
    The Pendleton Street Railroad Company v. Rebecca Stallmann, Adm’x, etc.
    ' In an action for negligence wherein ordinary care is the degree of diligence-involved in the issue, and contributory negligence is set up as a defense, it is error to charge the jury that if the plaintiff, by his own fault, has contributed to his injury,'the defendant must then show that he was without fault himself; and that no man can be shown without, fault, unless he has done all in his power to avoid the injury.
    If the instructions to the jury on a question of law, involved in the issue, he manifestly erroneous, the judgment should he reversed, unless it. clearly appears, from the whole record, that the party against whom it. was committed could not have been prejudiced thereby.
    
      Although an erroneous instruction given to the jury be afterward qualified by using apt words to express the true rule on the subject, yet if, upon the whole charge, it he uncertain what the rule given, or intended to be given, in fact, was, the judgment should be reversed, for the reason that the jury may have been misled thereby.
    As a general rule, where a new trial is granted on a motion to set aside a verdict and grant a new trial, and a new trial and judgment are afterward had in the case, a reviewing court, upon a proceeding in error to reverse the last judgment, will not review the action of the court below in granting a new trial.
    Error to the Superior Court of Cincinnati.
    The original action was brought in the Superior Court of Cincinnati, by Rebecca Stallmann, administratrix of Henry Stallmann, uuder the act of March 25,1851 (S. & C. 1139), against the Pendleton Street Railroad Company, to recover damages from the defendant for causing the death of her intestate by .wrongful act and neglect.
    The defendant made answer as follows:
    1. That it was not guilty, by its agents, servants, or otherwise, at the time of the alleged injury to the plaintiff’s intestate, of any such neglect, unskillfulness, or carelessness as the plaintiff in her petition has asserted.
    2. That the injury suffered by the plaintiff’s intestate, as in her petition alleged, was caused by the carelessness of said intestate, and not by any fault of the agents or servants of this defendant, or any defect in its cars, machinery, or equipments.
    The cause was submitted to a jury at special term, and a verdict was rendered for the plaintiff* for $1,500.
    During the progress of the trial, the defendant excepted to the charge of the court as given to the jury, and to its refusal to charge as the defendant requested.
    The defendant then moved the court to set aside the verdict and grant a new trial for the following reasons:
    1. Because the court refused to instruct the jury in matters of law, pertinent to the issue, as requested by defendant's counsel.
    
      2. Because the court erred in its instructions to the jury m matters of law.
    3. Because the verdict is contrary to law.
    4. Because the verdict is not sustained by sufficient evidence.
    5. Because the damages are excessive.
    This motion was overruled, to which the defendant excepted and filed his bill of exceptions, containing all the testimony, the charge of the court as given, and the special requests of the defendant, which the court refused to give, together with the exceptions taken by the defendant during the progress of the trial.
    And thereupon judgment was rendered on the verdict in favor of plaintiff.
    The following is the charge as given, and as afterward qualified by the court, and the exceptions taken thereto:
    “Before the passage of the present law, there would have been no right of action on the part of the administratrix of this deceased man. The object of the statute was to supply, so far as pecuniary compensation could, the place of the father and the husband. As the support of the family had been taken away, it was intended by this law to substitute in lieu of the parent such an amount of money, limited in a certain manner, as the jury might think fit to give.
    “The question then before you in the first place is, whether the plaintiff has a right to recover, and this depends upon the facts of the case applied to the law as I shall lay it down.
    
