
    The Cleveland, Columbus and Cincinnati Railroad Company v. Jacob Terry.
    1. 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 employees 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.
    2. The degree of care required in such cases of the employees, 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.
    3. Where the party injured is an adult of ordinary mental capacity, but partially deaf, her infirmity not being known to the servants of the company, will not increase their responsibilities as to care; nor will it excuse her from the full measure of care which prudent persons, partially deaf, but conscious of their infirmity, would ordinarily observe under similar circumstances.
    4. Such deafness, though unknown to the servants of the company, is a circumstance so connected with the infliction and receipt of the injury, that it could not, in the progress of the trial, be rightfully excluded from the jury; but the court should see that such circumstance is not improperly used by the party giving it in evidence.
    5. Where a series of instructions are asked, they are to be construed together; and where it is apparent, from the whole series and the responses of the court thereto, that general terms employed in some of the instructions asked were used and understood in a limited or restricted sense, they will, on error, be so regarded.
    6. Where evidence of such deafness and evidence that the party injured, at the time of crossing the track, was prevented from observing the proximity of the train, by reason of a veil drawn and retained over her face, has been submitted to the jury, it is the right of the defendant to require the court to charge the jury, that neither such deafness nor voluntary obscuration of vision, will excuse the party injured from the observance of such ordinary care, “by the more cautious exercise of her remainiug facultiesand the court, on being requested so to charge, cannot, without comment, refer the whole matter to the jury.
    7. The right of the court, under the code, to direct the jury to find a special verdict, is purely discretionary, and their refusal to do so cannot be assigned as error.
    In Error to tbe District Court of Delaware county.
    Tbe Cleveland, Columbus and Cincinnati railroad track intersects a public highway in the village of Ashley, in the-county of Delaware.
    On the 28th day of December, 1854, the express train, on the railroad track, going north, was approaching this point of intersection, at the same time the wife of Jacob Terry, going east along the highway, was approaching the same point of intersection; and before she got across the railroad track, she' was struck by the engine of the advancing train and badly hurt.
    Terry brought an action against the company to recover damages for the loss of his wife’s services, and for the expense he had been and would be subjected to, in doctoring and taking care of her, consequent upon being struck as stated; and alleges that she was thus struck and injured without her fault, and through the carelessness of thé agents of the company who were in charge of the engine and train.
    The answer of the company denies the negligence imputed to its agents, and insists that the injury to Mrs. Terry was tbe result of her own want of care, etc.
    In June, 1857, the case was tried in the district court; and resulting in a verdict for Terry, the company moved for a new trial, which was overruled. and judgment entered on the verdict.
    To reverse this judgment the present petition in error is prosecuted.
    It appears, from the bill of exceptions, that on the trial before the jury in the district court, the plaintiff, to maintain the issue on his part, offered evidence tending to show that, at the time of the accident, his wife was partially deaf, whereby she was prevented from hearing the approach of the train by which the injury in question was produced, as readily as persons in general could, in like circumstances, hear the same. To the introduction of which testimony the defendant objected, unless the plaintiff proposed to show, also, that a knowledge of such deafness was, at the time, brought home to the defendant; which objection the court overruled and admitted the testimony. The plaintiff introduced testimony tending to show, also, that at the time of such injury, it being in the month of December and a drizzling rain, with wind, falling at the time, his wife was covered with a hood, and had over her face a veil, which was doubled, whereby she was prevented from seeing with distinctness. And the defendant introduced testimony tending to show, among other things, that the plaintiff’s wife was in fact aware of the approach of train, before she stepped on to the track at the time of the injury, and that she was induced to step on to said track, because she was deceived by said hood and veil as to the distance the train was off at the time.
    And thereupon, the evidence being closed, the defendant, among other things, asked the court to charge the jury—
    “ 5th. That if they should find that the wife of the plaintiff was in fact deaf in any degree, this circumstance could not enhance the responsibilities of the defendant as to the care it should exercise, unless a knowledge of the fact was brought home to it; but on the other hand, that circumstance would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of.
    “ 6th. That if the wife of the plaintiff' had so muffled up her face as to prevent her from seeing with accuracy, at the time she was crossing the track of the defendant, that fact would throw no additional responsibilities, as to care, upon the defendant, but would increase her own.”
    And the court having, in answer to other instructions asked, charged the jury that the defendant was not liable in this action, unless they should find from the testimony, first, that the defendant was guilty of negligence, and second, that that negligence was the sole cause of the injury, further charged the jury, that if Mrs. Terry was guilty of any carelessness at the time, which contributed, in any material degree, to the injury, the plaintiff could not recover. That if she omitted to do any thing at the time which she might have done, in the exercise of reasonable and ordinary care, under the circumstances, which would have prevented the injury, then the plaintiff could not recover. That if the jury should be satisfied from the testimony, that (when) the wife of the plaintiff stepped upon the track of the defendant, at the time of the injury complained of, she was aware of the approach of the train by which the injury was produced; and if they should find that that train was within such a distance as to render it dangerous for her to cross, and that, by the reasonable exercise of her faculties, and by ordinary care at the time, she could have been made aware of the danger, her passing upon the track, under such circumstances, was such an act of carelessness in the premises as would prevent the plaintiff' from recovering for the injury thus sustained, unless the injury was wantonly inflicted by the defendant.
    In reply to the 5th instruction asked, the court charged the jury, “ that if they should find that the wife of the plaintiff was in fact deaf in any degree, this circumstance could not enhance the responsibilities of the defendant as to the care it should exercise, unless a knowledge of the fact was brought home to it; ” but the court refused to charge the jury, “ that the circumstance of her deafness would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of,” and left that matter to the jury as a question of fact, under all the circumstances of the case, and the charges aforesaid before given.
    And in reply to the 6th instruction asked, the court charged the jury, “ that if the wife of the plaintiff’ had so muffled up her face as to prevent her from seeing with accuracy at the time she was crossing the track of the defendant, that fact would throw no additional responsibilities as to care upon the defendant;” but the court refused to charge the jury, “ that the fact that she was so muffled up would increase her own responsibilities as to care,” and left that matter as a question of fact for the jury, under all the circumstances of the case, and the charges before given.
    The defendant also requested the court to instruct the jury to find specially, in their verdict, whether the carelessness of the wife of the plaintiff, at the time of the injury, contributed, in any material degree, to the production of that injury, and whether her conduct, under the circumstances, was such as was consistent with reasonable care and prudence. But the court declined so to instruct the jury.
    The defendant excepted to the admission of the evidence of the deafness of Mrs. Terry and to said refusals of the court to charge the jury as requested, and to the charge given in lieu thereof.
    The plaintiff in error insists that the district court erred—
    1st. In admitting the evidence tending to prove the partial deafness of Mrs. Terry, without requiring Terry to show that the agents of the company, in charge of the train, knew of such deafness.
    2d. In refusing to charge the jury that such deafness, if it existed, would throw upon her the necessity of a more cautious exercise of the faculties'she was possessed of; and in leaving that matter to the jury as a question of fact.
    3d. In refusing to charge the jury that, if Mrs. Terry had so muffled up her face as to prevent her from seeing with accuracy at the time she was crossing the railroad track, that fact would increase her own responsibilities as to care; and in leaving that matter to the jury as a question of fact.
    4th. In refusing to instruct the jury to find a special verdict as requested.
    
