it.”
The jury found for the plaintiff in both cases.
Rugg, J.... The defendant asked the court to rule that if the person injured “had defective eyesight, she should take greater care in walking the street than one of good sight, and if she failed to use this greater degree of care the verdict must be for the defendant.” This request properly was refused, for the reason that it directed a verdict upon a single phase of the testimony, which was not necessarily decisive. In this respect the prayer differs vitally from the one which in Winn v. Lowell, 1 Allen, 177, this court held should have been given.[67] We see no reason for modifying the decision in Winn v. Lowell, nor is it inconsistent with subsequent cases. The standard of care established by the law is what the ordinarily prudent and cautious person would do to protect himself under given conditions. There is no higher or different standard for one who is aged, feeble, blind, halt, deaf or otherwise impaired in capacity, than for one in perfect physical condition. It has frequently, in recent as well as earlier cases, been said, in referring to one under some impediment, that greater caution or increased circumspection may be required in view of these adverse conditions. See, for example, Winn v. Lowell, 1 Allen, 177; Hall v. West End Street Railway, 168 Mass. 461; Hilborn v. Boston & Northern Street Railway, 191 Mass. 14; Vecchioni v. New York Central & Hudson River Railroad, 191 Mass. 9; Hawes v. Boston Elevated Railway, 192 Mass. 324; Hamilton v. Boston & Northern Street Railway, 193 Mass. 324. These expressions mean nothing more than that a person so afflicted must put forth a greater degree of effort than one not acting under any disabilities, in order to attain that standard of care which the law has established for everybody. When looked at from one standpoint, it is incorrect to say that a blind person must exercise a higher degree of care than one whose sight is perfect, but in another aspect, a blind person may be obliged to take precautions, practice vigilance and sharpen other senses, unnecessary for one of clear vision, in order to attain that degree of care which the law requires. It may depend in some slight degree upon how the description of duty begins, where the emphasis may fall at a given moment, but when the whole proposition is stated, the rights of the parties are as fully protected in the one way as in the other. It is perhaps more logical to say that the plaintiff is bound to use ordinary care, and that in passing upon what ordinary care demands, due consideration should be given to blindness or other infirmities. This was the course pursued by the Superior Court. Neff v. Wellesley, 148 Mass. 487. Smith v. Wildes, 143 Mass. 556. But it is also correct to say that in the exercise of common prudence one of defective eyesight must usually as matter of general knowledge take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions than the same person with good eyesight, in order to reach the standard established by the law for all persons alike, whether they be weak or strong, sound or deficient.