
    Darius Talmadge v. The Zanesville and Maysville Road Company.
    Where passengers, injured by the upsetting of a coach, have recovered against the proprietors, the damages assessed in such action can not be recovered, by the coach proprietors, from the road company, for failing to keep the road in repair, which, in some degree, occasioned the accident; but a recovery may be had for the injury done to the coach.
    This is a writ of error to the Suprerr e Court of the county of Fairfield.
    Talmadge brought his action against, the road company, alleging that he was the proprietor of a coach for passengers, which was upset by reason of an insufficient road made by the *company, and whereby his coach was injured, and a passenger, by the name of Maury, hurt, who recovered of him a judgment for $2,300, which, with the other damages, Talmadge now claimed to recover from the company in this action.
    On the trial, in the common pleas, Talmadge offered to the jury the record of the recovery against him by Maury, the passenger. The declaration, in that case, counts against Talmadge for his negligence, in overloading his coach, driving in the night without lights, etc.
    The road company objected to the admission of this record, but the court overruled the objection, and admitted the evidence.
    A verdict was had in favor of Talmadge, and judgment for $2,300. On error to the Supreme Court, the judgment of the court of common pleas was reversed, and this writ is now brought to reverse the judgment of the Supreme Court.
    H. H. HujíIter, for plaintiff in error:
    The ground assigned by the court on the circuit, for the reversal, was exclusively upon the admissibility of the record of Maury v. Talmadge in evidence to the jury, the court holding it to be incompetent.
    The reason assigned against its competency, we understand to be, that the gist of the action of Maury v. Talmadge was the negligence of Talmadge. Hence, if Talmadge be now permitted to recover over, against the road company, the damages which Maury recovered against him, he will, in effect, be allowed to recover damageB against the road company for his own neglect. And this, we understood the court to say, could not, on principle, be allowed in any case.
    It is in holding these propositions, we suppose the court to have erred; and we do not now propose to discuss any other questions which might arise upon the record. For, although we would claim that, taking the whole record, or the whole charge of the court together, there is no error of which the ^opposite party can avail himself, if the one above referred to be not such! yet, surely, any others which may exist would only result in remanding the case. But, if the error above named be really an error in the case, it takes away the cause of action, and is final.
    In order to be clearly understood in what we have to say upon the question for consideration, we wish, in. the first place, to draw the attention of the court to the different degrees of negligence, by reason of which a carrier of passengers and one who'obstructs a highway, are, in law, holden liable in damages to others, who suffer an injury from their want of care.
    The carrier'of passengers is holden to the observance of the-utmost degree of care, and is liable to those for whom he undertakes, for injuries resulting from the slightest negligence. Story on Bailments, 879, where the authorities are collected. McKinney v. Neil, 1 McLean, 552.
    On the other hand, one who obstructs a highway is not liable in damages to one injured by the obstruction, unless it appears that the party injured, in passing the obstruction, himself, used ordinary care. The negligence of the party, in placing the obstruction, may be gross. He may even place it by design, as an obstruction^ yet, if a passer by will, heedlessly, and without ordinary care, run upon it, and be thereby injured, he has no right to complain, and can not make him who transgressed in placing the obstruction, respond in damages. Smith v. Smith, 2 Pick. 621.
    But if, in passing such obstruction, one, in passing, shall use ordinary care, and receive an injury by reason of the obstruction, he is clearly entitled to his action against the party placing the obstruction. Co. Lit. 56, a; Buller’s N. P. 78.
    These propositions are indisputable, and we think it necessarily flows from them, as a logical consequence, that a carrier may be liable to his passenger for an injury happening under-slight negligence on the part of the carrier, but chiefly depending upon an obstruction to the highway, placed by a third party. And that, if the carrier, in passing the ^obstruction, had used ordinary care, the party placing the obstruction will be liable over to the carrier.
    If we remember accurately, it was said by the court, in deciding the case upon the circuit, that the liability of Talmadge, the carrier, to Maury, his passenger, was founded upon the neglect of Talmadge, and that Talmadge could not, in law, have been liable to Maury, if it had appeared that the obstruction in the road gave rise to the injury. That in that state of the case, the remedy of Maury would have been against the road company, who caused the obstruction, and not against Talmadge. The idea was also advanced, we believe, that such evidence as would fix a liability .in favor of Maury, against the road company, would be a defense in behalf of Talmadge against the claim of Maury.