      “It is the duty of every railroad company which traverses our streets, to provide careful, competent, and skillful drivers, and those thus employed are hound to use all their skill and all proper prudence and care in the management of the horses committed to their charge. They have but one track upon which the ears are to be drawn. They are aware that upon a public thoroughfare, upon which every inhabitant of the city and every person has a right to pass and repass without molestation, taking care that they do not obstruct the passage of the railway car, and yet claiming for themselves, as they have a right to do, the same benefits that the proprietors of the railway cars claim, consistent with their several occupations. The city unquestionably has the right to permit’ these street railroads to be established upon the public highway, but that right is subordinate to the more extended right of all to travel upon the same highway. In all these-matters there must be mutual accommodation. One must not prevent the free passage of the other. There must be accommodation between them.
    “The rule then is — when you have understood the circumstances under which the passage of the streets was permitted — the rule of law is, that those who have the care of the railway cars, whenever they meet with an obstruction which prevents their safe passage, ought to stop, not to pre^s on and endeavor to pass it, because that would be injustice to-the company, as well as to those whom they by possibility may injure by attempting to go forward when wisdom would require them to be stationary. The car might be-broken, the horses might be injured by collision, and those who are pressing on the same line of travel might receive-injury also.
    “There is propriety, then, in regarding it as an absolute-rule, that whenever a driver of a street railroad has good reason to believe, and the circumstances existing would necessarily lead him to believe, that if he proceeds he will injure the safety of others, it is his duty to stop. He may be detained for a moment or two, but in the meanwhile he-will avoid injury to the vehicle that he is driving, and he will also avoid any collision with the party he may bo in the same line of travel with. The degree of care and skill that necessarily must be called into exercise at the time,, depends upon the circumstances of the ease, taking into consideration everything that the party sees to exist around him. If, in a position of that nature, he does not conclude-to stop, but proceeds, and the consequence of that procedure is to inflict an injury upon the person of another, or upon the property of another, when it might have been avoided by remaining stationary, tbe company unquestionably are responsible in whose service he is. But if, at the time such an injury has occurred, he has done all that prudence and caution would require, taking into account all that surrounded him at that time and all that he saw, if he •did the best under the circumstances that he could do, or would be required to do, the company can not be regarded as responsible, for they do not insure against impossibilities. But we will proceed further. This is one view of the case. The other view of the case is this: If a driver of a street railroad is passing along at the usual gait with his horses which is supposed to be upon a moderate trot, and he should ■encounter a line of wagons, four or more, parallel with his railway, the one before the other, and he is enabled to pass one without difficulty, yet in attempting to pass the other a collision occurs, how are you to regard it? You will stop and inquire how it happened ? Whose fault was it ? Why did it occur? The conflict of testimony is very great, and to arrive at a correct conclusion is not without difficulty. .It is your duty to reconcile these differences. It is the province of the court to lay down the rule by which you may reconcile them, but not to give an opinion upon the weight •of the testimony, or what the evidence tends to prove.
    “You must be satisfied that the death of this deceased occurred by neglect, or want of reasonable care, or omission of duty on the part of this driver. If you are satisfied of that, then there is a right to recover. If you are not, the verdict must be for the defendant.
    “In arriving at this conclusion you will, in the first place, look, not to the number of witnesses, as a general rule, for sometimes confusion is produced by the difference of statement. You will look to the testimony of those witnesses who swear the most intelligently, who seem to be the least under the influence of prej adice, and who had the best opportunity for observation. It may be said, it is admitted on .all sides that the witnesses who have been examined have no interest in the controversy; they are not related to either ■of the parties, and they are supposed to intend to state the facts as they actually occurred.
    
      “But still you have met in this ease what we meet in almost every case, and what our experience in life proves that we must always continue to meet with — the difficulty that no two men see alike, think alike, or, in every respect, act alike — and yet they may all be perfectly reliable men. Hence, you must look to the evidence of those who had the best opportunity to know what did take place, aud who,, you are satisfied, on the present occasion, have testified most candidly, most clearly, and with the least prejudice.
    “It is immaterial, in the judgment of the court, whether this unfortunate man came to his death from being struck by the end of the ear, or from being crushed between the car and the wagon, or whether he was brought into such a position in consequence of the car comiug so near to him that he attempted to escape by putting himself into a position where he was run over by his own wheel. If he came to his death by being struck, then the inference is clear; if by being crushed, the same inference follows. If he came to his death,' not by being crushed or by being struck, but in cousequence of being so straitened in the position which, he had occupied, that in endeavoring to obtain a position' that he could occupy, he thereby exposed himself to injury from any source, and that was the consequence of the car-coming too near, then if the fault was in the driver of the car in producing that nearness, the company is responsible» This is the rule as laid down by the Supreme Court of the United States. It is one that we have very frequently discussed before, and it is a sound one. I read from the case of Stokes v. Saltonstall:
    
    “ In an action against the owner of a stage coach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting of the coach, the owner is not liable unless. the injury of which the plaintiff complains was occasioned by the negligence, or want of proper skill or care, in the driver of the carriage in which he and his wife were passengers; and the facts that the carriage was upset and the plaintiff’s wife injured,, are prima facie evidence that there was carelessness or negligence,, or want of skill, on the part of the driver, and throws upon the 
      
      defendant the burden of proving that the accident was not occasioned by the driver’s fault.
    
    
      “ ‘It being admitti d that the carriage was upset and the plaintiff’s wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill and with the utmost prudence and caution, and if the disaster in question was occasioned by the least negligence or want of skill or prudence on his part, then the defendant is liable in the action.
    
    
      “ ‘If there was no want of proper skill, or care or caution, on the part of the driver of a stage coach, and the stage was upset by the act of the plaintiff or his wife in rashly or improperly springing from it, then the defendant is not liable to an action; but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have in. creased the peril, or even caused the stage to upset, and although they may find also that the plaintiff and his wife would probably have sustained little or no injury 'if they had remained in the stage.’
    