      Critchfield, and Jones ‡ Carper, for plaintiff in error:
    The court below erred in admitting the evidence of Mrs. Terry’s partial deafness, because the only object there could have been for offering it was to excuse her from the exercise of the same amount of care which the law requires of persons in general, to avoid such collisions — to excuse her for conduct which, unless thus excused, would have shown a want of ordinary care on her part, to avoid the injury complained of. The fact that she was partially deaf, could not properly and legally have that effect. Evidence of it, then, was irrelevant, and tended to mislead the jury; and it was error to admit it. 1 Greenlf. Ev., p. 70, sec. 52; Wheloch v. Hardy, 4 Litt. Rep. 274; Fisher v. Shaw, 7 S. & R. Rep. 161; Lee v. Tapscott, 2 Wash. Va. Rep. 281.
    The court erred in refusing to instruct the jury as requested by the plaintiff in error, in regard to the effect of Mrs. Terry’s deafness and obscured vision, upon the question of the degree of care she was required to exercise. Had the jury been instructed as requested, upon these points, it would not have been requiring of Mrs. Terry more than ordinary care to keep from being., hurt, hut merely such an extra vigilance to inform herself of her danger, and to guard against it, as would make up for her defective hearing and vision, so as to thereby make the care she would have exercised amount to ordinary care.
    If she was defective in her hearing, it was incumbent upon her to be more cautious in looking. If the hood and veil obstructed her vision, so that it was more difficult for her to see the train, or to judge of its position, to compensate for this, it was necessary for her to exercise the more care in approaching the track, etc. This was the legal effect of Mrs. Terry’s partial deafness and obscured vision, when, in such a case as this, the question is, whether the party injured took the proper care to guard against the injury complained of.
    Before a recovery can be had, in such a case, the condition precedent must have been complied with — the due amount of care must have been taken by the injured party.
    So inflexible is this rule of law, and of such general application, that even children of such tender age as to be incapable of taking any care of themselves, and even lunatics, are said to be subject to its requirements. That is to say, tbe want of care on the part of the parents or guardians of the child or lunatic, will furnish, it is said, the same answer to an action by the child or lunatic, as would a want of care on the part of the plaintiff, in an action by an adult or sane person. Hartfield v. Roper, 21 Wend. 615; Willitts v. The Buffalo & Rochester R. R. Co., 14 Barb. 585.
    The court below erred in leaving it for the jury to determine what effect the partial deafness and obscured vision of Mrs. Terry would have upon the question of her negligence. This was submitting to the jury a matter of law, for what amounts to ordinary care is a question of law. Runyan v. Cent. R. R. Co., 1 Dutcher 558; Moore v. Cent. R. R. Co., 1 Zabr. 285; Herring v. The W. & R. R. R. Co., 10 Ired. (Law) 407; Avera v. Sexton, 13 Ired. (Law) 247; Spencer v. The U. & S. R. R. Co., 5 Barb. 337; Haring v. The N. Y. & E. R. R. Co., 13 Barb. 9; Sheffield Herrender v. The R. & S. R. R. Co., 21 Barb. 339; Foot Reynolds v. Wiswell, 14 Johns. 304; Manhattan Bank v. Lydig, 4 Johns. 377; Timmons v. The Central Ohio R. R. Co., 6 Ohio St. Rep. 105; Barber v. The M. R. & L. E. R. R. Co., 5 Ohio St. Rep. 567; Mitchell v. Williams, 11 M. & W. 216.
    The defendant below was entitled to special instructions upon the effect of the facts of deafness and obscured vision; and the court erred in submitting these matters to the jury as questions of fact, “under all the circumstances of the case, and the charges before given.” There was nothing in “ the charges before given ” that could take the place of these specific instructions requested and refused. Avera v. Sexton, 13 Ired. (Law) 247; Jones v. The State, 20 Ohio Rep. 46.
    