    We may not have gathered the exact expression or idea intended to have been conveyed, but believe it was, essentially', as above stated.
    The views thus attributed to the court are, obviously, at variance with the positions wo have expressed above, and which, we think, are sustained by authority and reason.
    We think it is very clear that such a state of facts might readily exist, as would entitle Maury to his action against either Talmadge or the road company.
    For instance, if Talmadge, in passing the obstruction, did not use the highest degree of care, and, in consequence of the want of such care, the accident happened, Talmadge would be liable to Maury. So, if Talmadge, passing with Maury in his coach, used ordinary care, and, in so passing, the accident happened, in consequence of the obstruction, the road company would be liable to Maury. It is very certain, at all events, that, under such circumstances, the road company would be liable to Talmadge for any injury he might sustain to his person or property. And, if so, it is difficult to perceive upon what principle Maury, passing in the eoach, and receiving injury, should be excluded from having redress against the road company, upon the same footing that Talmadge would. Although in the coach, as a passenger, yet he would bear with *him his personal rights. And if the vehicle by which he was conveyed was, at the time, managed with ordinary care, it must be admitted that he, passing in that vehicle, would be passing with ordinary care. Yet, because Maury would thus have his right of action against the road company, under these circumstances, it by no means follows that he would be deprived of his right of action against Talmadge, for not exerting the highest degree of care, which it was Maury’s right to exact of him.
    This view brings us close up to the main point relied upon against what we claim, to wit, that Talmadge was bound to Maury, to exert the highest degree of care, and if he did not do so, and has responded to Maury for the consequences, he has only responded for his own negligence, according to the legal nature of the engagement he was under to Maury; and, hence, that he ought not to be permitted to recover back, from the road company, the damages’ he has had to pay for his own neglect.
    There is, we admit, in this mode of stating the proposition, a good degree of plausibility. Yet it is not we think, a very difficult matter to show, that it is unsound, and wholly untenable.
    Talmadge, it is true, incurs the liability on the ground of negligence. But that degree of negligence by which he was liable-was, or might have been, a purely legal, technical negligence; not negligence in fact, but negligence merely because it was possible, by the exertion of the utmost prudence and care, to have avoided the difficulty.
    The highway is obstructed; and, in consequence of the obstruction, more vigilance and care is necessary to pass it safely than would otherwise have been necessary. As between the carrier and his passengers, the carrier is bound to apply all the care necessary under the existing circumstances to insure safety. But the obstruction has been wrongfully placed there by a third party. .It may be passed with extreme care, but can not, with reasonable and ordinary care, in safety. A party attempts to pass it — must, in the progress of his necessary and ^lawful businses, pass it. He uses ordinary, and reasonable care, but suffers an injury. Now, in common sense, reason, and justice, what has been the real and true cause of the injury, and upon whom in fact, and truth, does the blame rest? It would seem almost'impossible not to seethe subject in its proper light.
    In morals, upon whom, of the parties in fault, should the ultimate burden rest? One is chargeable with no moral neglect of duty; the other has done an act which all must pronounce an outrage upon the public. Shall he who has committed the real wrong,, and is, in truth, the only one to whom guilt attaches, be suffered to shield himself from liability, by the pretext that is here set up, that the party who seeks to hold him accountable is, himself, chargeable with negligence-with a violation of his legal duty to another ?
    This idea, or the idea of his defense, is out of place in such a case. It may, properly enough, be applied in cases between wrong-doers who have acted -in concert, or between doers of positive wrong, whether acting in concert, or independently. In such cases, or between such parties, the defense would be in place.
    The breach of duty, on the part of Talmadge, as between himself and Maury, was more in the nature of a breach of contract than a wrong. It arose out of contract, and an action upon the contract might have been sustained for the same damages.
    It may, therefore, with all propriety, we think, be said that the wrongful act of the road company has wrought upon the defendant a breach of his contract, thereby causing him a special damage and injury, which, otherwise, would not have happened to him .and, therefore, the burden of whicü they should sustain.
    Cases may readily be supposed, involving the same principle, but, perhaps, better adapted to illustrate the principle than the one before the court.
