I concur in the foregoing opinion of the Chief Justice. While I think that the verdict of the jury awards excessive damages, yet I do not think that the excess is so great that it alone, without any other error or irregularity in the proceedings of the court below, would authorize a reversal by this court of the decision and judgment of the court below.
But all that I wish to say is merely a few words with respect to negligence. Twice the very learned and senior counsel for the plaintiff in error has charged this court with adopting what he calls the rule or doctrine of “comparative negligence.” The first time he so charged was in his oral argument on a motion for a re-hearing in the case of the K. P. Rly. Co. v. Pointer. (That case will be found reported in 14 Kas., 37 to 67.) The second time he so charged was in his oral argument in this case. Mr. Justice Brewer denied the charge on the first occasion; (14 Kas. 66;) and I shall deny it now. I do not think that there is anything in all the Kansas Reports furnishing the slightest foundation for such a charge. ' I do not think that any judge of this court has ever entertained the slightest inclination- to adopt any such doctrine, and certainly no judge of this court has within the last nine years believed in any such doctrine. The counsel’s supposed doctrine of “comparative negligence,” as I understand him, is this: Where two parties are guilty of negligence contributing to the injury of one of them, the injured party may recover damages therefor from the other, provided his negligence is less than that of the other. Now it is generally true, that the party recovering damages for injuries resulting from negligence must himself have been guilty of less negligence than the other party. But this is not always true. A passenger on a railroad, who has exercised ordinary care, that is, that degree of care which an *496ordinarily prudent man would ordinarily exercise under like circumstances, might recover from the railroad company for injuries resulting from negligence, although both parties were guilty of negligence, and his slightly the greatest; for in such a case the railroad company is bound to exercise great or extraordinary care, and is liable for very slight negligence; while the passenger is bound to exercise only ordinary care, and his action can be defeated only by a showing that he was guilty of ordinary negligence. Slight negligence on his part in such a case would not defeat his right to recover. And generally, the mere fact that the plaintiff has been guilty of less negligence than the defendant will not authorize a recovery on his part. Take the present case for instance, and suppose that the railroad company was guilty of slight negligence only: the plaintiff would not then have any right to recover, even if he were not guilty of any negligence at all; for in this class of cases a railroad company is liable only for ordinary negligence, and not for slight negligence. Or suppose that the plaintiff himself was guilty of ordinary negligence contributing to the injury: then he could not recover even if the negligence of the railroad company was greater than his; for in this class of cases, and indeed in almost every class of cases, and indeed in almost every case, the plaintiff must have exercised ordinary care, and not have been guilty of ordinary negligence, or he cannot recover. There are we suppose a few exceptions where a person who has himself not exercised ordinary care may nevertheless recover, but these exceptions are very few. In the present case it was the duty of both the plaintiff and the defendant to exercise ordinary care, and be free from ordinary negligence; and neither was bound to exercise great or extraordinary care; and neither would have lost anything by being guilty of merely slight negligence. Slight negligence is merely the failure to exercise great or extraordinary care; and such negligence would not in a case of this kind make the defendant liable, or prevent the plaintiff from recovering. All negligence consists merely in the failure to exercise care *497and diligence; and there are infinite shades or degrees of negligence, as well as of care and diligence. Sir William Jones says: “There are infinite shades of default, or neglect, from the slightest inattention or momentary absence of mind to the most reprehensible supineness and stupidity.” The courts however cannot recognize all of these infinite shades or degrees of negligence, but only a few of them. And the division lines between even these few cannot be very definitely located. This court has recognized three and possibly more degrees: slight, ordinary and gross, and possibly, very slight, and gross amounting to wantonness. Some courts, in theory, refuse to recognize any degrees of negligence, although in practice they all unquestionably recognize degrees. It would be extremely absurd not to do so. But the word “negligence” does not always mean the same thing, under all circumstances, in all cases, and to all persons. In its most extensive sense it means every neglect and default, and every conceivable omission of care and diligence. In this sense, the failure to exercise the most extraordinary care, the “utmost” care, is negligence as well as the grossest and most reprehensible omission of duty. But ordinarily we use the word in a more limited sense. Ordinarily when we use the word “negligence” without any qualifying word or words, we mean ordinary negligence. This is most universally so when we use the word with respect to plaintiffs; for it is almost universally the case that ordinary negligence on the part of a plaintiff will defeat his recovery. Probably also, in a majority of cases, when we use the word with respect to defendants we mean ordinary negligence; for probably in a majority of cases ordinary negligence would render the defendant liable. But ordinarily, when we speak of negligence with respect to defendants, we mean culpable negligence; and culpable negligence may in one case be slight negligence, in another case ordinary, and in another case gross. Thus in an action by a passenger against a railroad company, the word “negligence,” as applied to the railroad company, would mean merely slight negligence; for in such a case the *498slightest negligence on the part of the company would make the company responsible and would be considered as culpable negligence. In an action by an employé of a railroad company against the company, as in the present case, if we should speak of the negligence of the company we would mean ordinary negligence, for in such a case that would be the kind or degree of negligence which would render the company liable. And' in an action against a railroad company by a person who was at the time of the injury a wrongdoer, and a trespasser upon the rights of the company, if we should speak of the negligence of the company we would mean gross negligence, or gross negligence amounting to wantonness, for in such a case no mere ordinary negligence would render the company liable. All courts, I think, in practice recognize degrees or distinctions in negligence such as the foregoing; but generally those courts which do not recognize degrees of negligence in theory, say that all negligence less than culpable negligence, or less than that degree which would in any particular case render the defendant liable, or prevent the plaintiff from recovering, is not negligence at all, and all negligence greater than that degree which would in any particular case render the defendant liable, or prevent the plaintiff from recovering, is merely negligence with a vituperative epithet. A great majority of the courts however in this country recognize degrees of negligence both in theory and in practice. And it is not strange that they should do so; for no court, however great it may be, can abolish the world as it actually exists, or abrogate human transactions as they actually occur; but all courts must take things as they find them. Degrees of negligence exist in the very nature of things, and it is foolish to attempt to wholly ignore them. To say that slight negligence can have no existence in fact, and then to say that a carrier of passengers may be held liable for slight negligence, is not altogether logical. It is virtually to say that a carrier of passengers might be held liable for something which could not have any existence. The fact is, that slight negligence may have an existence; and in some *499cases it is material and substantial negligence, and in other cases it is not. The three degrees of negligence usually-recognized are designated by the.words “slight,” “ordinary,” and “gross;” and these are pretty clearly defined in Shear-man & Redfield’s work on Negligence, (see § 18.) There are also other degrees or kinds of negligence sometimes recognized, which are designated or defined by other words or phrases. But with all the various modes and ways of designating the various kinds and degrees of negligence, probably no one ever supposed that “slight negligence” meant “ordinary negligence,” or anything else but “slight negligence.” Probably no jury ever supposed that any court meant ordinary negligence, or anything else but slight negligence, when the court used the words “slight negligence.” There is nothing in the present case to show that the jury misunderstood the language of the court below with regard to negligence; and I do not think that the jury could have been misled by any such language. Indeed, I do not think that the plaintiff in error has anything to complain of except the amount of the verdict; and I do not think that even that, considered by itself, as it must be at this time, is so extravagant or exorbitant as to justify this court in overturning both the verdict of the jury and the decision and judgment of the court below. In this our brother Brewer differs with the Chief Justice and myself, and I believe this is the only difference of opinion in this case. Upon this question I believe now just as I did when the case was formerly before us. (8 Kas. 658.) But at that time there was a fatal error which required a reversal, and I do not think that there is any such error in the case now.
The judgment will be affirmed.