Campbell v. Duluth & N. E. R. Co.

• Decision Date: 19 March 1909
• Citation: 120 N.W. 375,107 Minn. 358
• Parties: CAMPBELL v. DULUTH & N. E. R. CO.
• Court: Minnesota Supreme Court

107 Minn. 358

120 N.W. 375

CAMPBELL

v.DULUTH & N. E. R. CO.

Supreme Court of Minnesota.

March 19, 1909.

Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

Action by Alice Campbell against the Duluth & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Syllabus by the Court

The general standard of care fixed by the law is commensurate care, or due care under the circumstances.

A railroad as a common carrier is required to exercise the highest degree of care, skill, and foresight for the safety of passengers consistent with the practical operation of its road.

The standard of care has due regard to the circumstances; that is to say, ‘in reference to each particular the highest degree of care which can be exercised in that particular, with reasonable regard to the nature of the undertaking and the requirement of the business in all other respects, must be exercised.’

A common carrier of passengers on a freight or mixed train is required to exercise the highest degree of care consistent with the practical operation of such a train.

A carrier having limited fitness and capacity to transport passengers, and whose primary business is to transport its logs, is not held to the standard of perfection of an ideal road, but must exercise the highest degree of care practicable under the circumstances.

Evidence of care customary among well constructed and operated roads of the same class is admissible to show diligence, in an action brought by a passenger injured while riding in a freight train of a logging road.

In this case it is held that whether defendant was a general commercial railroad or a logging road was a question of fact for the jury. H. Oldenburg and Davis & Hollister, for appellant.

Jno. Jenswold, Jr., for respondent.

JAGGARD, J.

Plaintiff was injured while riding as a passenger in the caboose of the defendant's mixed train. She had a verdict. The first controversy in this appeal is whether the record contains any evidence tending to show that defendant was a so-called logging road, as distinguished from the ordinary commercial carriers. The question is not clear, because the controversy does not appear to have been satisfactorily litigated. Counsel for plaintiff himself, however, in his own questioning on trial, assumed that defendant was a logging road. In his brief on this appeal he asks: ‘Is it for this court to license the use of such tracks [as defendant's] when owned or operated by the company primarily for the purpose of carrying its lumber? Is a passenger on such a road to assume risks which he would not on other roads?’ We have concluded that the record discloses enough to have made this a question of fact, to be tried by the jury.

The question then arises whether the court was in error in giving a charge which defined the duty of the defendant in the carriage of plaintiff to be that of the ordinary commercial carrier of passengers-‘to exercise the highest degree of care, skill, and foresight for the safety of plaintiff which was consistent with the practical operation of its means of transportation.’ More specifically, the court charged that: ‘In the carriage of the plaintiff, she assumed such sudden jars and jolts as are common and unavoidable in the starting or running of mixed trains; but she did not assume any risk growing out of any negligence resulting from the unevenness of the track or the failure to connect the air brakes on the entire train, nor did she assume the risk of injury by the negligence or want of care of the train crew in charge of the train, nor did she assume the risk of being injured by the breaking of the train in question.’ (The italics are ours.) The court charged, however, that when a passenger takes passage on a freight or mixed train he assumes all risk reasonably or necessarily incident to being carried by a method which he voluntarily chooses. It denied defendant's elaborate requests to charge, which, while not all verbally accurate or correct, were sufficient to direct the attention of the court before the jury retired to the question whether defendant was to be held to the standard of care by which the negligence of an ordinary commercial carrier of passengers is held.

It is clear on general principles, and it is the law in this state, that the test of care is not whether in degree it should be slight, ordinary, or extreme care, but commensurate care, due care under the circumstances. The adoption of this standard would logically result in the abolition of degrees of negligence. In a measure this has followed. With respect to carriers, however, the traditional standard appears to have survived. In case of ordinary railroads affording regular passenger service, soliciting such traffic, holding themselves out as able to take care of it, and running through passenger trains of great weight at tremendous speed, commensurate care is regarded as supreme or the highest practical care. The standard care, however, has proper regard to the circumstances; that is to say, ‘in reference to every particular, the highest degree of care which can be exercised in that particular, with a reasonable regard to the nature of the undertaking and the requirement of the business in all other respects,’ must be exercised. Dodge v. Boston Ry. Co., 148 Miss. 207, 218, 19 N. E. 373,2 L. R. A. 83, 12 Am. St. Rep. 541.

It is not accurate to say, as is often said, that certain classes of cases involve a relaxation in the degree of care exacted, or that they constitute exceptions to the general rule requiring supreme care. The degree of care is the same. Certain circumstances are recognized as differentiating the result of its exercise; that is, there are particular situations in which commensurate care does not require of certain carrier service the same tracks, equipment, and operation as is exacted of main trunk lines operating exclusively passenger trains. Thus a...