      F. T. Backus, also, for plaintiff in error.
    
      Reid if’ Eaton, and Powell $ Van Eeman, for defendant in error.
    
      Reid insisted—
    1. That in determining whether Mrs. Terry was guilty of negligence, misbehavior, or of the want of proper care and caution, it is proper to take into consideration her age and condition, etc., etc. Brige v. Gardner, 19 Conn. Rep. 507; Dynch v. Nurdin, 1 Adol. & Ellis 35; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. Rep. 160; Chaplin v. Hawes et al., 3 Carr. & Payne 554.
    2. That it was not competent for the railroad company, on the trial of this case in the district court, to select two of the facts (Mrs. Terry’s partial deafness and obscured vision) which the plaintiff claimed to have proved, and require a charge to the jury on these two supposed facts. Beers v. Housatonic R. R. Co., 19 Conn. 566; W. M. Ins. Co. v. M. & M. Ins. Co., 5 Ohio St. Rep. 450.
    3. That as the requests made to the district court did not contain all the necessary elements to make them legal propositions, so that the court could adopt and charge them as law, they were properly refused. Inglebright v. Hammond, 19 Ohio Rep. 336, 346; Bradley v. B. & M. R. R. Co., 2 Cush. 539; Morse et al. v. B. & B. R. R. Co., 27 Verm. 54.
    4. That the instructions requested were properly refused, because they were too vague and indefinite, and calculated to mislead and confuse the jury. W. M. Ins. Co. v. M. & M. Ins. Co., 5 Ohio St. Rep. 450.
    5. That neither of the supposed facts — Mrs. Terry’s .partial deafness and obscured vision — if proven in the case, was per se negligence, in law, but both were facts properly left to the jury under the charge of .the court as given.
    6. That a person of defective faculties can go to other sources or means of vigilance to avoid injuries, than to such person’s senses or faculties, alone.
    7. That the two supposed facts, so selected by counsel for plaintiff in error, being disputed and not admitted facts, were properly and necessarily left to the jury.
    8. That there is no error in the record, because no part of the evidence is given to enable this court to determine upon the points raised. Code, sec. 292; W. M. Ins. Co. v. M. 
      
