
    Caldwell v. Murphy, Survivor, &c.
    In an action for an injury to the person, the circumstances, condition in life, and pursuits of the plaintiff may properly be given in evidence, in order to enable the jury to determine the extent of his actual damages.
    For the same reason, an inquiry into the probable consequences of the injury, as transitory or permanent, is eminently proper.
    When successive actions may be brought for a continuous wrong, the damages in each may be justly limited to those sustained by the plaintiff at its commencement.
    But where for an injury to the persbn a single action only can be brought^ the certain and probable consequences of the injury must of necessity be considered, in order to enable the jury to give to the plaintiff a full compensation.
    When the judge in beginning his charge told the jury that a common carrier for the transportation of passengers is liable to the same extent as a common carrier of goods, held that the alleged error was rendered immaterial by his finally submitting the cause to the jury upon the single question whether the servant of the defendant, the driver of a stage, had been guilty of negligence.
    Although the liability of a carrier for passengers is in some respects more limited than that of a carrier of merchandise, he is bound to use the utmost care diligence, and foresight, and if by the exercise of these, an accident from which an injury or loss has resulted might have been prevented, he is liable.
    The judge was therefore correct in telling the jury that the defendants were liable, unless the accident, the overturning of a stage, which occasioned the injury to the plaintiff, was the result of irresistible force or inevitable accident, plainly meaning by “inevitable,” an accident which human care or foresight could not have prevented.
    When the proprietors of a stage are accustomed to receive fare for the transportation of passengers on its top, they cannot impute negligence to a passenger thus seated.
    If negligence were imputable to the plaintiff, as there was no pretence for saying that it contributed to produce the accident or injury, it was no bar to his recovery.
    (Before Duer, Campbell, and Bosworth, J. J.)
    October 13, 14;
    October 20, 1852.
    Motion for new trial denied, and judgment for plaintiff affirmed with costs.
    Appeal from a judgment upon a verdict for the,plaintiff, and from an order at special term denying a new trial.
    The action was for an injury to the person of the plaintiff, occasioned by the overturning of a stage belonging to the defendants, and was tried before Mr. Justice Duer and a jury, on the 5th, 6th, Ith, and 8th days of February, 1851. The facts on which the claim for damages was founded are set forth in the complaint as follows:
    The complaint of William Caldwell, of the city of Hew York, shows that the defendants Thomas Murphy and James Kavanagh were, on or about the fourth day of Hovember, A. D. 1849, the owners and proprietors of a certain stage or omnibus which was licensed, authorized, or permitted by law to pass and re-pass upon the Third Avenue, in the city of Hew York, to any passenger for hire; that the said carriage, stage, or omnibus, was thus driven by a driver or servant of the said defendants, on the aforesaid day, upon the said Third Avenue.
    That the said carriage, stage, or omnibus, was old, rotten, weak, or of bad materials, so that it was unsafe and dangerous to be used for the purpose of carrying passengers, and that in consequence of the said condition of said stage, carriage, and omnibus, and the careless and negligent use thereof, the damages and injuries hereinafter named occurred and happened to this complainant.
    That the said carriage, stage, or omnibus, was carelessly and negligently driven along the said street or avenue. That the tongue or pole of the stage was broken, and the stage, carriage, or omnibus turned over or upset.
    That the said plaintiff was seated upon the said carriage, stage, or omnibus, as a passenger, with Agnes Caldwell, his child; that in consequence of said overturning, or upsetting, caused as before stated, the said child of this complainant was killed, and the plaintiff greatly injured, bruised, .and made sick, lame, and weak, and rendered unable to work or labor for a long space of time, and obliged to employ a physician, and be at great expense and trouble, so much so, that the damage which was caused by the defendants and their servant as before set forth in this complaint, has been, as he claims and alleges in pursuance of the statute in such case made and provided, and for his personal damage the sum of five thousand dollars, and he therefore prays judgment for the said sum of five thousand dollars.