    “This is but the result of the rule, that where an individual has been brought into peril by the act of another, and that act is the consequence of want of care or prudence on the part of that other, then the law does not look much to the order of the man’s going who was thus placed in jeopardy. In his confusion he might pass under the wheel, he might pass before it, or he might become entangled by the harness, and if the act by which he was originally placed in that position, when he must necessarily seek some mode of escape, was induced by the party against whom the action is brought, then the consequences are precisely the same as if the party had been struck by the carriage originally, or as if he had been crushed between that carriage and his own wagon.
    “ That is the rule.
    “But this depends all upon the first position assumed, that there is a legal liability on the part of these defendants for the act of their driver.
    “Bring yourselves to the question, how did this man come to his death? Whose fault was it? Take the testimony of the driver of the wagon behind, of the driver of that wagon which preceded him, and of that which was first in the line. Put them together, make due allowance for the positions which they occupied — the last driver looking forward, the driver of the second wagon in the lead looking backward, and the driver still beyond him casting his eyes behind; the driver of the car himself, who has testified, in the meanwhile looking on. Connect with this the testimony of the others who saw the body passing through the narrow space between the car and the wagon until finally the unfortunate man was placed upon the sidewalk, and from there taken to the house where he died. Compare these witnesses together; look at the matter as if you were there yourselves. Take your position, for instance, on the platform; what could you have seen there ? Take your position with the witness who testified as being in the rear wagon, in fact, every one who has testified here. Compare them all together, and ascertain from a comparison of the whole, making proper allowance for the want of memory, or if you have seen any want of reliance on the part of any of the witnesses, make allowance for that, and when you have come to a conclusion, what will it be?
    “ Will it be that the driver, by not stopping, produced the accident, or will it be one of those accidents which no man could avoid, having done the best he could under the circumstances, or will it be that the unfortunate man who has died was in fault himself?
    
      “ Gentlemen, the rule is well stated by all the counsel, that if there is fault upon both sides, there can not, as a general rule, be a recovery; but if there is upon one side, and yet, the 
      
      •other parly could have avoided the accident, it is his duty to do so. It would be imprudent, it would be the height of almost madness, for a man to pass across the street when he saw a wagon at full speed a short distance from him. He tbould doubtless be in fault, but because that wagoner who has charge of the horses and controlled them by the reins, sees this man thus imprudently placing himself in the way of danger, he has no right to run over him if he could avoid it. If there is room to the right hand or to the left, and he has the power to do so, he must pursue that course. So you see, the rule that the party who complains must show himself without fault, is subject to another rule, that the party who is charged with having committed the injury must show that he is without fault himself. And no man can be shown without fault, unless he has done all in his poioer to avoid the injury.
    
    “ There used to be a very singular rule of steamboat navigation among the pilots some forty years ago. It was the proper place, said they, for a descending boat to take the • channel — it was the proper place for an ascending boat to take the shore. And they went so far that if they saw a boat out of her place they did not see fit to avoid her, as they thought it was right if a collision ensued. The vessel ought to.have kept to her own side.
    “But that was not the law, and it was not justice. If you see a man doing a wrong act to another, you would have the right to prevent it. If you see a man doing a wrong to himself, you must take care not to hasten it on — if you .have the opportunity of avoiding it, it is your duty to do so.
    “ Here you will look at all the circumstances of the case. Was it in the power of this driver, having passed the first wagon, to have avoided the second one f
    
    “ This is the whole case. If you find for the plaintiff, the question of damage will be altogether with yourselves. You can take into consideration the same elements you would if the party was alive, except the law allows nothing for consolation, as it is termed, or for the loss of those .domestic pleasures which grow out of the marital relation. They die with the party, and all the law allows is mere compensation for the support of the wife and her daughter— not exceeding a certain sum.”
    To which instruction the defendant, by its counsel, immediately, and before the jury had withdrawn, excepted:
    1. In respect generally to the degree of care and diligence demanded of the drivers of the defendant’s cars.
    Whereupon the court charged the jury again: That the' care required was a reasonable care, under all the circumstances-
    2. As to the definition of the right which the defendant acquired by the grant of the city of Cincinnati, to that portion of the streets on which its railroad tracks have been established for the purpose of running ears, as against the drivers and proprietors of wagons and other vehicles.
    8. As to the definition of the circumstances when it. would become the duty of the driver of oue of the defendant’s cars to stop. And as to the rule of law stated in that regard.
    4. As to the liability of the defendant in the case stated,, of a driver proceeding with his car when, if he bad not done so, an injury to a third person would have been avoided.
    5. As to all this paragraph: “ It is immaterial, in the-judgment of the court, whether this unfortunate man came to his death from being struck by the end of the car, or from being crushed between the car and the wagon, or whether he was brought into such a position, in consequence of the car coming so near to him, that he attempted to-escape by putting himself into a position where he wras run over by his own wheel. If he came to his death by being struck, then the inference is clear. If by being crushed, the same inference follows. If he came to his death, not by being crushed or by being struck, but in consequeuce of being so straitened in the position which he had occupied, that in endeavoring to obtain a position that he could occupy, he thereby exposed himself to injury from any source, and that-was the consequence of the car coming too: near, then if the fault was in the driver of the car in producing the nearness, the company is responsible.”
    
      “This is the rule as laid down by the Supreme Court of the United States. It is one we have very frequently discussed before, and it is a sound one.”
    6. As to the application of the language read from this case of Stokes v. Saltonstall, and for the reason that the plaintiff in that case had been a passenger in the stage coach of the defendant.
    Whereupon the court instructed the jury that the language of said case was quoted, not, to determine the degree of care required, but to show that it was immaterial whether the negligence of the driver, if such there was, was the direct or indirect cause of the injury.
    