    A common carrier of goods is liable, on legal principles, to his employer, for loss or injury to the .goods, although the loss ^happen without his fault, and through the wrongful act of a third party. A cargo,,of goods is received by a carrier, on his canal-boat, to be carried. They are stolen by a thief-destroyed by an incendiary-or, if they are to be carried upon a canal owned by an incorporated company whose duty it is to keep the canal in navigable order, they may be wet and damaged, by reason of the canal not being in proper repair. The owner brings his .action on the case against the carrier, and declares against him, in the usual form, that the loss or injury happened by “ Ms mere carelessness and negligence.” The owner recovers, of course. Has the carrier no redress against the wrong-doer? The gist of the action, in contemplation of law, is negligence. In the action of the carrier, against the real wrong-doer, may he not, as a measure of homages, give the record of the recovery against himself in evidence? Surely we think he may. All other questions of fact are open. The record, offered as a rule of damages, leaves undisturbed the question, whether the supposed wrong-doer be in fault or not; and the averment, in the declaration, against the carrier, of negligence, although legally true, can form no just excuse to the wrong doer.
    We can not perceive a shade of difference, in principle, between such a case and the one at bar. But we are not without authority in analogous cases.
    A sheriff is charged with the custody of a debtor upon execution. If he voluntarily suffer the prisoner to escape, he is liable to the plaintiff in damages. In such case the escape being voluntary, the sheriff has no recourse upon the debtor. But if the sheriff suffer the prisoner to escape by negligence, the sheriff may recover over against the debtor who escaped, and may show the record of the recovery against himself as a measure of damages. 10 Mass. 59. Yet in the action against the sheriff, negligence is the gravamen. The substance of the thing is that the debtor who escaped, is the real wrongdoer.
    In the ease of the Commissioners of Brown County v. Butt, Sheriff, 2 Ohio, 355, the sheriff was held liable for a negligent *escape, which happened in consequence of the want of a sufficient jail. He was allowed to recover over against the commissioners of the county, whose duty it was to provide a sufficient jail; and the record of the recovery against the sheriff was the measure of damages.
    Here, again, the real thing is duly regarded.
    It will, of course, be remembered that all the benefit we claimed from the introduction of the record was, to use it as the measure of damages. This could obviously be done without any prejudice to the rights of the parties, upon the question of fact as to the cause of the injury. As to this, it could have no legal tendency one way or another. But if it had, it would be against the party offering it. The plaintiff would be bound, in order to entitle himself to recover, to satisfy the jury by proof that the obstruction produced in the road was the cause of the injury; and the defendant, on the other hand, would be at liberty to show that it arose from the want of ordinary care on the part of the plaintiff.
    In conclusion, we submit that the record was properly received in evidence, and that although the court may have erred in charging the jury 'that they might apportion the damages, yet the whole charge, taken together, placed the law properly before the jury.
    At most, if the charge was erroneous in respect to apportioning the damages, a reversal for that cause alone leaves us entitled to have the cause remanded for further trial.
    H. Stanbery, for defendant in error:
    A carrier of passengers is not an insurer. The law for the protection of his passengers imposes upon him the duty of using the the greatest degree of care. McKinney v. Neil, 1 McLean, 550.
    Where a passenger is hurt, he can only recover of the proprietor by proof of the want of that degree of care which the law requires. The recovery in Maury v. Talmadge must have proceeded upon such proof. If Talmadge had shown *that the upset was caused by an insufficient road, without fault on his part, there could have been no verdict against him.
    The verdict and judgment in that case, therefore, establish his negligence-his tortious omission of that degree of care, in the transport of his passengers, which the law demanded.
    If the road company failed in their duty by not providing a safe road, does that excuse Talmadge for failing in his duty to use extreme care in driving his passengers over it? Shall the company, though equally in fault, indemnify Talmadge from the damages which a jury awarded against him for his own negligence ?
    If that be so, there is an end to the safety of the passenger. The coach proprietor, when he approaches a bad road, at the very time when the extreme care, required of him by the law, is most necessary, may very safely omit that degree of care, with the certain assurance that, if he use but ordinary care, every cent which the injured passenger recovers from him he can recover, back from the supervisor or road company; It would be against the policy of the law, and tend to encourage negligence in the performance of a duty iii which the lives and safety of passengers are-concerned.