      & M. Ins. Co., 5 Ohio St. Rep. 450; Scovern v. The State, 6 Ohio St. Rep. 294.
    
      Powell ft Van Deman insisted—
    That ordinary care and reasonable care are convertible terms; or, in other words, that the ordinary 'care which the law requires of the plaintiff in cases of this kind, is that reasonable care that the plaintiff, under the circumstances, is reasonably capable of observing. And it is for the jury to take into consideration all the surrounding circumstances, in ascertaining whether, the plaintiff has taken that care, in the case, which the law requires. Beers v. Housatonic R. R. Co., 19 Conn. Rep. 566; Lynch v. Nurdin, (1 Adol. & Ellis 38,) 41 Eng. Com. Law Rep. 422, 425; Kerwhacher v. C. C. & C. R. R. Co., 3 Ohio St. Rep. 190; Chaplin v. Hawes, 3 Carr. & Payne 554; Ang. on Com. Car., sec. 555, 563, n. 2; Gilligan v. N. Y. & Harlem R. R. Co., 1 Smith N. Y. Com. Pl. Rep. 456.
    That the subject matter of the charges refused, was couched in terms too broad, and it was no error to refuse them. They required of the plaintiff’s wife the exercise of more than ordinary caution, without regard to her partial deafness — required the court to go beyond any case yet reported.
    That the court did not err in admitting to the jury the circumstance of the deafness of Mrs. Terry. It was important for the jury to have that circumstance before them, in settling the point whether or not she was, as the defendant endeavored to prove, aware of the approach of the train. The fact of her deafness was not irrelevant.
    ' That the court did not err in leaving to the jury the circumstance of Mrs. Terry’s deafness, as a fact, subject to the previous charge of the court, which was such as to induce the jury to believe that they must find that Mrs. Terry did observe ordinary caution, or the plaintiff could not recover. This was not submitting to the jury the law of the case. Until the facts are established, by the finding of the jury, or the admission of the parties, the question of negligence is a mixed question of law and fact, to be found by the jury, subject to the direction of the court, and if not rightly settled by the jury, subject to revision by the court, upon motion for a new trial. Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. Rep. 567; Ang. on Com. Car., sec 51, also sec. 27, and the authorities there cited; Beauchamp v. Powley, 1 M. & Rob. 38; Storee v. Gower, 6 Shep. Rep. 174; Tracy v. Wood, 3 Mason’s Rep. 132; 2 Steph. N. P. 1015; Beers v. Housatonic R. R. Co., 10 Conn. Rep. 566; Morse et al. v. B. &; B. R. R. Co., 27 Verm. Rep. 54, is directly in point; Barber v. Essex, Ib. 70; 28 Verm. Rep. 183.
   Peck, J.

The first question which arises upon the record is, whether, under the issues joined between the parties, the court below erred in admitting testimony of the partial deafness of Mrs. Terry, the plaintiff not proposing to show that the defendant knew of her deafness at the time the injury was inflicted. It is clear, we think, that without such knowledge on the part of defendant, the unfortunate condition of Mrs. Terry would not impose upon the defendant or its agents, any increased degree of care; and such seems to have been the matured opinion of the court below; for in its charge to the jury, the court expressly say, that such deafness could not enhance the responsibilities of the defendant, unless a knowledge of the fact should be brought home to it. The answer of the company denies the negligence imputed to its agents, and insists that the injury to Mrs. Terry was the result of her own want of care, etc. And it is quite probable that when the testimony was offered, it may have been supposed that, without such knowledge, Mrs. Terry’s condition reflected upon the degree of care to be exercised by the defendant below or its agents; but if the evidence was competent and admissible on any other ground, though not for that purpose, the failure of the plaintiff to disclose the true ground, would not have authorized its rejection.

The issues before the jury involved the question of the exercise of ordinary care and prudence, on the part of Mrs. Terry, and also of the railroad officers. The solution of these questions depends upon ■ the .-peculiar facts and circumstances of each case, the state and condition of the parties,'the manner in which, and the circumstances under which, the injury was received or inflicted; in short, all the circumstances surrounding the transaction, which in any way reflect upon either the degree of care or the manner in which, in the particular case, it should have been exercised. The circumstances are all relevant, and may be given to the jury. The effect which they should have upon the jury, is another and very different question. They form, so to speak, a part of the res gesta of the transaction; they are the circumstances under which it occurred, and indicate the agencies which caused it, and should not, therefore, be excluded; but the coux*t -trying the cause, should, so far as practicable, see that undue weight is not attached to them by the jury.