    7. As to this part of the instruction, and what preceded it until the word “ gentlemen ” inclusively. “ So, you see, the rule that the party who complains must show himself without fault is subject to another ride, that the party who is charged with having committed the injury must show that he is without fault himself. And no man can be shown without fault unless he has done all in his power to avoid the injury.” And to what followed on the same subject, the defendant’s counsel claiming that in the eases stated or supposed, the act of the party sued, or of his servant, must have been wanton, or his conduct grossly negligent, in order to enable the other party to recover.
    8. In propounding this question to the jury in the connection in which it was propounded : “ Was it in the power of this driver, having passed the first wagon, to have avoided the second one?”
    Whereupon the court added, with reasonable care.
    
    And the defendant, by its counsel, thereupon moved the court to instruct the jury :
    1. That in order to enable the plaintiff to recover in this form of action, the testimony must be such as that Henry Stallmann, if he had not died, could have maintained an action, upon his own behalf, against the defendant, for the injury alleged to have been sustained by him.
    Which instruction the court gave as requested.
    2. That in order to enable the plaintiff to recover- in the action, the jurors must be satisfied, upon the evidence, not only that the defendant, or some one of its agents or servants, was guilty of some act of negligence, or some default or omission of duty, in respect of the car by means of which plaintiff’ claims that Henry Stallmann was wounded, but also that said Henry did not in any wise, by his own negligence, or want of ordinary caution in the circumstances, contribute to the accident.
    Which instruction the court refused to give as requested, but gave with this addition:
    “ Unless it appears, from the evidence in the cause, that the driver of the car could, with reasonable care, have avoided the accident, notwithstanding any supposed fault of the plaiutiflPs intestate.” To which refusal, and to which instruction as modified, the defendant, by its counsel, excepted.
    3. That inasmuch as a street railroad car is necessarily •confined t its track, whereas the drivers of other vehicles have choice of the whole width of the street in which to proceed, the presumption of the law, in case of a collision between such a car and another vehicle, is, that the driver of such other vehicle was at fault, unless it appears that the car was off the track, or was proceeding at an unusual or improper rate of speed; which presumption it behooves the driver of such other vehicle (or in case of his or her death, the personal representative suing as plaintiff) to overcome by affirmative and substantial testimony. And the mere fact that the driver of such other vehicle was killed or injured by means of such collision as aforesaid, does not authorize any recovery of damages against the proprietor, corporate or natural, of the street railroad car.
    Which instruction the court refused as asked, but gave as altered by the substitution of the words “proper legal’’ for “substantial,” and by adding at the end of these words “unless it appears, from the testimony in the cause, the driver of the rail-car could have avoided the act by tha exercise of reasonable care.” To which refusal, and to ■which modifications severally, as given, the defendant, by its counsel, excepted.
    4. That even if the jury should be of opinion that the-driver of a- street railroad car omitted to call upon the driver of another vehicle proceeding upon or very near the-railroad track, to make way for the car to pass safely, or did not call so loudly as to be heard, nevertheless, if the driver of such other vehicle was in fact aware of the-approach of the railroad car, or might have ascertained that fact by the use of ordinary caution, and had time and space in which to avoid collision, the proprietor of the-railroad ear will not be liable for an injury sustained by the driver of such other vehicle remaining upon the track or so near thereto as to cause “ collision.”
    Which instruction the court refused as asked, but gave the same as modified by striking out the word “ even” in the first line, and by adding at the end of all these words, “unless the driver could, by the exercise of reasonable-care, have avoided the accident, notwithstanding any supposed fault of the plaintiff.” To which refusal, and to-which instruction as modified, the defendant by its counsel excepted.
    5. That the right of the defendant to the use of its railroad track on East Pearl street, was a right to run its cars-upon that track at a convenient rate of speed, and, therefore, that Henry Stallmann was under obligation, not only to keep out of the way of the'cars passing and repassing ■ at brief intervals, but to avoid even delaying them, or any of them. And if he (Stallmann) chose to drive his wagon, upon the track, or so near it as that he could not readily avoid collision or other cause of injury, collateral or consequential, he was at fault, and if he had survived, could not have maintained any action against the defendant.
    Which instruction the court refused as asked, but gave the same as modified by inserting the word “ unnecessarily ” between the words “even” and “delaying,” and by adding,.. at the end of all these words, “if the conduct of Stallmann, produced or contributed to the accident, unless the driver' of the car could have avoided it by using ordinary care.” To which refusal, and to which modifications, severally, as given, the defendant by its counsel excepted.
    6. That the city council of Cincinnati has no authority, by ordinance or otherwise, to prescribe the degree of care to be observed by the driver of a street railroad car, in respect of other persons driving or walking upon the railroad track, or near it, so as in any wise to affect the rights or the liabilities, in a civil action, of the proprietors of such car. For which reason, the sixth regulation or specification of section fourteenth of the ordinance prescribing the terms and conditions of street passenger railroads within the city of Cincinnati, has no application to the issue joined by the parties in this cause.
    Which instruction the court refused, and to such refusal the defendant by its counsel excepted.
    7. That the driver of the defendant’s car, in this instance, was not under obligation to use any higher degree of care than a person of ordinary prudence usually takes in the management of his own business, aud without anticipation of accident, or of fault or error on the part of other persons.
    Which instruction the court refused as asked, but gave the same as modified by the addition of these words, “ but what is ordinary prudence must depend upon the nature ■of his employment, and the mode in which it should be prosecuted.” To which refusal and to which addition, as made, the defendant by its counsel excepted.
    8. That unless the driver had reasonable and probable •cause to suppose before hand, that Henry Stall man n would fail to withdraw from the railroad track a sufficient distance to enable the car to pass safely, or that, while the car was passing, the mules attached to Stallmann’s wagon would ■attempt to run away, or become unmanageable, he (the driver) was not under obligation to stop his car.
    Which instruction the court refused as asked, but gave, as modified by the addition of these words: “ But the driver must, in every case of doubt, or where there is ground to ■believe a danger is imminent, take the safest course to avoid 
      