    Where a passenger is injured by careless driving over a bad road, he has an election which to sue, the road company or the coach proprietor. Both are guilty of negligence, and the passenger, being wholly without fault, may look to either; but the road company can not have recourse over upon the coach proprietor, nor the coach proprietor upon the road company, either for full indemnity or contribution. The law will assist neither, as-both have been in fault.
    It is a well-settled principle that one tort feasor shall have no contribution against another.
    Again, where an injury happens from negligence of two or more, no one of thorn, who has been at all in fault, or guilty of any negligence, can look to the other, although that other is the primary cause of the injury. 22 Eng. C. Iv. 280.
    *It is said, in behalf of Talmadge, that the law requires from the person passing over a highway only ordinary care, and if, with such care, an injury is sustained by reason of an unsafe road, he may recover against the person whose duty it is to keep up the road.
    
      We admit such to be the rule, and, so far as the immediate damages are concerned (that is, the breaking of the coach, etc.), Talmadge may recover of the company, although he only used ordinary care. Avery different question arises upon this transcript.
    The damages recovered in that are consequential. They are given against Talmadge, not because of an unsafe road, but that, in conducting his coach over such a road he was guilty of negligence, and omitted the degree of care which the law imposes upon the carrier of passengers.
    If the traveler uses no more than ordinary care he is in no fault; and if injured, the law will, therefore, relieve him; but if the carrier of passengers uses only ordinary care he is in fault, and the law will not assist him.
    Again, how does it appear that the verdict in Maury v. Talmadge proceeded upon the ground, or proof, that ordinary care was observed by Talmadge, making him answer only for the want of that greater degree of care which the law requires? Nothing but the transcript of the record was produced, and that shows a case of carelessness of the most culpable sort, overloading, want of lights, etc. No proof was added to show on what sort of carelessness the jury, in that case, proceeded ; only it did appear afterward that there was proof of carelessness, on the part of Talmadge, in the case of Maury v. Talmadge, which was not before the jury in the case of Talmadge v. The Road Co. Talmadge undertook to prove to the jury, in his ease against the road company, that he used ordinary care. Admit that he succeeded in establishing that fact in this case, does it follow that he is entitled’ to recover the damages which were assessed by another jury upon other proof? How could this jury determine upon what ground these damages were assessed, not having before *them the proof of carelessness which was made to that other jury? How do we know the degree to which the damages were aggravated by the proof then made of Talmadge’s negligence?
    All we know about that case is, that the declaration alleged culpable negligence; that it was sustained by proof of which this jury had no knowledge. The verdict of that jury was given on one state of facts; the verdict of this jury on another; and yet, it is claimed that this jury shall respond to those damages.
    It may be that the verdict in Maury v. Talmadge was wrong, against the weight of evidence, or founded upon the testimony of perjured witnesses. If so, it'is Talmadge’s misfortune, not the road company’s. He had an opportunity of being heard — they had nob; and the verdict, right or wrong, was against him, not them.
    Mr. Hunter admits the record in Maury v. Talmadge establishes negligence in fact against Talmadge. He attempts to find cases in which the party, against whom negligence is so established, may recover over against some third person, and use the record to ascertain the quantum of damages.
    First is his case of a common carrier. Now the clear distinction between that case and this is, that the recovery against the carrier does not establish the fact of actual fault or negligence in the carrier. Ho is an insurer.
    Next is the case of escape. I am indebted to the counsel for the suggestion of this case, as it furnishes an illustration of the difference between an actual fault and mere legal carelessness.
    If the escape is voluntary — that is, if the sheriff is actually in fault, he can not recover over against the debtor. If it is involuntary, he can.
    But, suppose there were actual negligence in the involuntary escape, why should not the sheriff recover over against the debtor?
    That right stands upon a different ground from the right to recover in the case at bar. The sheriff is made liable to the *creditor for the debt, and if he recovers over against the debtor, he recovers no more than the debt. No one pretends that ,tho debtor paid or discharged his debt, by running away or breaking jail.
    Why was the sheriff allowed to recover over against the county, in the case of the Commissioners of Brown v. Butt, 2 Ohio, 355? Sinrply on the ground that there was no fault in the sheriff. He, like the common carrier, is made liable in any event. Whether he can recover over, depends on the question whether he had been actually in fault. For if his act has contributed, even in a slight degree, to the tort, he can have no contribution from another who is even more in fault than himself. 22 Eng. Com. Law, 280.
