International & G. N. R. Co. v. Welch

• Decision Date: 04 December 1893
• Citation: 24 S.W. 390
• Parties: INTERNATIONAL & G. N. R. CO. v. WELCH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

24 S.W. 390

INTERNATIONAL & G. N. R. CO. v. WELCH.¹

Supreme Court of Texas.

December 4, 1893.

Certified questions from court of civil appeals, first supreme judicial district.

Action by Mat Welch against the International & Great Northern Railroad Company. Certified questions.

G. H. Gould, for appellant. Brown & Ewing, for appellee.

BROWN, J.

Appellee sued appellant in the district court to recover damages for an injury alleged to have been received while riding upon appellant's passenger train as a passenger. The court of civil appeals for the first district has certified to this court the following questions: First. Whether or not, in such a case, it is correct to charge the jury that the carrier must use "all possible care," without explaining or qualifying the sense in which the word "possible" is to be taken. Second. Whether or not the requirement that such care should be used to provide for a "safe conveyance" is correct? Third. Whether or not the failure to more fully explain the language used was positive error, or was simply an omission which should have been supplied by the request for a special charge?

We will consider the first and second questions together. It is not a correct statement of the law to say that a passenger carrier is bound to "use all possible care" to provide for the safe conveyance of passengers. Our supreme court has laid down the correct rule of liability in Railroad Co. v. Halloren, 53 Tex. 53, in which it is said: "Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them as would be used by very cautious, prudent, and competent persons under similar circumstances." This rule of liability is sustained by the best text writers and nearly all of the adjudicated cases. Hutch. Carr. §§ 500-502; 2 Shear. & R. Neg. §§ 495, 496; Cooley, Torts, p. 768; Stokes v. Saltonstall, 13 Pet. 191; Sherlock v. Alling, 44 Ind. 201; Farish v. Reigle, 11 Grat. 709; Hall v. Steamboat Co., 13 Conn. 326; Derwort v. Loomer, 21 Conn. 253; Tuller v. Talbot, 23 Ill. 361; O'Connell v. Railway Co., 106 Mo. 482, 17 S. W. 494; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266; Pennsylvania Co. v. Roy, 102 U. S. 451. Any number of adjudicated cases to the same effect might be added, but these are deemed sufficient to show that the rule laid down is abundantly supported by the best authorities. In Railroad Co. v. Halloren, supra, after stating the rule of liability as above quoted, Justice Bonner, delivering the opinion, said: "This, though, is not to be understood to require of the company every possible precaution which ingenuity might suggest, or the skill of science might afford, by which accidents may be avoided, but that it shall adopt such precautions of known value as have been practically tested, and should employ such skilled labor, service, and experience as is reasonably within its power to have secured." Mr. Hutchinson, in his excellent work on Carriers of Passengers, (section 501,) says: "Although the form of expression is sometimes varied, and the rule is stated as requiring `the greatest possible care and diligence,' `the utmost care and diligence of very cautious persons,' `the most perfect care of a cautious and prudent man,' and other similar phrases, the real meaning intended by them all is that the care and circumspection to be required is the utmost which can be exercised under all the circumstances, short of a warranty of the safety of the passengers." And in section 502 of the same work it is said: "When it is said that the carrier of a passenger must provide for his safety `as far as human foresight will go,' it is not meant he will be required to exercise all care and diligence of which the human mind can conceive, or all the skill and ingenuity of which it is capable." In the case of Levy v. Campbell, (Tex.) 19 S. W. 438, the court approved a charge that the carrier is bound to use "the utmost practical care in providing for the safety of passengers;" and in Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407, this court approved a charge that the carrier is bound to use the "utmost care" to provide for the safety of passengers. In the case of Railroad Co. v. Worthington, 21 Md. 288, the term "utmost care," is defined to mean "all the care and diligence possible in the nature of the case." "Utmost care" means the greatest care, and falls short of the expression of the charge here, in this: that it is understood to apply to the surroundings as matters then stood and could be foreseen. But "all possible care" has a broader and more unlimited meaning. The word "possible," as used in this connection, means "capable of being done." Webst. Dict. word "Possible." From the charge as given, the jury must have understood that the carrier was bound to do everything that it was capable of doing to prevent the injury. From the standpoint of the jury, looking at the occurrence retrospectively, there is perhaps scarcely an accident in the...