For many years I have been of the opinion that to grade negligence and care into degrees was unscientific, difficult in application and troublesome in the actual conduct of litigation. Negligence is the failure to exercise the care which the circumstances of the particular case require.
I, therefore, agree in the reasoning of the opinion of Mr. Justice Page. But this is an intermediate court. I feel that we have no right to disregard the many cases in the Court of Appeals which have discussed degrees of care and attempt to establish a rule of universal application not in harmony therewith, especially when a concrete case is before us for decision which does not involve such important matters as roadbed, equipment, signals, rules, etc.
We are all of the opinion that this judgment should be *874reversed. I prefer to put the reversal upon the ground stated by Mr. Justice Laughlin in which it seems to me a clear and workable rule has been laid down, applicable to this and other like cases, of operation by the motorman. I, therefore, concur in his opinion.
Page, J.:The action is to recover damages for personal injuries ■ sustained by the plaintiff, a -passenger, by reason of the alleged negligence of the motorman in operating a car of the defendant, a common carrier. The undisputed facts are that the plaintiff boarded an open car going north operated by the defendant on Sixth avenue, in New York city, seated herself at the westerly end of the fourth seat from the front and paid her fare. When the car was crossing Twenty-fifth street a truck, drawn by one horse, collided with the car, the left-hand shaft striking the plaintiff’s leg, causing serious injury. The conflict in the evidence related to the movement of the truck. The plaintiff’s witnesses testified that the driver of the truck, coming from the west on Twenty-fifth street, saw the car approaching the south crossing, and seeing a number of persons standing there, apparently with the intention of boarding the car, thinking that the car would stop, proceeded across the avenue, but the car did not slacken its speed, and after the horse’s head was over the westerly rail, in an attempt to avoid a collision, the driver jerked on the reins, causing the horse to rear, and swung the horse around to the south, nearly parallel with the car, and as he came down the left-hand shaft struck the plaintiff’s leg.
The defendant’s witness testified that the horse had not started across the avenue when the car reached Twenty-fifth street; that it did not stop but proceeded on a trot and ran into the side of the car. The court charged the jury: “ In this case the rule of negligence differs from the class of cases to which I have referred. The rule laid down by our highest court applicable to the defendant * * *, is as follows, and I read to you * * * an excerpt from the opinion of the Court of Appeals: ‘ Passenger carriers bind themselves to carry safely those whom they take into their coaches, so far as human care *875and foresight will go. That is the utmost care and diligence of very cautious persons.’ ”* The court, later in its charge, stated: “But the degree of care resting upon a common carrier of passengers, relating to his passenger, is the exercise of the highest and utmost care, so far as human care and foresight will go. That is the utmost care and diligence of very cautious persons.” The court refused to charge the request of the defendant: “The defendant was not held to the highest skill and care that human foresight can attain with respect to the plaintiff in this action under the circumstances. Only ordinary care in view of the dangers to be apprehended was required of the defendant or its motorman in the operation of this car.” There are, therefore, presented two conflicting rules, both of which have apparent support in the opinions of appellate courts. The rule that the carrier is bound to use “ ‘ the utmost care and diligence of very cautious persons,’ ” finds support in many cases of our highest court. (Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408, 410; Brown v. N. Y. C. R. R. Co., 34 id. 404; Maverick v. Eighth Ave. R. R. Co., 36 id. 378, 381; Barrett v. Third Ave. R. R. Co., 45 id. 628, 634; Taber v. D., L. & W. R. R. Co., 71 id. 489, 494; Coddington v. Brooklyn Crosstown R. R. Co., 102 id. 66, 68; Stierle v. Union R. Co., 156 id. 70, 684; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297; affd., 165 N. Y. 622; Koehne v. N. Y. & Queens County R. Co., 32 App. Div. 419; affd., 165 N. Y. 603; Loudoun v. Eighth Ave. R. R. Co., 162 id. 380, 386, 387.) There are other cases that would seem to limit the application of this rule to the care that must be exercised by the carrier in the construction and maintenance of its roadway and appurtenances, and in the purchase and maintenance of cars and engines or machinery directly used as a means of transportation. But having done this, he is held to degrees of care variously stated as very high, high and ordinary. (Regensburg v. Nassau Elec. R. R. Co., 58 App. Div. 566; Conway v. Brooklyn Heights R. R. Co., 82 id. 516; Kelly v. Metropolitan Street R. Co., 89 id. 159; Merrill v. Metropolitan Street R. Co., 73 id. 401; Suse v. Metropolitan Street R. Co., 80 id. 24; Endres v. Inter*876national R. Co., 129 id. 