    The defendants, in their answer, denied that on or about the day mentioned in the complaint they employed, drove, or used, or permitted to be employed, drove, or used, any stage or omnibus for the transportation of passengers on the Third Avenue, of the unsound and bad condition mentioned in the complaint, and they denied that on or about that day any stage or omnibus belonging to them was broken or upset in consequence of such condition. They also denied that any stage or omnibus, of which they were the proprietors, was at the time mentioned broken or "upset by the careless or negligent driving thereof, and they averred that the only stage or omnibus belonging to them, which was upset or broken at the time mentioned, was so upset and broken in consequence of the bad and unsafe condition of the Third Avenue, and that for damages arising from this cause they were not liable.
    Upon the trial a number of witnesses were examined on both sides, and there was considerable variance and some contradictions in their testimony, but the material facts stated in the complaint, except the unsound condition of the stage, were fully proved, and the conflict in the testimony related chiefly to the condition of the road at the time of the accident, and to the question whether by proper caution on the part of the driver it might have been avoided.
    The defendants’ counsel moved for a nonsuit, which was denied, and in the course of the trial various exceptions were taken to the ruling of the judge upon questions of evidence. The grounds of the motion and the nature of the exceptions appear sufficiently in the opinion of the court.
    On the trial the proceedings of a coroner’s jury, who acquitted the owners and driver of the stage of all negligence, and imputed, the accident solely to the bad condition of the avenue, were given in evidence, and it appeared from the proceedings and the testimony of the coroner, that Kavanagh, one of the defendants, had been summoned and had served as a juror.
    When the testimony was closed, the defendants’ counsel moved the court to strike out of the cause all of the evidence relating to the death of the child, on the grounds that the plaintiff had not proved any pecuniary loss or damage to have accrued therefrom. The judge thereupon decided as a matter of law, that the plaintiff could not recover any damages for the death of the child, because the statute contemplated pecuniary damages, and the plaintiff had not proved any. The cause was then summed up to the jury by the counsel for the respective parties, when the counsel for the defendant asked the judge to charge to the jury the following propositions as matter of law:
    . 1. Plaintiff cannot recover if from the evidence the jury believe that the driver of the stage used ordinary care and prudence in its management. -
    2. Plaintiff cannot recover if his injury arose from the driver’s negligence, coupled with plaintiff’s own carelessness, misconduct, or the want of ordinary prudence or care on his part in getting on to the top of the stage after it was full. Hor if his being on the top of the stage in an exposed condition necessarily contributed to the overturning of the stage.
    3. Plaintiff cannot recover if he was imprudently the heedless cause of his own injury. That to entitle him to recover, the law requires the party prosecuting to be without fault.
    4. That if the jury believe that the upsetting of the stage was caused by the obstruction or unsafe condition' of the Third Avenue, that defendants are not liable.
    5. That in case the jury are of the opinion that the plaintiff’s injury wholly arose from the driver’s carelessness, they cannot take into the account of their verdict any loss of service or time subsequent to or since the commencement of this action.
    The judge charged the jury, that by the rules of the common law every principal is liable for the acts or omissions of his agent, every master for those of his servant within the scope of the employment for which the agent or servant is retained. That these rules applied emphatically to common carriers, to which class the defendants, as engaged in the business of transporting passengers for hire, certainly belonged. As a general rule, a person who contracts to perform a particular service for a reward is responsible only for ordinary care and diligence, but the law exacts from common carriers and them servants extraordinary care and diligence, and regards its omission as culpable negligence, and hence unless the loss, with which they are sought to be charged, appears to have resulted from irresistible force or inevitable accident, they are not excused from liability. These rules had been assailed by the counsel for the defendants as harsh and inequitable, but they were found in the code of every civilized nation, ancient and modern, and were in reality founded on very manifest and sound reasons of public policy, so much so, that were they to be abandoned, or materially relaxed, the security that is now enjoyed for property and life would be greatly endangered.
    The complaint in this case charged that the injuries which the plaintiff had sustained had arisen from the unsound and rotten condition of the stage and from the negligence of the driver, and if the overturning of the stage was owing to the joint action of these causes, or to the separate action of either, the plaintiff was entitled to a verdict for such damages as under all the circumstances the jury might deem to be reasonable.
    That in his opinion, there was no evidence to warrant the inference that the accident was owing in any degree to the unsound condition of the stage, and consequently the sole question was, whether it was justly imputable to the negligence of the driver.