    T. Ewing, for Talmadge, in reply:
    There seems to be an impression that this is a case of a wrongdoer attempting to recover over against another wrong-doer, damages to which he has been subjected, partly, at least, by his own unlawful act; but nothing can be further from the truth of the case. The action of Maury v. Talmadge was not founded on tort, but contract. It was a contract, which Talmadge can show, entirely consistent with that recovery, he took the ordinary means, and used ordinary care and diligence to comply with, and which he would have complied with but for the obstruction placed in the road by the plaintiffs in error. They, by their wrongful act prevented its performance and subjected him to damages for its breach. The injury was consequent upon the wrongful act of the road company. The damages flowed directly and immediately from the injury.
    The undertaking of Talmadge was analogous to that of a common carrier, and the declaration contains like allegations of negligence. Yet no one doubts that the carrier, after a recovery against him, might recover over against one who had caused injury to the goods which he was transporting, precisely as he could recover for his own goods, and upon the *same state of facts. The owner, it is true, may, if he choose, have his action against the wrong-door, but he is not compelled to resort to him. He may recover against the carrier, and the carrier may recover over. And neither in the case against the stage proprietor, nor the common carrier, is negligence the gist of action. It need not even be proved. The overturning of the stage and the personal injury in the one case, and the loss or damage to the goods in the other, is sufficient. The defendant is thereby shown to have failed in the performance of his contract, and must show an excuse; in the case of the carrier, that the loss was sustained by the act of God, or the public enemy ; in the case of the stage contractor, that the utmost possible diligence and caro to effect.a performance, and that the breach of contract was occasioned by some casualty which that extreme care and diligence could not prevent.
    This is the law of the two cases, as laid down in the books. I can see no distinction between them as to the right to a recoveiy over, except in the degree of proof, nor any incongruity in allowing a recovery in either one or the other of the cases.
    The law recognizes a distinction as to the degree of care required from individuals in different situations, the want of which will render them liable to others for injuries, or disable therm from recovering for injuries occurring to themselves. It is not for us now to say whether there is anything sound or rational in the distinction. The laws of all civilized countries have recognized it, and it is perfectly well marked and defined in our own legal system. In some cases no more than ordinary care is necessary; in others, the .utmost care and vigilance. For example, if Talmadge, passing with his coach, had given a seat, as a mere favor, to any person, he is not free from all obligation to such voluntary passenger; but if he become liable to him for an injury happening, it must be upon the ground of negligence merely, not of contract, and that negligence must be gross, and it must be expressly proved. In that case the stage-owner would be bound to use ordinary *eare, such as a man of common prudence would use under like circumstances; and if he be guilty of gross negligence, and an injury happen, he will be liable; for, though he may risk his own neck as recklessly as he pleases, he has no right wantonly to expose his voluntary passenger to danger and injury.
    But in the case of Maury, Talmadge had bound himself, by contract, to carry him safely, for which Maury paid a valuable consideration. If he did not carry him safely, he had failed in the performance of his contract, and was liable to all the damages which Maury sustained by reason of the breach, unless he could show, by way of excuse, that he was well provided with the means to carry his contract into effect; that he made all reasonable exertions to that end, and that at the moment the injury happened he used the utmost care to prevent it.
    These cases are separated from each other by a broad margin, perfectly well defined in the law, analogous to that which separates the deposit of goods for compensation from the deposit for the mere accommodation of the depositary.
    Now, there is a distinction similar to this, and equally well defined, in the degree of care which will enable an individual to recover against a person obstructing a highway, and the care that will excuse him from damages on' his contract with his passenger.