785; Ganguzza v. Anchor Line, 97 id. 352; affd., 184 N. Y. 545; Dittmar v. International R. Co., 173 App. Div. 995; Miller v. Ocean S. S. Co., 118 N. Y. 211; Beltz v. Buffalo, R. & P. R. Co., 222 id. 433, 436.) While these cases, carefully read with the principle of the common law in mind, will not bear that construction, nevertheless, these decisions have been construed by some of the bench and bar as establishing degrees of negligence, as a matter of law, and have led to attempts to classify the injuries that occur, with reference to the particular happening, thus requiring the trial judge, to decide the class into which the particular occurrence falls, and then to charge the jury that under these circumstances the carrier is held to the utmost degree of care, the highest degree of care, a high degree of care, or only to ordinary care. (Thoreson v. New York State Railways, 98 Misc. Rep. 37.) Such a rule is difficult of application and tends to lead to confusion and perplexity, not only in the minds of the jury but also in its proper comprehension and expression by the court. In our common law, what is or is not actionable negligence is more a question of fact than of law, there is but one degree, and that is that degree of care that a reasonably prudent man should exercise under the circumstances of the case. It is clear, and readily understood by the jury, that under the circumstances some situation would call for the exercise of more care than would be demanded by other situations. As was stated many years ago with regard to the antitheses of these degrees of care: “ The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. * * * Recently the judges of several courts have expressed their *877disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. * * * It may be added that some of the ablest commentators on the Roman law and on the Civil Code of France, have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulty.” (Steamboat New World v. King, 57 U. S. [16 How.] 469, 474.) To demonstrate the soundness of this criticism we need only consider the rule contended for, that, with relation to the roadbed, cars, engines and machinery employed in transportation of passengers, the carrier is required, as a matter of law, to exercise the highest degree of skill and care that human foresight and prudence can suggest, short of guaranteeing the safety of the passenger. First. This must be qualified by a consideration of the requirements of the business of the carrier, for it would lead to an absurdity to hold that a railroad, running infrequent trains through a sparsely settled country, would be required to adopt all the elaborate safety devices, and constant inspection and supervision, that would be necessary on a great trunk railroad, carrying thousands of passengers daily. The necessity of the employment of such safeguards by the first would render impossible the operation of the road; while in the case of the latter a failure to employ them might of itself be negligence. Second. The rule must be further qualified by the reasonable apprehension of danger to the passenger. Thus the same degree of care and watchfulness are not alike requisite as to all the various portions of the machinery and appliances. The question as to what is the requirement of duty in regard to frequency of examination is dependent upon the liability to impairment and consequences which may be apprehended as the result of the defective condition. (Palmer v. D. & H. C. Co., 120 N. Y. 170.) Furthermore, the question may very properly arise, whether the injury to the passenger was the reasonable, natural and probable result of a situation which ought to have been foreseen by the company, and guarded against. (Ayers v. Rochester R. Co., 156 N. Y. 104, 108.) Also, there is no reason in law for applying one degree of care to the means of *878transportation, and a less degree to the operation of those means. The carrier does not merely agree to use in transportation of the passenger a safe roadbed, safe cars and engines, but he does agree to safely transport a passenger to his destination. We might multiply facts and circumstances which would tend to qualify the rule above stated, but sufficient has been stated, in my opinion, to show that as a statement of law it is inexact and incapable of general application. The common-law rule above stated affords a full and adequate rule to be applied in every case. Of course the trial judge must properly instruct the jury as to the circumstances to be taken into' consideration. The first of these is the agreement that is implied from the relation and the duty incumbent on the carrier by reason thereof. The carrier agrees to receive the passenger, convey him to his destination, and set him down safely. Although the carrier does not insure his safety from all injuries, it does assure him against any injury which might be sustained through its active or passive neglect. As the passenger’s life and safety are intrusted in a great degree to the care of the carrier who transports him, the law deems it reasonable that the carrier should be bound to exercise as high a degree of care, skill and . diligence, in receiving, transporting and setting him down safely as the means of conveyance employed and the circumstances