dissenting:
If the right of trial by jury, “ as heretofore,” is to “ remain inviolable,” it behooves us, in my judgment, to disapprove of such constraining influence as was improperly brought to bear upon the jury in this case.
While the learned judge, who presided at the trial, rightly conceded that the case hinged on questions of fact which he could not, in any event, withdraw from the jury, he submitted them with evident reluctance, and with such an emphatic expression of his own opinion that said questions should all be determined in favor of the company defendant that it was next to impossible for the jury to discharge their duty, as the constitutional triers of fact, with that sense of unconstrained freedom which should always characterize the deliberations of every jury in such cases as this.
Referring to the duty which the company as a common carrier of passengers owed to the plaintiff, and whether that duty had been properly performed, etc., he said: “ Under the law applicable to this case I must submit the question to you to determine whether you find the defendant was careless in not opening the lower switch or putting on locks. Personally, if I were a juror, I would say no. If I were a juryman, I would think that the company had done all that any prudent man would do ; it braked its cars, opened the throw-off switch and left them there. But the question must be submitted to you, as jurors, to say whether you find it was carelessness on the part of the defendant to leave those cars there on the decline on which the cars would have run into the main road in case they had got loose.”
Again he said: “ There is another part of the case which is brought out with great strength under the evidence, and proved, I think to your satisfaction, as at least it is to mine, that this accident was caused by the willful misconduct of certain boys ; that those bojrs meddled with those cars and that switch, and that it was their willful misdoing that caused the accident. I leave it to you to say whether you think under those circumstances a company ought to be held responsible for the malicious, willful misconduct of bad boys. My own individual opinion in that case is that they ought not, but as I am bound to leave that question to you, I do leave it to you to determine.”
*131Again, in answering defendant’s fifth point, in which he was asked to say, as matter of law, that “ neither the absence of a lock from the throw-off switch in the immediate vicinity of the coal cars, nor the failure to open the double rail switch, used as a throw-off, near the Corbin colliery, can be regarded as any proof of negligence on the part of the defendant,” he again volunteered his own opinion on the question, as one of fact which, as he said, “ mast be submitted to ” the jury, by saying, in substance, that the manifest acts of omission stated in the point could not be regarded as any proof of negligence.
But the learned judge’s oft-repeated declarations of his own opinion on questions of fact which were exclusively for the consideration and determination of tbe jury, and wbat he would do if he were a juror, etc., are not all. There are grave errors of law for which alone the judgment should be reversed. In the paragraph first above quoted from the charge, the standard of duty applied to defendant company as a common carrier of passengers is ordinary care merely, viz.: “ If I were a juryman, I would think that the company had done all that any prudent man would do; it braked its cars, opened the thimv-off switch and left them there.” It is no compliment even to an ordinarily prudent man to say that he would not have done more than brake the cars in such a way that even children could at any time start them down grade on their death-dealing errand, or open the throw-off switch and leave the lever unlocked and unsecured, in any manner, so that any thoughtless or mischievious boy could shut it again with perfect ease. But, when we apply to defendant’s conduct, in leaving the coal cars in such an insecure condition, etc., the high standard of care which the law requires carriers of passengers to exercise, how widely different is the case ? The contract to carry implies that every precaution which human skill could suggest has been taken to guard against every apparent danger that may beset the passenger, and that same degree of care will continue to be exercised until he reaches the end of his journey.
The siding or branch, on which the coal cars stood, was of unusually heavy grade, descending rapidly to its junction with the main line, on which was the train in which plaintiff and other passengers were being transported. As a necessary precaution against the danger of cars escaping by accident or other*132wise and running down into the main line, the two throw-off switches were constructed, one near the point where the coal cars stood, and the double rail switch further down. The former was opened, as is alleged, but left unlocked and without any kind of fastening. The latter was not even opened. If it had been, the escaping coal cars would have been arrested by it in their downward course. If the upper switch, alleged to have been opened, had been locked or otherwise securely fastened, the danger of its being opened would certainly have been greatly lessened. The omission to even open the lower switch, and to use proper means to prevent the closing of the upper one, were certainly evidence of culpable negligence on the part of the company.
The construction of these throw-off switches is proof of their necessity, but if they were not used or not properly secured, of what avail could they be in averting danger ? It is too plain to admit of any doubt that even suggesting to the jury that these acts of omission should not be regarded as any proof of negligence was error.
The unqualified affirmance of defendant’s second point was plain error. In affirming that point, without any qualification or explanation, the learned judge instructed the jury, in the words, thereof, thus: “ The uncontradicted testimony on the part of the defendant, shows that the proximate cause of the collision, in which the plaintiff was injured, was the wrongful act of trespassers upon defendant’s cars. For such wrongful act, the company defendant, under the circumstances of the present case, is not responsible; and if the jury believe the said testimony, as to the proximate cause of the collision, their verdict should be for defendant.” The vice of this instruction is that it ignores the question of defendant’s omission to exercise that high decree of care which' the law requires. It was clearly the duty of the company to take every precaution, which human skill and foresight could suggest, to guard against every apparent danger that might beset the plaintiff and other passengers. It foresaw the danger of cars being detached, by accident or otherwise, and running down the heavy grade, uncontrolled, into the main track, and it accordingly provided the two throw-off switches to guard against that apparent danger, but it omitted to properly use the means which it had pro*133vided expressly for that purpose. It omitted even to open one of the switches, and left the other unsecurely opened. That omission was at least such evidence of negligence as would have warranted the jury in finding that its neglect of duty was the cause of the collision.
There was also error in affirming defendant’s first point as presented. Other, errors of minor importance might he noted, but those, to which special reference has been made, are sufficient to show that a fair trial was not accorded to plaintiff. The emphatic and oft repeated expressions of opinion, etc., above referred to, were unwarranted, misleading and erroneous. They were an uncalled for invasion of the province of the jury. The line of demarcation between the duty of the court, as expounder of the law, and that of the jury, as the constitutional triers of fact, should be carefully observed. While, on the one hand, the court should not permit the jury to disregard or evade its instructions as to matters of law, it should be equally careful not to invade the province of the jury, and take upon itself the determination of questions of fact about which there is any doubt or dispute.
For the reasons above suggested, the judgment should be reversed and a new trial ordered.