    That the determination of this question seemed to depend entirely upon the credit to be given to the testimony of the driver. If it was true, as had been sworn, that the oversetting of the stage was solely owing to the sudden rolling of a heavy stone from the top of the bank, the accident might properly be regarded as one that could not have been foreseen or guarded against, and for the consequences of which, therefore, neither the driver nor the owners were responsible. But on the other hand, if the stone, when struck by the wheel of the stage, was lying in the road, it seemed impossible to deny that the accident might have been avoided in the exercise of that care and diligence which the driver was bound to use. Upon this supposition he saw no escape from the conclusion that the injuries to the plaintiff resulted from the negligence of the driver, and therefore that the defendants were bound to compensate him.
    That the jury must judge for themselves whether the statement made by the driver was not highly improbable, and wholly inconsistent with the testimony of other and disinterested witnesses. The driver was in truth swearing to discharge himself, and in judging of the credit due to him, it was a material circumstance that no such explanation had been given by him, when examined before the Coroner. That in judging of the conduct of the driver, the jury were not to be at all influenced by the verdict of the Coroner’s jury'. The proceedings before the Coroner were not evidence of themselves, and they had been so conducted as to deprive them of all claim to consideration.
    That if the jury should arrive at the conclusion that the overturning of the stage was owing to the want of due caution on the part of the driver, the bad condition of the road afforded no excuse, nor did the circumstances of the case furnish any ground for the assertion that the accident was owing to any negligence on the part of the plaintiff. He was not to be deprived of damages because he had, taken his seat on the top of the stage, or had failed in the confusion and terror of the moment to adopt the best course for extricating himself and his child from the peril. That if the jury, under the instructions given to them, should be of opinion that plaintiff was entitled to recover, they would wholly lay out of their view the death of plaintiff’s child, and would only take into their consideration in making up their verdict, plaintiff’s personal sufferings and injuries of body, including his loss of service or labor, and his continuing or probable permanent disability and loss, together with the amount expended by him in his sickness for medicine or other attendance and necessaries, and would allow him therefor, as his actual damages, a full and liberal compensation.
    The judge then refused to give any more specific answer than that contained in his charge to the several propositions of law, or any of them, submitted by defendant’s counsel. Defendant’s counsel thereupon excepted to each and every part of the charge of the judge, and did also except to his several refusals - to charge the jury, as above severally requested, and such and every of said exceptions were duly entered.
    The jury found a verdict for $625 as damages.
    
      T. Darlington, for the defendant Murphy, now insisted that the verdict ought to be set aside and new trial be granted, and rested his argument principally upon the grounds stated in the opinion of the court.
    
      D. E. Wheeler, for the plaintiff, contra.
   By the Court. Campbell, J.

It was said in Myers v. Malcocol/m, which was an action to recover damages for injury to the person, that evidence of the wealth of the defendant was inadmissible, because the plaintiff was entitled in that case to recover the actual damages he had sustained without regard to the ability of the defendant to pay them, and such is the general rule in cases free from malice or wilful negligence. But, in relation to the plaintiff, the case is widely different. As to him, it is often necessary to inquire into his condition in life, his habits, pursuits, and necessities, in order that the jury may determine what actual damage he has sustained. The loss of a limb might produce equal pain to two men, but the actual damage which that loss would occasion, when we are called upon to estimate that damage in dollars and cents, would depend very materially upon the pursuits and condition in life of the party claiming to recover such damage. In Foot v. Tracy, 1 John 53, Kent, J., says, “The jury have, and must inevitably have, a very large and liberal discretion in apportioning the damages to the rank, condition, and character of the plaintiff, and they must have evidence touching that condition and character, so as to have some guide to that discretion.” (See Lincoln v. Saratoga & S. R. R. Co., 23 Wend. 425). In estimating that damage also, it is very manifest that a most important inquiry must be, whether the injury which the plaintiff has sustained is of a temporary or of a permanent character. Where successive actions may be brought for a continuous wrong, as in the case of a continued trespass upon land, the damages in each suit are very properly limited to those sustained by the plaintiff at its commencement, but for an injury to the person, resulting from a single act, a single action only can be brought, and it would therefore be manifestly unjust not to take into consideration upon the trial the nature and extent of the injury in