dissenting, said:
I dissent from the opinion of the court in this case. The record, in my opinion, discloses several errors for which the judgment should be reversed, but as the order to be entered here will be final, and there will be no further trial of the case, I will call attention to only one or two of them.
It was palpable error, I think, to instruct the jury, as the circuit court did, against the objection of the appellant, that they must find for the plaintiff if they believed from the evidence that the collision and consequent death of the plaintiff’s intestate was caused by the negligence of the defendants’ agents, without accompanying the instruction with any explanation as to what negligence is. The authorities all agree that negligence, when the facts are disputed, is a mixed question of law and fact. It includes two questions: (1) Whether a particular act has been performed or omitted; and (2) whether the performance or omission of this act was the breach of a legal duty. The latter is a pure question of law for the court; the former a pure question of fact for the jury. Shear. & R. Neg., sec. 11.
Therefore, to enable the jury in the present case to intelligently decide whether the defendants had been guilty of negligence, it was necessary for them to be told what legal duty the defendants, or either of them, owed to the plaintiff’s intestate when the casualty occurred. A railroad company, like any other carrier who carries passengers by the agency of steam, is *949not only bound to exercise the highest degree of care in safely transporting its passengers, but it must repel, by satisfactory proofs, every imputation of negligence by a passenger. But it owes no such duty to a stranger, and in no case does it owe to a stranger the duty of exercising anything more than ordinary care. S. V. R. R. Co. v. Moose, 83 Va. 827.
These are rules which the láw prescribes, and in respect to which it is the duty of the court to instruct the jury in a case like the present, when instructions are asked upon the subject, in order that the jury may say whether, upon the facts of the particular case, negligence is established. The rule, that to questions of law the court responds, and to questions of fact the jury respond, is as old as the common law itself, and the court can no more, with propriety, surrender its functions to the jury than it can invade the province of the jury by taking from them and upon itself the decision of disputed questions of fact. Greenleaf says that where the question to be decided is a mixed one of law and fact, it is submitted to the jury, who are first instructed by the judge in the principles and rules of law by which they are to be governed in finding a verdict, and these instructions they are bound to follow. 1 G-reenl. Ev. sec. 49. And in a note to the text it is said, by way of illustration of the rule, that “the judge is to inform the jury as to the degree of diligence, or care, or skill, which the law demands of the party, and what duty it devolves on him, and the jury are to find whether that duty has been done.”'
I had supposed this principle was too well settled to be questioned. It has been repeatedly recognized by this court, and is the universally accepted doctrine.
In Dun v. S. and R. R. Co., 78 Va. 645, Judge Lacy, speaking for the court, and citing numerous cases, used this language: “ When the facts are disputed, the question of negligence is a mixed question of law and fact. The jury must ascertain the facts, and the judge must instruct them as to the rule of laxo, which they are to apply to the facts as they may find them.”
*950The rule is well expressed by Beach in his work on Contributory Negligence, at section 161, who says that as negligence is generally a mixed question of law and fact, “ it devolves upon the court to say, as matter of law, what is negligence, and upon the jury to say, as matter of fact, in the light of the instructions from the bench, whether or not, in the particular case at bar, the facts as proven to their satisfaction warrant the imputation of negligence. In other words, the court tells the jury what negligence is, and the jury tells the court what the facts of the case show upon the question of negligence; the judge defines negligence in the charge, and the jury apply the definition to the facts in their verdict.” And he very justly adds the remark that an uncounted multitude of authorities might be cited in support of this elementary proposition.
Nor has any authority been cited in support of the ruling of the circuit court, other than certain general expressions of some of the courts, in disapproving the doctrine of Thorogood v. Bryan, (8 C. B. 114) to the effect that a passenger in a public conveyance who, without fault on his part, is injured by the negligence of a third party contributing to the injury, may maintain an-action against such person, notwithstanding the contributory negligence of those in charge of the conveyance in which he is being carried. I certainly do not controvert <this proposition, but concede it to be sound. The case of Thorogood v. Bryan, was based upon a groundless fiction, and has been rightly, I think, overruled. The point there decided was that a passenger in a public omnibus, who is injured by the negligent management of another omnibus, cannot maintain an action against the owner of the latter, if the driver of the former, by the exercise of proper care and skill, might have avoided the áccident; and the reason assigned was that the p°assenger, in selecting a vehicle, so identifies himself with the vehicle and its driver, that the negligence of the latter is to be considered the negligence of the passenger himself. But this reasoning is fallacious, as we know from every-day experience that the passenger, ordi*951narily, exercises no control over the driver, and has no means of preventing his negligence.
The doctrine has never been recognized in the admiralty courts, nor has it been generally followed in this country. On the contrary, it has been rejected by many courts of last resort, including the supreme court of the United States, in Little v. Hackett, 116 U. S. 366, and the case itself has been recently overruled in England. The Bernina, L. R. 12 Prob. Div. 58.
■ I do not doubt, therefore, that the plaintiff in the present case may maintain an action against the appellant, if the negligence of the latter contributed to the death of the deceased. But the question at last comes back, what is negligence ? And that must be decided in the manner I have indicated.