    This proposition does not seem to be controverted by the counsel for the road company. If it be correct, then Talmadge, on the very same evidence on which Maury has rightfully recovered against him, could also recover against the road company, for the injury done to Ms own person, if he had suffered such injury. This does not seem to be denied by counsel. Then the only matter in controversy is, whether, upon these conceded propositions, Talmadge, being able to recover for an injury done to his own person, he may not, in some supposable state of the evidence, also recover for an injury done to him in the person of another. If his wife or servant, a passenger in his stage, were wounded, and he incurred a surgeon’s bill, for setting a joint or amputating a limb, could *not he recover damages to the amount of that bill, upon evidence on which Maury, his passenger, might also recover against him? I think it very clear that he might. The degree of care to exonerate him, in the one case, and in the other, to charge the road company, is very different. If he used ordinary care, he might charge the road company; but he must have used the utmost care in order to exonerate himself against his passenger. If he may recover for such expense necessarily incurred by him, because of an injury done to his wife or servant, may he not also recover for a like expense, necessarily incurred by reason of an injury done his passenger; that is, if the injury be the direct and immediate, and not the remote and contingent, consequence of the wrong done him ? The verdict and judgment might not be evidence for Talmadge against the company, if the value of Maury’s knee could be exactly fixed and shown as the measure of damages, but that is not the case. The contract of Talmadge with Maury was broken by reason of the unlawful act of the road company. That was the injury which Talmadge sustained, and it was a direct and immediate injury, produced and consummated at the moment. Is he less entitled to recover for it than if it had been a wound upon his own person ? Suppose a mail contractor, liable to a penalty for failing to make his time, some one unlawfully places an obstruction in the road which prevents him, and he thereby incurs the penalty. This injury is more rem'ote than the one of which we complain, but it seems to me that ho may recover to that extent. It is the damage which be has suffered by reason of the unlawful obstruction, and not more remote than the surgeon’s fee for setting a limb, broken by the fall of a horse.
    I can see no objection to the fight of Talmadge to recover, unless it arise from the doubt whether Maury would elect to bring his action against him, or against the road company, for the injury to him. But he has elected to take his remedy against Talmadge; and the record, rejected by the court, shows that fact. We suppose that his recovery against Talmadge could be well pleaded in bar to an action by him against the *road company, for the same injury, the judgment being satisfied.
    There are many cases, some even in tort, in which a recovery between third persons can be given in evidence, for the purpose of showing the amount of damages to which a plaintiff is entitled.
    If A. convert the goods of B., and C. take them from A., as a trespasser, B. may have his action against A. or C., and recover the value of his goods; and A. may have an action against C. for the trespass, but may not recover the value of the goods, becauso they are the property of B. But, if B. bring trover against A., and recover, the property of the goods is thereby transferred to A., and A. may thereupon recover the value of the goods against C.; and he may give in evidence the record of the case of B. against him, on the trial with C., to show that ho is so entitled.
    In the present case, Talmadge offers the record to show the amount of damages he sustained, by reason of the wrongful act of the defendants, and for no other purpose. The wrongful act of the defendants, and that the damages recovered by Maury are the result of that wrongful act, are facts to be proved, of course, by other evidence.
    It is admitted, by defendants’ counsel, that there is a difference in the degree of care and skill which is necessary to exonerate a carrier of persons from damages for an injury done to hie passengers by the upsetting of the coach, and the care and skitl which is necessary to entitle the person passing upon a road to recover for an injury done him by an obstruction wrongfully piaced in the road. The distinction is strong and marked. In case of a person passing the road, he may recover damages for an injury sustained by reason of an obstruction, if he use ordinary care. In the case of the carrier of passengers, he must use the utmost possible care, and he must also according to the language of Lord Ellen borough, in Jackson v. Tottell, 2 Stark. 37, “ have used the best and soundest judgment under the circumstances.” 5 Pet. 56, and cases there abstracted. Thus, even an error of judgment, on the part of *the driver, at the moment of the emergency, though he be skillful and experienced, renders the owners liable.
    The action which is brought for the injury against the carrier is not an action of tort, or sounding in tort; it is an abuse of legal terms so to designate it. It is an action upon contract, and one of the most strict contracts known to the law. A breach of it is no 
      tort; not nearly so much as the breach of a contract to pay money. For the party entering into it may have made every prudent and effective arrangement to comply with it; he may have the best coach, the best harness, and the best driver that can be procured; and the driver, even at the moment of the accident, may be attentive and vigilant, “ but if he fail to use the best and soundest judgment under the circumstances,” and an injury happens, the owner is liable. What, then, have we to do with tort feasors, or the law relating to them, in this case?
    The counsel for the defendants admits the rule as we have laid it down, and that, “ so far as the immediate damages are concerned, that is, the breaking of the coach, etc., Talmadge may recover of the company, although he used only ordinary care;” but, he adds, “ a very different question arises under the transcript.” Now I am wholly unable to perceive the difference.