all its consequences, since, by not so doing, the plaintiff in many cases would be deprived of the larger portion of the compensation he might justly claim, and the damages given be wholly disproportioned to the injury sustained. The ruling of the judge on the trial, admitting evidence on both these points, we therefore think was correct. Another question put to one of the witnesses, inquiring what had been the condition of the plaintiff as to health since the injury, was objected to, and application was made to strike out the answer of the witness, which answer was, that the plaintiff has since invariably complained, and which application to stride out was refused by the judge. It was, perhaps, not very material, and was not much pressed upon the argument. The complaint of pain and suffering connected with the appearance of the injured party, form the means of judging as to his physical condition. The witness to whom this question was addressed had attended on the plaintiff as a friend during the period immediately following the injury, and had aided in lifting him in and out of bed, and saw him frequently after'he was able to leave his house, and had therefore the best means - of learning whether such complaint was real. We think it was proper evidence for the jury under the circumstances. The judge charged the jury that, as a general rule, common carriers transporting passengers for hire are liable for damage to the persons carried, unless the same resulted from inevitable force or inevitable accident, but in this case, he added, that the sole question was whether the accident was justly imputable to the negligence of the driver. It was contended by the defendant’s counsel that there is a wide difference between the liability of common carriers of merchandise and of carriers engaged in the transportation of passengers, that while, by the common law, the rule, originating in motives of public policy, was that the former were rendered liable for loss, except occasioned by the act of God or the king’s enemies, it was much less stringent in reference to the latter class of carriers, and they are not liable if they use ordinary care and prudence in the management of their vehicles. In Ingolls v. Bills and others, 9 Metcalf 1, the Supreme Court'of Massachusetts examined with much care, and commented on many of the leading cases, and they say in conelusion: “ The result to which we have arrived, from the examination of the case before us, is this—that carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harness, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against.” Having thus provided the means of transport, they are in like manner bound to use the utmost care and diligence in the managing, directing, and using those means, so that, as far as human care and foresight can go, they may guard against injury., Having done all that human-care and foresight can do, and loss happening, they are not liable. ' Pure accidents will excuse them. They are not answerable, at all events. Human life is too valuable to be required abso-1 lutely at the hands of those who have done all that the utmost I care and foresight can do for its protection. But the magnitude of its value, at the same time, requires of carriers of passengers such extreme care and foresight. The charge of the judge that the law exacted from common carriers of passengers extraordinary care and diligence, and that they are liable, unless the injury arises from force or pure accident, was entirely correct. W e do not deem it necessary to enter upon a review of the cases, but we think they will be found to support this view. See Christie v. Griggs, 2 Campbell 79; Aston v. Heeren, 2 Esp. R. 533; and Ingolls v. Bills, 9 Metcalf 1, and cases there cited.

At the present period, when the lives of so many hundreds of people are intrusted to the carriers of passengers by steamboats j and railroads, and when accidents and disasters are so lament- / ably frequent, it is no time to relax a rule so salutary and so f necessary for the public safety.

There was no evidence tending to show that the plaintiff was guilty of negligence. He was on the top of the stage with many others by the consent of the driver, who collected his fare from them; and, when the owners of a stage agree to transport passengers upon the top, they have assuredly no right to impute negligence to a passenger thus seated. It appears, also, that there were seats for passengers on the top of the stage. The negligence of the plaintiff, if there had been any, in order to excuse the defendant, must have been such that it directly concurred in producing the injury. It can hardly he pretended that it did so. The comments of the judge upon the evidence seem to have been fairly warranted. The testimony of the driver was contradicted in material points by that of two or three other disinterested witnesses. The credit to he given to him was, however, left to the jury, and the whole case was, we think, fairly submitted. The other objections that were taken on the trial, and partly urged on the hearing before us, have seemed to all of us so evidently groundless as not to require a special notice. The judge, at the close of the testimony, decided that the plaintiff could not recover any damage for the death of the child. The verdict of the jury was for §625, and considering the plaintiff’s injury was not large. We are unable to see any reason for a new trial.

The judgment for the plaintiff is therefore affirmed with costs.  