There was not, then, in our judgment, any error in the admission of the testimony, in regard to the deafness of Mrs. Terry.

Did the court below err in refusing to give the instructions asked by the plaintiff in error, as to the effect of Mrs. Terry’s deafness — -“that that circumstance (if proved) would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of; ” or in refusing to instruct them u that if the wife of the plaintiff (below) had so muffled up her face as-to prevent her from seeing with accuracy, at the time she was cx’ossing the track of the defendant, her responsibilities would be thereby increased?”

Both parties — the railroad company and Mrs. Terry— were bound — the one in running their cars, and the other in crossing the track — to the observance of ordinary care and prudence, in order to prevent an injury to either.

If the party sued acted with ordinary care and prudence, or if both parties were guilty of negligence — that is, a want of ordinary care and prudence — contributing directly to the injury, no recovery can be had. In the first case, the defendant has fulfilled all the obligations which the law imposed upon it; and in the last, both parties are in fault, and the damages could not be apportioned.

The jury, in this case, by their verdict, found the defendant below guilty of culpable negligence in the conduct and management of their train, and this would entitle the plaintiff below to a verdict and judgment, unless Mrs. Terry was also guilty of culpable negligence, contributing to the injury.

What, then, is meant by ordinary care and prudence, the observance of which exonerates a party, in case of accident, and the absence of which, in this class of cases, is termed negligence, and renders a party liable ?

Ordinary care is not defined in the charge copied in the bill of exceptions, but it is well known to mean 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.

It is obvious from this definition, that the ordinary care required by the rule, has not only an absolute, but also a relative signification. It is to be such care as prudent persons are accustomed to exercise, under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is inquired than where the circumstances are less perilous; because prudent and careful persons, having in view the object to be attained, and the just rights of others, are, in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case. The circumstances, then, are to be regarded in determining whether ordinary care has been exercised.

And in the case at bar, in determining whether Mrs. Terry, in the cases referred to in the 5th and 6th instructions asked, did conduct herself with ordinary care and prudence, in attempting to cross the railroad track at the time of the accident, the question to be solved by the court and jury may be stated thus: Would persons of ordinary prudence and capacity, partially deaf, but conscious of that infirmity, and with her head so muffled as to prevent her seeing with accuracy, attempt to cross the track at the time, and under the circumstances, when she made the attempt ? Her partial deafness, and the fact, if true, that her head was so muffled with a veil as to prevent her seeing with distinctness, are as much part of the circumstances under which the attempt was made, as the time when it was attempted, and the fact that the up’ train was then momentarily expected. They formed a portion of the circumstances, which are to graduate the effort and determine whether ordinary care was exercised by her.

Much unnecessary embarrassment and complication is thrown about the question of the relative duties and responsibilities of the parties receiving and inflicting injuries, by losing sight of this distinction between the amount, and the degree or hind of care to be exercised in each particular case.

Such being the rule, as to the duties and responsibilities of the party injured by an accident, where the other party is in fault, did the court err in refusing to charge the jury, that, under the fifth instruction asked, Mrs. Terry’s partial deafness ■ “ would throw upon her the necessity of a more cautious exercise of the faculties she was possessed of or, under the sixth instruction asked, “ that if Mrs. Terry’s face was so muffled up as to prevent her seeing with accuracy at the time she was crossing the track, that, fact would increase her responsibilities ? ”

The circumstances alluded to in these instructions, were in evidence before the jury, and were claimed as proved by the plaintiff; and, as we have already seen, were circumstances proper for the consideration of the jury, in determining whether due care had been observed by Mrs. Terry.

The instructions, it is true, especially the sixth, claim that, by reason of the facts stated, Mrs. Terry’s responsibilities were increased; but it is obvious from the whole series of instructions asked, especially the 4th and 6th, and the responses of the court, and at the same time giving to the bill of exceptions a reasonable and not hypercritical construction, that it was not claimed by the defendant below, nor understood by the court as claimed by defendant, that anything more than ordinary care, in its legal sense, was in any event required of Mrs. Terry.

The fifth instruction docs not, perhaps, even in terms, assert any increase of responsibility; it being, merely, that a partial paralysis of one sense, requires a more cautious exercise of those which remain, in order to avoid injury; and, therefore, in no sense enlarges the obligation of Mrs. Terry to the exercise of anything more than ordinary care.. It is to be borne in mind that the court below, while they had laid down the rule, that reasonable care to avoid the injury, was required of Mrs. Terry, did not, in any portion of the charge set forth in the bill of exceptions, define what would be reasonable care, nor allude to the fact, that it is relative in its character, and dependent on the particular circumstances. The evidence of partial deafness, and the obscuration of vision through the agency of the double veil, were before the jury, neither of which, under the charge of the court, increased the responsibilities of the plaintiff in error; and it was therefore of much importance for the jury to know it could not, in law, limit or qualify the obligation of Mrs. Terry to exercise ordinary care and prudence to avoid injury, as hereinbefore explained.