    Talmadgo may recover against the road company if he used ordinary diligence; but what is he to recover? If ho may recover at all, he must recover to the full amount of the injury done him, actually and immediately, by the wrong of the defendants. Though the injury be done at once, and on the instant, the amount of damages may not be ascertained immediately. For instance — his coach is broken; for that, say counsel, he may recover. He is personally injured; for that, also, I suppose, they will admit he may recover. So, if his wife or his child be injured. But the amount of those damages can not be ascertained until he has paid the surgeon’s bill for attending them, and dressing their wounds, etc. And if he thinks the surgeon’s charges too high, and he contests his bill in a suit, the amount of the recovery against him, by the surgeon, would ^settle this item of damages, done at the moment of the upset, but not ascertained till verdict and judgment.
    But here was a passenger in the coach of Talmadge, for whose safely he is responsible; and whether he is his insurer at all events, or his insurer against the- particular wrong of the defendant, in manner and effect, as it produced the injury, is, I humbly conceive, a matter of no importance whatsoever. The injmry of the passenger formed part of the damage done to Talmadge by the upset, as absolutely and immediately as the damage done to his own person, or to his own wife or child. This damage was done instantly, but the extent of it was not ascertained until the recovery in the suit of Maury v. Talmadge.
    But it is said, that as the record in the case of Maury v. Talmadge shows that Talmadge Was guilty of negligence, he therefore shall not recover as to that matter against the road company. Hot us not be misled by words. The counsel has admitted, that, in the very transaction in which this charge of negligence would be sustained, as between Maury and Talmadge, the requisite care and diligence may have been used by Talmadge to enable him to recover against the road company, for what he calls an immediate injury to himself. Therefore, what was negligence as between Maury and Talmadge, is not negligence when the question arises between Talmadge and the road company.
    What, then, I ask, has the charge of negligence, in the declaration in the case of Maury v. Talmadge, to do with the case now pending? It does not affect the question in any form whatever. The negligence then charged may, or it may not, have been that kind of negligence which would exonerate the company; but as it does not, necessarily, exonerate them, the record of the recovery may be admitted in evidence precisely in the same manner, with the sapue effect, as if no charge of negligence were contained in it. The record proves nothing but an item of damages sustained by Talmadge; it does not prove, or tend to prove, that the defendants are, or are not, liable for those damages. The evidence on that trial *could be used no farther than merely to show that this particular injury was the ground of the action, and the cause of the recovery.
    But what,.in effect, is the charge of negligence in the declaration, in the case of Maury v. Talmadge? Surely with reference to the contract and the law which governs the contract. Suppose the effect which the law attaches to it had been set forth in terms in the declaration, and the breach in like terms; that is, in substance, thus: “Yet the said defendant, not regarding his promises and undertakings, did not use the utmost possible care to carry and convey the said plaintiff safely and securely on the said coach, on his said journey, but wholly failed so to do; and, on the contrary thereof, used no more than ordinary care and diligence, etc.” Could it be contended that here would be such a charge of negligence that the very declaration, in the case in which the damages sustained by Talmadge was shown, would, in terms, exclude him from giving the record in evidence? And yet, the general word negligence, in this declaration, means, in legal contemplation, nothing more than a want of the utmost possible care and the utmost human foresight; and the want of skill charged in the driver is only a want of talent or ability to exercise “ the best and soundest judgment under the circumstances.” As referable to the road company, this is not negligence and want of skill. These words, in the declaration in Maury’s case, have no such meaning as applicable to the road company, and it would be merely sticking in the bark to consider them transferable from the one case to the other-give the words in the one case the sense which they legally bear only in the other.
    It is admitted, by counsel, that if Talmadge ,bad been a common carrier, and had in his vehicle the goods of a third person, which were damaged by the upset, and the injured person had recovered against Talmadge the value of the goods, the verdict and judgment against Talmadge could be given in evidence by him in this suit; and he admits, in another part of his brief, that Talmadge could recover, too, against these defendants, even in a case where Maury might have recovered against *him. And why? Because, he says, the common carrier is liable at all events. Now, I do not see the force of this distinction. Talmadge was liable to Maury under circumstances in which the defendants are liable to him, and what matters it whether his liability, over to others, is or is not unlimited? What has the defendant to do with that? The admitted case of the common carrier entirely disposes of the objection that these damages are remote, not immediate. They are just as much the instantaneous result of the injury in the case of the broken bone as of the broken crate. The amount of damages is alike determined by verdict and judgment.
