
    ANDREW VAN BLARCOM, ADMINISTRATOR, DEPENDANT IN ERROR, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, PLAINTIFF IN ERROR.
    Argued November 1 and 2, 1904
    Decided March 15, 1905.
    1. A railroad company owes to an engineer employed by it in running a locomotive over its tracks the duty of exercising reasonable care to keep its tracks in a safe condition for this purpose.
    2. In an action for the death of such employe, caused by a defect in the defendant’s tracks, the jury was instructed that “it was the obligation of this railroad company to use a high degree of care to keep its roadbed in a safe condition for the uses for which it was designed.” Held, that while this instruction is not approved, it affords no ground for reversal when the objection made to it at the trial failed to point out in what respect the language to which exception was prayed was either inadequate, misleading or lacking-in precision.
    On error to Circuit Court.
    Before Gummere, Chief Justice, and Justices Garrison and Garretson.
    For the plaintiff in error, George Holmes.
    
    For the defendant in error, William Mayo Aticinson.
    
   The opinion of the court was delivered by

Garrison, J.

This is an action for damages brought under the Death act. The plaintiff having proved that the death of his intestate was caused by the derailment of a locomotive engine which intestate, as a servant of the defendant, was operating over its tracks, and having produced testimony to the effect that such derailment was caused by the defective condition of the defendant’s tracks, the pertinent rules of law were those touching the degree of care owed by a master to his servant in this respect. The language of the charge of the trial court, to which an exception was sealed and upon which error has been assigned, was as follows: “It was the obligation of this railroad company to use a high degree of care to keep its roadbed in a safe condition for the uses for which it was designed.”

The fault of this instruction is that it does not indicate to the jury that the duty of the defendant in regard to the maintenance of its tracks was limited to the exercise of reasonable care. The degree of care required of the defendant is characterized by this instruction solely as “a high degree of care,” and as no standard of care is given it is. quite possible that the jury, although satisfied that the defendant had exercised reasonable care, might still have found it guiltjr of negligence because’such degree of care appeared to the jury to be the ordinary degree of care, and did not seem to it to be a high degree- of care. Indeed, in view of the comparison thus implied, the expression “high degree of care” is not the legal equivalent of reasonable care.

The jury should have been charged that the defendant owed to the plaintiff’s intestate the duty of exercising reasonable care to keep its tracks in a safe condition. Smith v. Erie Railroad Co., 38 Vroom 636.

If such a request had been denied, or if after hearing the charge of the court the defendant’s counsel had by his exception directed attention to the respect in which the language excepted to was inadequate, misleading or lacking in precision, a substantial question of law would be presented for our decision. That such question is not raised merely by excepting to the language of a charge not erroneous per se, is the established rule of appellate procedure in this state. Garretson v. Appleton, 29 Vroom 386; Van Alslyne v. Franklin Council, 40 Id. 672.

AVe bare examined the assignments based upon the denial of the motions for nonsuit and for the direction of a verdict, and find no error in those judicial rulings.

The judgment of the Circuit Court is affirmed.  