If the ruling of the circuit court be correct, then, indeed, not only must Thorogood v. Bryan be disregarded, but the law has been carried to the opposite extreme from what it was in England before that case was overruled ; that is to say, the appellant may not only be. sued with the owners of the ferry-boat for the alleged negligent killing of the plaintiff’s intestate, but it must stand upon the same footing with its co-defendants, notwithstanding the deceased, at the time of the accident, was a passenger on the ferry-boat, to whom, therefore, the owners of the ferry-boat owed the highest degree of care and skill, whereas the appellant owed her no higher duty than to exercise ordinary care in the management of its tug and barge. N. Y. P. & N. R. R. Co. v. Kellam’s Adm’r, 83 Va. 851, 857.
But surely this is not the law. The same rule by which the liability of the appellant would have heen determinable, if the action had been brought against it alone, must be the test of its liability in a joint action like the present. And why should it not be so ? Upon what principle can it he otherwise ?
It was suggested in the argument that there is no contribution between tort feasors; but this argument assumes as established the very fact in dispute; the question being, not one of contribution, but of original liability; in other words, whether dr *952not the appellant was negligent. But how were the jury to determine that question, without being first told what legal duty the appellant owed the deceased ? They were not presumed to know, without an instruction upon the point, and they ought not, therefore, to have been left in the dark, as they were, to determine it for themselves. It was plainly the duty of the court to have instructed them as to the rule of law by which they were to be governed in finding a verdict.
The recent case of N. & W. R. R. Co. v. Burge, 84 Va. 63, is an authority in point. In that case the injuries complained of were caused by a collision of a freight train of the defendant company with the plaintiff’s truck, as he was driving from a wharf into a public street, in the city of Norfolk, from which the colliding train was being backed. At the trial the defendant moved the court to instruct the jury that although they might believe from the evidence that its agents failed to give the customary signals of the approach of the train, yet that the plaintiff was not entitled to recover if he could have discovered the approach of the train in time to have avoided it. The plaintiff objected to this instruction, and moved the court to instruct the jury, in lieu thereof, that he was bound to use only such care and watchfulness as a man of ordinary prudence, under the circumstances, would have used, and that if he used such care he was not guilty of contributory negligence.
The court granted the motion, and instructed the jury accordingly, and this court affirmed the ruling of the trial court on the ground that, as the instruction which was refused did not define the degree of care which the plaintiff was bound to use to entitle him to recover, it was calculated to mislead the jury, whereas the instruction given, by correctly telling the jury what negligence in the particular case was, enabled them to properly apply the law to the facts of the case, and thus to arrive at a right conclusion, i. e., to decide whether or not the plaintiff had been guilty of contributory negligence.
This ruling is in harmony with the principle laid down in *953Dun v. Railroad Co., 78 Va., supra, and is, in my opinion, decisive of the present case. Dor why should it not be as much the duty of the court to define negligence when imputed to a defendant, as when imputed to a plaintiff? Are not its constituent elements in either case the same? Do not the jury need enlightenment on the question of law involved, as well in the one case as in the other? Can a person who happens to be a defendant, any more than one who is the plaintiff in an action, be guilty of negligence, without the breach of legal duty? And who but the court is to say what that legal duty is? I must confess I am unable to perceive any reason why the rule should not be so, nor am I aware of any authority which holds the contrary where the question has been raised. Indeed, but for the decision of a majority of the court in this case, I would say the proposition was axiomatic.
It is, therefore, to my mind too clear for argument that, unless all legal rules as to the degrees of negligence are to be abrogated altogether, the circuit court erred in giving the instruction above mentioned. And this error was intensified in its effect by the subsequent refusal of the court to give an instruction, on the motion of the appellant, to the effect that while the owners of the ferry-boat owed to the deceased the exercise of extraordinary vigilance, the appellant merely owed her the exercise of the ordinary care usually observed by prudent men in the business in which it was engaged.
This instruction correctly propounded the law, and ought to have been given. It is true that if the first part of it, namely, that part relating to the duty of 'those navigating the ferryboat, had keen offered separately, a refusal to give it might not have been error to the prejudice of the appellant, but the refusal to give the latter part was calculated to mislead, and doubtless did mislead the jury, and was therefore error, for which, in my opinion, the judgment should be reversed. The case is stronger than many cases in which it has been held that “ though an instruction as asked is not wholly correct, yet if the general
*954refusal of it may mislead the jury, the court should either accompany the refusal with an explanation to the jury, or should give them an instruction stating the correct proposition.” And the rule is certainly a very just one. See Alex. Savings Inst’n v. McVeigh, 84 Va. 41, and cases cited.
There are, besides, these, other errors, I think, in the record, but I will not enter into a discussion of them. I have only called attention to the questions to which I have referred because of their importance in the every day practice of the courts of the Commonwealth. Many of the questions relating to the rules of navigation and the Federal statutes on the subject, which were argued before us, were considered by Judge Hughes, of the United States district court, in the case of The Manhasset, 34 Fed. Rep. 408, a case growing out of the same collision, and were decided adversely to the views of the appellee here. The opinion in that case contains a very full and able discussion of the questions before the court, and I will do nothing more in this connection than simply refer to that opinion. I have already said more than I intended.
I think the case was not properly submitted to the jury, and that the judgment ought therefore to be reversed, and the case remanded for a new trial.
Judgment appirmed.