      the accident” To which refusal, and to which modification as given, the defendant by its counsel excepted.
    9. That the question whether the driver of the defendant’s car should have stopped or proceeded, in case of an apprehended collision, was a matter of reasonable discretion to be determined by him (the driver) on the spot, and according to his best skill and judgment, having in view, before all other considerations, the safety of the passengers within his car.
    "Which instruction the court refused as asked, but gave with the modification, that while the driver must have in view the safety of the passengers within his car, he must have in view, at the same time, the safety of persons driving other vehicles, and of persons walking or standing near. To which refusal, and to which modification as given, the defendant by its counsel expected.
    10. That the issue whether the defendant’s servants were negligent or careful, on the occasion of the alleged injury to Henry Stallmann, is not to be decided by conjecture, but there must be some specific and determinate fact proven, in that regard, before the plaintiff is entitled to a verdict.
    "Which instruction the court refused as asked, but gave thus modified: “It is a question to be determined by all the circumstances existing at the time the accident occurred.” To which refusal, and to which modification as given, the defendant by its counsel excepted:
    Subsequently, the Superior Court in general term, upon proceedings in error, affirmed the judgment rendered at the special term; qnd this action is prosecuted by the defendant in the original action, to reverse the’judgment of affirmance rendered at general term, and also the judgment at the special term, for the reasons set forth in its motion to set aside the verdict, and graut a new trial.
    
      Gr. IS. Pugh, for plaintiff in error:
    1. The question, whether or no the car or horses of the railroad company, or the mules or wagon of Stallmann, struck him, was taken from the jury by the misdirection of the court..
    2. The doctrine of Stokes v. Saltonstall, 13 Peters, 181, is-peculiar to the case of a passenger suing a carrier upon a breach of contract. The rule deduced from it, and given to the jury by the judge of the Superior Court, is not the law of any case. Shire's case, 18 Ohio St. 255.
    3. A passenger in the car, and a passer in the street, do not stand in the same relation to the carrier. Brand v. Troy and Schenectady R. R. Co., 8 Barb. 378; Dyke v. Erie R. W. Co., 45 N. Y. 113; Winterbottom v. Wright, 10 M. & Welsb. 109.
    4. The ordinance of the city council of Cincinnati, prescribing the degree of care to be used by a car driver toward a passer, can have no controlling application as to any liability in a civil action. Chambers v. Ohio Life Insurance and Trust Co., 1 Dis. 327; Van Dyke v. Cincinnati, 1 Dis. 533; Straus v. Eagle Insurance Co., 5 Ohio St. 59.
    5. The railway company had a right to move its car along its track'at the usual rate of speed for street horse-cars, subject only to occasional necessary impediments. Where no impediment prevents the turning of a wagon from the railway track, it is unlawful to continue the wagon on the track, so as to delay the car. Commonwealth v. Temple, 14 Gray, 69; Avenue Railway Co. v. Cumminsville, 14 Ohio St. 523; Suydam v. Grand St. and Newtown R. R. Co., 41 Barb. 375; Jatho v. Green and Coates Sts. R. R. Co., 4 West. Law Gaz. 410.
    6. Toward a passer the railway company was bound only to use that degree of care that a person of ordinary prudence usually takes in his own business, and without anticipating accident, or fault, or error on the part of others.. Case of Mrs. Terry, 8 Ohio St. 579.
    7. The instructions asked for by the plaintiff* in error, and either refused or improperly modified by the court, were proper.
    
