Henry v. Cleveland, C., C. & St. L.R. Co.
| Decision Date | 23 February 1895 |
| Citation | 67 F. 426 |
| Court | U.S. District Court — Southern District of Illinois |
| Parties | HENRY v. CLEVELAND, C., C. & ST. L.R. CO. |
John G Irwin and William P. Early, for plaintiff.
John T Pye, George F. McNulty, James A. Connolly, and H. J. Hamlin for defendant.
Under the pleadings in this case the burden is thrown upon the plaintiff to prove all the material facts of his case, as stated in the declaration. But by this you are not to understand that he must prove all that he alleges in all the counts of his declaration, but all the material facts contained in any one of said counts essential to his right to recover. The court upon demurrer to the declaration has held each and every count thereof good, and that the plaintiff will be entitled to recover, if you believe from the evidence that any one or more of them is true as to all material allegations contained in such count or counts, as explained further on in this charge; but where two or more acts of negligence are alleged to have produced one and the same injury, the law is that it is not necessary to prove all of such alleged acts, and that the plaintiff may recover upon proof of one only, if it is shown by the evidence to have caused injury, and to have been the proximate cause of such injury. What these counts, severally considered, are, and wherein they differ from one another, you will find out by reading the declaration, which, together with the other pleadings in the case, you may take with you when you retire to deliberate.
And, when I say what I have already stated, you are to understand by it that the allegation contained in each and all of the counts of the declaration to the effect that the plaintiff was exercising due care and caution for his own safety, at the time he says he was injured, is a material and essential element of his case, which it devolves upon him to prove, as well as to prove all other material allegations made by him in any count of his declaration. The rule of law which requires this only goes to the extent of requiring proof of the facts and circumstances attending the alleged injury. If these show negligence on the part of the defendant from which the injury is a proximate consequence, and do not show contributory negligence on the part of the plaintiff, the prima facie case is made out in favor of the plaintiff, and puts upon the defendant the burden of refuting the negligence or injury charged, or the allegation of due care and caution for his own safety on the part of the plaintiff. You are therefore instructed that if you believe from all evidence before you that the defendant is guilty of negligence as charged in all or any of the five counts of the declaration, and that such negligence was the proximate cause of injury to the plaintiff, and that the plaintiff is not guilty of contributory negligence, you will find the issues in favor of the plaintiff. But if, on the other hand, you believe that the evidence does not show negligence on the part of the defendant, or does not show that the plaintiff was injured, or does not show that the plaintiff's injuries were the proximate consequence of the defendant's negligence, or does show that the plaintiff was guilty of contributory negligence, or failed to exercise due care and caution for his own safety, you will find for the defendant.
When I speak of 'negligence,' you are to understand that term to mean either failure to do what a reasonable and prudent person would ordinarily have done, or doing what such a person would not have done, under all the circumstances shown by the evidence. In other words, negligence is the failure to observe, for the protection or safety of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, and is actionable if it is the proximate cause of injury to another. And what is due care and diligence must be determined according to the facts and circumstances of the particular case. The law requires more care and caution on the part of persons handling, carrying, or using articles commonly known to be dangerous, and considers all explosives dangerous. Common carriers and all other persons owe this duty to their fellow men. I do not yield full assent to the contention that a common carrier or other person who handles or carries explosives, or keeps them on private premises, does so at his peril, and must be answerable for all injurious consequences, regardless of the degree of care and vigilance exercised in doing so, but I do hold that due care and prudence are required in this respect,-- such care and prudence as prudent and careful persons ordinarily exercise whose business it is to deal in these articles. It is a matter of common knowledge that insurers and merchants exercise greater care and caution as to the storage and use of explosives, combustible oils among them, than they do as to articles which are not commonly considered dangerous, and I shall hold it to be the law that the same degree of care and caution is required of carriers as between them and the general public. This is merely requiring of them ordinary care,-- the same degree of care and caution that ordinarily prudent men exercise in delivering and handling dangerous articles.
It has been held by the circuit court of appeals of this circuit that petroleum is not a dangerous agency of itself, but becomes such by subjection to a high degree of heat, or from actual contact with fire, and that, therefore, the shipment of such an article of commerce casts upon the shipper a certain duty to the public,-- that of providing a suitable vehicle for the petroleum in all respects adapted to the purposes of carriage, and able to encounter the usual risks of transportation, so that the petroleum in its transit shall not be exposed to the danger of taking fire from causes incident to its transportation reasonably to be anticipated. This is a rule which applies to carriers as well as to shippers, imposing upon them the degree and kind of diligence already stated, as to petroleum in their charge while in transit, and when detained on their premises by delays ordinarily incident to the transportation of articles of commerce. It requires the exercise of due care and caution on the part of railroads to prevent exposure of petroleum to great heat or contact with fire while standing on a side track in their yards, and such care on the part of their servants as may be reasonably necessary to protect the public from danger in this respect.
I yield my assent to the contention that a defendant who owes no duty to the plaintiff cannot be guilty of actionable negligence as to such plaintiff. For this reason, in actions like the one now being tried, the plaintiff must show what duty the defendant owed him, and a breach of it. But you are not to infer from this statement that the law imposes no duties upon railroads or common carriers except as to persons and property carried by them, and as between them and their employes, and other persons and corporations with whom they make contracts.
Besides obligations of this kind, the law imposes upon them,...
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...and a failure to do so is negligence. Derry Coal and Coke Company v. Kerbaugh, 222 Pa. 448, 71 A. 915; Henry v. Cleveland, C. C. & St. L. R. Co., C.C., 67 F. 426. A common carrier has the right to transport powder, but this does not include the right to subject persons to danger from its ex......
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