    But the learned counsel contends that it is against public policy to suffer the carrier of persons to recover over against an individual who has placed obstructions in the road, the damages which his passenger has sustained, and which he has been compelled to pay, by reason of the obstruction. And he urges, if such recovery over be allowed, that such carriers will take small care of the safety of their passengers. Now, I do not perceive the danger of such effect following from allowing the recovery, any more than there is from allowing the carrier to recover when his wagon is upset by a like cause and the goods damaged j but to deny the recovery will result in gross injustice. It is no matter whether the obstruction be placed in the road carelessly or maliciously; and let the law be as counsel contend, and one man, by obstructing a highway, either through negligence or malice, may ruin another, and, at the same time, render himself in no wise liable; and that, too, in a case where the injured person has used the ordinai’y care which a prudent man would use to avoid the obstruction.
    The allegation that this is a wrong on the part of Talmadge, which thus renders him liable to Maury, that it was his own fault, his own negligence, is, again let me observe, as between these parties, wholly without foundation in the case. The action was not upon a wrong, but a contract. Talmadge agreed to use more than common diligence, and, if he did not do so, to be *liable to Maury ; but he made no such agreement with the defendants, and they have no right to claim its performance of him. It is a tort on the part of the road company as to Talmadge — a failure to perform a contract as between Talmadge and Maury.
    The last charge complained of by defendants, namely, that if Talmadge and the road company were equally in fault, the jury might apportion the damages, is, I think, against law; and it is, also, clearly against the rights of Talmadge. If he were entitled to a recovery, it was of the whole and not half the damages, and the defendants are not injured by that part of the charge.
   Read, J.

The record shows that Talmadge was the proprietor of a line of stages running upon the road of said company, and that, in consequence of the negligence of the company in not keeping their road in proper repair, one of his coaches was upse^ to the great damage of a passenger in said coach. That the passenger, Matthew F. Maury, sued Talmadge for carelessly and negligently upsetting him, and obtained, in the circuit court of the United States, a verdict for $2,300, which amount, together with $130.51, the costs, Talmadge has paid. Talmadge, thereupon, brings this suit to recover back the sum so recovered against him, or, at least, a part of it, upon the ground that the wrongful act of the road company was the cause of the upsetting of his coach, and that the upsetting of the coach occasioned the injury to the passenger for which he was amerced in damages.

The court below admitted the transcript of the recovery of Maury against Talmadge as an item of evidence to show the amount of damages which he should recover from the road company. The court below admitted the transcript as evidence in the case, and charged, that if they found the Zanesville and Maysvillo Road Company had not kept their road in good repair, but had been guilty of negligence, the jury would be authorized to apportion the damages which Maury had sustained *by the

negligence of Talmadge, and should return a verdict for such amount, so found and apportioned, against the road company.

The jury, under this charge, returned a verdict against the road company for §2,300, and for §130.51 costs.

The road company prosecuted a writ of error,-and the judgment below, for the amount of this verdict, was reversed in the Supreme Court. To reverse this latter judgment this writ of error is prosecuted.

The whole question is simply this : whether among wrong-doers, where damages have been recovered against one, an apportionment may be had among the several wrong-doers, and each be compelled to contribute?

A carrier of passengers, for hire, is bound to exercise the highest possible degree of care; and if, by the slightest negligence on his part, an injury is sustained by a passenger, he can recover the amount of damage sustained.

No damage, however, could be recovered against Talmadge unless there had been negligence, or some wrongful act on his part, which occasioned the injury. This negligence was proven in the circuit court, and there was evidence to the same effect on the trial of this case.

Talmadge now says to the road company, if you had not been negligent in not keeping your road in repair my coach would not have been overturned, and no damage would have been recovered against me. The road company may say, with equal truth, to Talmadge, unless your coach had been negligently driven it would not have overturned. Both were more wrong-doers. The passenger selected Talmadge, with whom he had contracted for his safe transportation, and recovered against him. .

Now, there is no principle of law upon which Talmadge can compel the road company to respond, in damages, for his wrongful act. The injury which Talmadge sustained, directly, by the negligent act of the road company, may be recovered.

*This is the law. And if the court should permit carriers to recover the damages from the owners of bad roads, for injuries consequent upon the negligence of such carriers, there would be very little safety for passengers.

Judgment affirmed.  