      Mrs. Terry’s case, 8 Ohio St. 579; Mrs. Shire’s case, 18 Ohio St. 261; Havens v. Erie R. W. Co., 41 N. Y. 296; 
      Baxter v. Troy and Boston R. R. Co., Ib. 502; Bulger v. Albany R. R. Co., 42 N. Y. 459; Wilcox v. Rome, W. and Og. R. R. Co., 39 N. Y. 358; Steves v. Oswego and Syracuse R. R. Co., 18 Ib. 422; Welles, J., Law Reports, 2 Com. Pleas 10, Smith v. Great East. R. R. Co.; Singleton v. East. Co.’s R. W. Co., 7 Com. Bench, R. N. S. 287; Crafter v. Metro. R. W. Co., Law Rep., 1 Com. Pleas, 300; Toomey v. London, B. and S. C. R. W. Co., 3 Com. Bench, R. N. S. 146; Cotton v. Wood, 8 Ib. 568; Hammack v. White, 11 Ib. 588; Chicago and R. I. R. R. Co. v. McKean, 40 Ill. 218.
    8. It is error to annex to a charge properly asked, a material qualification not required or authorized by the evidence. Walker v. Stetson, 14 Ohio St. 89, 90; Bain v. Wilson, 10 Ib. 14.
    9. Eor the rule governing a court when declining to give a charge in the words requested, and using language of its own. See Peck, C. J., Truman v. Love, 14 Ohio St. 154.
    10. The modification of the charge asked for as made, was inappropriate and illegal. Rathbun v. Payne, 19 Wend. 399; Nicholson v. Erie R. W. Co., 41 N. Y. 525; Penn. R. R. Co. v. Zebe, 35 Penn. St. 318.
    11. If Kerwhacker v. C. C. and C. R. R. Co., 3 Ohio St. 172, contains a word to the contrary, it must be taken as overruled by C. 3. and D. R. R. Co. v. Waterson, 4 Ohio St. 424.
    12. The first point in the syllabus in Mrs. Terry’s case, 8 Ohio St. 570, states the law governing this case.
    
      Stallo Kitiredge, for defendant in error:
    1. To determine, whether, or not, the court below erred in its charge, this court will look to the whole charge, in its relations to the issues of fact, as presented by the testimony set out in the record.
    2. The court expressly stated to the jury that the quotation from Stokes v. Saltonstall was read to show that it was immaterial whether the negligence of the driver (if such there were), was the direct or indirect cause of the injury, and not to show the degree of care required.
    
      8. This court is bound to examine the whole record. Three verdicts for the plaintiff' have been given — the first for $3,000, the second for $5,000. • The first was set aside because of misconduct by a juror; the second, we claim, was improperly set aside.
   McIlvaine, J.

In disposing of' this case, we will confine ourselves chiefly to questions arising upon the charge of the court as given to the jury at the time of the last trial, at special term.

. As to the facts of the case, we intend to express no opinion, further than to show that the testimony before the jury was such as to require the court to instruct the jury as to the law concerning contributory negligence, as well as to the degree of care required of the defendant below in the management of its business, for the want of which the law will hold it responsible in damages in cases where injury to others (than passengers) results therefrom.

The defendant below, at the time of the occurrence which resulted in the death of the plaintiff’s intestate, was engaged in the management of a street railroad in one of the streets of Cincinnati and in running cars thereon, drawn by horses, for the transportation of passengers. Henry Stallmann was not a passenger thereon, but was a teamster engaged in driving his wagon and team of mules along the street upon which the defendant’s railroad was located. There were three other teams in company with Stallmann, all loaded with pork, two before and one behind him. These several teams had occupied the track of the railroad before the approach of the defendant’s ear, at which time they left the track, on the same side; and the ear had passed the hindmost team before it had arrived in close proximity to Stallmann and his team. The car and the several teams were traveling in the same direction. And at the time and place where the car overtook Stallmann and his team (at which time he was walking and driving at the side of his wagon next to the ear), there was barely, and possibly not at all, sufficient space between the car and wagon for him to stand or walk in. By some means or other, while in this position, Stallmann was prostrated upon the street, and received the injuries of which he, shortly afterward, died. Both the driver of the car and Stallmann, before the injury was inflicted, knew the situation and condition of each other and of their respective vehicles.

Whether.the injury which caused the death of Stallmann was the direct result of a stroke by the car causing him to fall, or by being run over by his own wagon, after accidentally falling, was matter in dispute at the trial.

We purposely omit stating the tendency of the proof in more detail, as the above outline is sufficient to a fair understanding of the main questions considered in this case.

The rules of law which govern in actions for negligence in cases like the present, have been fully and clearly settled by former decisions of this court. Not only as to what constitutes culpable negligence on the part of the defendant, but also as to what amounts to contributory negligence on the part of the injured party, the general effect of such contributory negligence, and the circumstances under which the injured party is, in law, relieved from its consequences. So far as it is possible to abstract the principles of law from the facts which constitute actionable or contributory negligence, and to define and apply them, we have little to do, except to refer to those decisions.

“In an action against a railroad company to recover damages caused to third persons by the train while in motion, no recovery can be had unless the employes were, at the time,.guilty of negligence or want of due care; nor if the party injured was also guilty of negligence contributing directly to the injury. The degree of care required in such cases of the employes, and also of the party injured, is merely ordinary care and prudence, the perils to be encountered, and all other circumstances under which the injury was inflicted and received, being considered.” C. C. and C. R. R. Co. v. Terry, 8 Ohio St. 570. And Peck, J., in delivering the opinion of the court, on page 581, defines ordinary care to be “ that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and the objects to be accomplished.”