of the case will permit; from this it follows that assuming such a duty the obligation rests upon the carrier to exercise the utmost care and diligence in providing against those injuries which human care and foresight can guard against. This rule has been repeatedly declared by our highest court. (Cases cited, supra.) It has been declared by the courts of England, by the United States Supreme Court and by all the State courts. It applies not only to carriers who use steam railroads but to those who use electric railroads, horse railroads, stage coaches, steamboats and sailing vessels. It applies at all times when, and in places where, the parties are in relation to each other of passenger and carrier, and it includes attention to all matters which pertain to the business of carrying passengers. (Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 217; Brown v. N. Y. C. R. R. Co., 32 N. Y. 597, 602.) The phrase “ utmost *879care and diligence ” does not mean that the carrier is thereby made an insurer of the passenger’s safety, but is required to take every precaution that human foresight can suggest to prevent the happening of an event that is fraught with danger to the passenger. In the operation of the means of transportation by employees, the requirement is that they shall act with that care that a reasonably prudent man would, in the particular situation, upon whom rested the obligation to safely transport those committed to his care. It is not necessary to instruct the jury as to the quality or degree of care that attaches to the facts of each case. They will realize that more care and vigilance will be demanded with reference to the roadbed and the equipment than to station platforms and approaches, because of the greater possibility of injury. The common-law rule is adapted to all the conditions of fact that can be presented and leaves the question of whether the act or omission of the carrier was negligent, which is more a question of fact than of law, to the determination of the triers of fact.
It is not inappropriate, in an opinion of an appellate court, to say, taking into consideration the facts as found by the jury, that under the circumstances the carrier was required to exercise the highest or a high degree of care, or only ordinary care. Such expressions should not be given the effect, however, of attempting to establish any other or different degree of care than that expressed in the common-law rule, and the reading of excerpts from judicial opinions in other cases is calculated to mislead rather than help the jury. “ Judicial opinions are written to guide judges, not juries, and the judge who presides at the trial is expected to deduce the rules of law applicable to the case from all that has been recorded for his instruction, and to deliver them to the jury relieved, as much as possible, from the verbiage _ in which they are found clothed. * * * There is no standard but the discretion of the judge himself to determine how much help he shall render a jury in weighing facts, and applying the law to them. Perhaps the least amount of aid is rendered where the law is delivered in the form of copious extracts from judicial opinions in other cases, but nevertheless, we can not say the Court erred in matter of law, when they *880answered legal propositions in the very terms in which similar propositions had been answered in this Court.” (Hood v. Hood, 25 Penn. St. 417, 422.)
In the case under consideration the jury were required to determine, as a matter of fact, whether the truck had proceeded so far that a collision could have been seen to have been, if not inevitable, at least proximately sure to have resulted unless the motorman stopped the car, in accordance with the testimony of the plaintiff’s witness; or, on the other hand, whether the situation was such that the car had proceeded so far across the intersecting street that no danger from a collision could be reasonably apprehended, as disclosed by the defendant’s witness. Instead of presenting those two situations to the jury, so that they could apply to each the test, did the motorman use the care that a reasonably prudent man would have done under those circumstances, when he was under an obligation to carry the passengers in safety, the court charged in general language an excerpt from a Court of Appeals opinion: “ Passenger carriers bind themselves to carry safely those whom they take into their coaches, so far as human care and foresight will go. That is the utmost care and diligence of very cautious persons.” With such a charge, unqualified and unexplained, the jury may have found the facts as disclosed by defendant’s witnesses and felt themselves constrained to find the defendant chargeable with negligence, for they very reasonably might have considered that “ a very cautious person ” in the exercise of “ the utmost care and diligence ” would have stopped and allowed a team to pass over, though there was no condition to suggest imminent danger. The instruction was, therefore, erroneous, and the exception thereto necessitates a new trial.
The judgment and order will, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Dowling, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.
See Bowen v. N. Y. C. R. R. Co. (18 N. Y. 410).— Rep.