It is claimed, however, that the court might rightfully refuse to give the charges asked, because they had too wide a scope, no limit being affixed to the extent of the requirement of “ a more cautious exercise of her (remaining) faculties,” in the fifth, and the “ increase ” of her responsibilities in the sixth; so that the charges asked, reached extraordinary as well as ordinary care, and therefore claimed too much.

We have already had occasion to remark, that the bill of exceptions is to receive a reasonable, and not a hypercritical construction; that the series of instructions asked should be taken together; and it is apparent from the 4th ánd 7th instructions asked and given, that the degree of care contemplated in the series, and understood by the court, was merely ordinary care under the circumstances. And the general terms ■ employed in those instructions should be regarded as limited to the exercise by Mrs. Terry of ordinary care, in its legal sense.

Again, it is claimed that the question, of whether there was negligence on the part of Mrs. Terry, is a question of fact upon which the court cannot be required to express an opinion, and was, therefore, very properly left, without comment, to the jury. •

Upon this question there is some diversity in the authorities. See them collected and commented on in Pierce on Railways 283-4, and Redfield on Railways 333, et seq.

The better rule is, probably, that stated in Trow v. Vermont Central R. R. Co., 24 Verm. Rep. 497: “The question of negligence is a mixed question of law and fact, típón which, if askedj it is the duty of the court specifically to instruct the jury; and where the facts in the case are admitted, or where there is evidence tending to prove the facts, it is (ordinarily) the duty of the court, if requested, to instruct the jury whether the facts admitted or found to be true, constitute (sucb) negligence as will defeat the action.”

It is not perhaps necessary to decide this somewhat vexed question. The court had not defined what, in law, was meant by ordinary care; the facts alluded to wei’e in evidence, and, as we have seen, reflected upon the extent of ordinary care in that case — they were á part of the circumstances under which the injury to Mrs. Terry was inflicted and received; and, in the absence of any instruction, that in determining the question of ordinary care, the jury were to look to all the circumstances surrounding the transaction, it is very clear, we think, that the defendant below might require of the court to instruct the jury as to the effect of those circumstances, if established, upon the question of ordinary care.

There is a class of cases to be found in the books, where persons of unsound mind, or of immature age, and who, from their infancy, or insanity, are incapable of properly estimating the danger and avoiding the injury, have been injured by the negligence of others, in which the courts have arrived at different and inconsistent results. Some holding that no recovery can be had in such cases, if their conduct would have amounted to negligence in an adult of ordinary intelligence and capacity; while a recovery has been permitted in other tribunals, on the same or a similar state of facts. See cases cited in Pierce on Railways 278, et seq. And it is sought to assimilate the disability of Mrs. Terry to those cases which allow a recovery, and claim a right to recover, because she was disabled from hearing the approach of the cars; and not, therefore, chargeable with negligence.

It is a sufficient answer to say, that even if the cases which allow a recovery for negligence for injuries inflicted upon persons of unsound mind or tender years, irrespective of the negligent conduct of such persons, be sound law— and as to which we do not now express any opinion — they can have no just application to the case at bar, where the person injured was of mature age and presumed sanity and capacity. In the case of a person of unsound mind., or of tender years, tbe recovery is allowed because, not being possessed of capacity and intelligence to properly apprehend tbe peril and adopt measures to avoid it, negligence cannot justly be imputed to them; while Mrs. Terry was of mature age, and, for aught that appears in the bill of exceptions, in the full possession of all her mental faculties —competent to truly estimate the peril, and to determine the proper’ means of avoiding the danger. The reason, then, which authorized the exception in the one case, does not arise in the other.

The other error assigned, that the court declined to instruct the jury to find a special verdict, has not been argued, and I presume is, not insisted upon by the counsel for plaintiff in error. It is sufficient to say, that the right of the court to direct a special verdict is discretionary (sec. 276 of code of civil procedure), and the refusal to •do so cannot be assigned as error.

Judgment reversed and cause remanded.

Brinkerhoff, Scott and Sutliff, XT., concurred.

Swan, C. X, did not sit in the case.  