In Kerwhacker v. C. C. and C. R. R. Co., 3 Ohio St. 195, the following is laid down : That the general rule is, that where the parties are mutually in fault, or, in other words, where negligence of the same nature in each party has cooperated to produce the injury, the party sustaining the loss is without remedy, but that this rule is subject to the following qualifications:

“1. The injured party, although in the fault to some extent, at the same time may, notwithstanding this, be entitled to reparation in damages for an injury which could not have been avoided by ordinary care on his part.
“ 2. Where the negligence of the defendant, in a suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time, the action is maintainable.
“ 3. Where the 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, he may be entitled to redress.
“ 4. And where the plaintiff, in the ordinary exercise of his own rights, allows his property to be in an exposed or 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.”

It will be observed that a case wherein the fault of the defendant is malicious, or his neglect is so wanton and gross as to be evidence of voluntary and willful injury on his part, and the fault of the injured party is merely the want of ordinary care, does not fall within the scope of the general rulej the faults not being of the.same nature. And I will add that, in my opinion, the qualifications attached to the rule, in that ease, should be regarded as illustrations of, rather than exceptions to, the rule; but however that may be, we find in Timmons v. Central Ohio R. R. Co., 6 Ohio St. 108, that the rule as there laid down, and the qualifications attached, were approvingly cited and referred to in the opinion of the court.

Assuming, therefore, that the foregoing is the settled law of this state in cases of this kind, how stand the instructions of the court in the charge under consideration?

Passing for the present so much of the charge as relates to the respective rights and duties of the defendant and the general public, in relation to the use of the street, and to each other, the court instructed the jury as follows:

“ Gentlemen, the rule is well stated by all the counsel, that if there is fault upon both sides, there can not, as a general rule, be a recovery; but if there is upon one side, and yet the other party could have avoided the accident, it is his duty to do so. It would be imprudent, it would be the height of almost madness, for a man to pass across the street when he saw a wagon at full speed a short distance from him. He would doubtless be in fault, but because that wagoner, who has charge of the horses and controlled them by the reins, sees this man thus imprudently placing himself in the way of danger, he has no right to run over him if he could avoid it. If there is room to the right hand or to the left, and he has the power to do so, he must pursue that course. So, you see, the rule that the party who complains must show himself without fault is subject to another rule, that the party who is charged with having committed the injury must show that he is without fault himself. And no man can be shown without fault unless he has done all in his power to avoid the injury. ****:(:**■*
Here you will look at all the circumstances of the case. Was it in the power of this driver, having passed the first wagon, to have avoided the second one ?
“ This is the whole case. If you find for the plaintiff, the question of damage will be altogether with yourselves. You can take into consideration the same elements you would if the party was alive, except the law allows nothing for consolation, as it is termed, or for the loss of those domestic pleasures which grow out of the marital relation. They die with the party, and all the law allows is mere compensation for the support of the wife and her daughter, not exceeding a certain sum.”

Thus the regular charge to the jury ended, and, if we rightly understand the force of the language used, the jury must have been impressed with the idea that contributory negligence on the part of the plaintiff’s intestate would not defeat her right to recover, even though such negligence had reached “ the height of almost madness,” unless the defendant had shown that its agents had exercised, at the same time, all the care and caution within the scope of human foresight and possibility.

Such is not the law, as we have shown above. But we doubt whether the learned judge who delivered the charge so intended to give it. We doubt it, because when the defendant afterward excepted to the question : “ Was it in the power of this driver, having passed the first wagon, to have avoided the second one?” as propounded to the jury, the court then qualified it by adding, “ with reasonable care.” The question thus qualified would have been a proper one for tlie jury under the fourth qualification to the general rule as given in Kerwhacker’s case, provided the fault of Stallmann (if any) had been committed while engaged “in the ordinary exercise of his own rights.” Indeed, it may well be doubted whether the judge intended the above language in the charge to be taken according to our understanding of its natural and ordinary import, from the further fact that in several instances, in qualifications subsequently made to instructions prayed for by defendant, the court stated that the defendant was required to use only “ ordinary care.” Nevertheless, we think the error in the charge was not thus cured, especially as the seventh exception to the charge, which was directly made to the objectionable part above stated, in the hearing of the jury, was permitted by the court to be entered without any qualification or remark whatever.

We also find, in other parts of the regular charge, as given to the jury, other instructions tending so strongly to impress upon the jury the belief that the law requires of street railroad companies the exercise of the highest degree of care in the discharge of their duties toward the general public, that it is not at all probable that their minds were disabused upon the subject by any qualification or correction that was subsequently made. Eor instance, in - the early part of the charge, the court said: “It is the duty of every railroad company which traverses our streets to provide careful, competent, and skillful drivers, and those thus employed are bound to use all their skill and all proper prudence and care in the management of the horses committed to their charge. They have but one track upon which the cars are to be drawn. They are aware that upon a public thoroughfare, upon which every inhabitant of,the city and every person has a right to pass and repass without molestation, taking care that they do not obstruct the passage of the railway car, and yet claiming for themselves, as they have a right to do, the same benefits that the proprietors of the railway cars claim, consistent with their several occupations. The city unquestionably has the right to permit these street railroads to be established upon the public highway, but that right is subordinate to the more extended right of all to travel upon the same highway. In all these matters there must be mutual accommodation. One must not prevent the free passage of the other. There must be accommodation between them.”

To say the least, this is strotig language by which to define ordinary care, or that degree of care which is usually exercised by persons of average skill and prudence, qnder the same or similar circumstances.

Again, for the purpose of illustrating to the jury the rule, that in actions for negligeqce it' is immaterial whether the injury was the direct or indirect result of the alleged negligence, the court read an extract from the opinion in Stokes v. Saltonstall, 13 Peters, 191, as follows:

“ In an action against the owner of a stage coach used for carrying passengers, for an inj ury sustained by one of the passengers by the upsetting of the coach, the owner is not liable unless the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage in which he and his wife were passengers ; and the facts that the carriage was upset and the plaintiff’s wife injured, are prima facie evidence that there was carelessness, or negligence or want of skill, on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.
“It being admitted that the carriage was upset, and the plaintiff’s wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged; and that he acted on this occasion with reasonable skill, and with the utmost prudence and caution, and if the disaster in question was occasioned by the least negligence or want of skill or prudence on his part, then the dependant is liable in the action.
“If the want of proper skill or care of the driver placed the passengers in a state of peril, and they had, at that time, a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe, from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage to upset, and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage.”

Now, the third paragraph of this extract is undoubtedly a fair statement of the rule, in an action by a passenger against a common carrier for hire, and it might not mislead, as an illustration of the principle, if given in a cas6 wherein the want of ordinary care is the ground of liability. But it is difficult to see how the principle was at all illustrated by the first two paragraphs in the extract. By the first, the jury were clearly informed as to the amount of proof which would make & prima facie case of negligence, in an action against a common carrier of passengers for hire, for an injury to a passenger; and by the second paragraph, the jury were given to understand, that upon such a prima fade case being made, the burden was on the defendant to prove that he had acted not only with reasonable skill, but with the “ utmost prudence and caution,” and if the disaster was occasioned by “the least negligence or want of skill or prudence,” he would be liable.

Now it is true, again, that after the regular charge was concluded, and the defendant had excepted to so much of the charge as had been quoted from Stokes v. Saltonstall, the court “ instructed the j ury that the language of said case was quoted not to. determine the degree of care required, but to show that it was immaterial whether the negligence of the driver (of the car) was the direct or indirect cause of the inj ury.” And it is claimed that this last instruction was sufficient to guard the jury against any improper application of the rules as laid down in Stokes v. Saltonstall.

~We think otherwise, not solely because the first two paragraphs ought not to have been read to the jury, for the reason that the law announced therein was wholly inapplicable to the case at bar, but because the jury were not told in any part of the charge, that the law requires a higher degree of care to be exercised by common carriers for hire toward passengers than toward strangers, or that the amount or burden of proof required in one case was different from that required in the other. True, they were told that “ ordinary care ” only was required of the defendant in the case on trial, while the rule in Stokes v. Saltonstall was stated to be “ the utmost care and caution; ” yet, as the difference was not explained, it is more than possible, that’the jury would conclude, that in cases where human life was involved, “ the utmost care and caution ” would amount to “ ordinary care and caution” only. Such, however, is not the law, as we understand it, for the double reason, that a stranger is not to the same degree within the power of the defendant to injure, nor has he paid a price for the exercise of diligence toward him.

Rut it must not be understood, for these reasons, that the law’s regard for human life does not, under all circumstances, add greatly to the diligence that would otherwise be required.

Without considering other objections made to the charge as given and refused, suffice it to say, we are unanimously of the opinion that the probable, if not the necessary, effect of the charge, taken as a whole, was misleading and prejudicial to the plaintiff in error, and that the judgments of the Superior Court, both at general and special terms, must be reversed.

It is claimed, however, by defendant m error, that this cause, if reversed, should not be remanded for further trial, as it has been tried three times already, che trial in each instance resulting in a verdict for the 'defendant in error’ — • the first time for $3,000, and the second time for $5,000. That the first verdict was set aside for the misconduct of a juror, but the second verdict having, as is claimed, been set aside without good cause, this court should now, upon review of the whole record, reverse the judgment by which the second verdict was set aside, and render judgment thereon, or remand for the purpose of having judgment rendered on the second verdict in the court below.

As a general rule, where a new trial is granted on a motion to set aside a verdict and grant a new trial, and a new trial and judgment are afterward had in the case, a reviewing court, on a proceeding in érror to reverse the last judgment, will not review the action of the court in granting the new trial, in case of reversal of the last judgment: and we see nothing in this case to take it out of the general rule.

New trial granted, and cause remanded for further proceedings. ,  