dissented, and filed the following opinion:
This case has been argued with a zeal, ingenuity, ability *292and research, worthy of the important and delicate questions involved. It presents the nature and extent of the obligar tions assumed by railroad companies as passenger carriers, in their transportation, and the relative duties of the Court and jury in ascertaining and fixing their liability! The appellee sued the appellants for damages for injuries received, by him whilst traveling in the cars from Washington to Baltimore, on the 7th June 1856. At the trial below, the defendants ashed the Court to instruct the juyy as follows:
“ That if they believed from, the evidence that the plaintiff was injured while a passenger, in the cars of the defen • dant, from Washington to.Baltimore, on the 7th July 1856, and that said injury was caused by said cars running off the track at a dirt-switch near Elkridge Landing, and that at the time of the happening of such accident, the train of cars in which the plaintiff was, was traveling at a customary speed, and that the defendants and their agents used, and were using, the utmost care and diligence, looking to. their road, machinery and agents, and required for the safe transportation of the plaintiff, and that the accident was not due to any defect in the road or the machinery, or neglect or misconduct of their agents, then the plaintiff was not entitled to recover.
“ That if the jury found that the accident was caused by the wrongful act of a party or parties not connected with the defendants in any manner, in misplacing the switch spoken of in the evidence, and that the condition of the rail and switch when so displaced, if the jury shall believe, from the evidence that the accident was attributable thereto, was such as could.not have been anticipated, and when, visible could not have been obviated by the utmost care and diligence on the part of the defendants, or their agents, then the plaintiff was not entitled to recover.”
Which the Court rejected, and ex mero motil, gave the following:
“That if they found from the evidence that the injury of which the plaintiff complained in this case occurred as *293¡dated by the witnesses, and that the plaintiff was thereby damaged, there was presumptive evidence of negligence ou the part of the defendants, and that it was incumbent on thorn to prove that they were not negligent, in order to discharge them from liability for the injury thus occurring to the plaintiff, and that it was a question of fact for the jury to determine, from all the evidence in the case, whether the injury of which the plaintiff complained arose from any neglect on the part of the defendants or their agents, and that if the jury should find that the injury in question was the result of an accident or act against which human care and foresight could not guard, and was not the result of negligence in any degree on the part of the defendants, then the plaintiff was not entitled to recover.
“That in determining whether the accident whereby the plaintiff was injured, if the jury should find such injury, was the result of an accident or .act against which'human care or foresight could or could not guard, the jury were to have regard to the character of railway transportation, and that it was not necessary that the jury should find for the plaintiff, if they found there was no person in charge of the switch spoken of in evidence, and that the presence of such person might have prevented the accident, if the jury should believe from all the circumstances that the want of such switch-tender was not an act of negligence on the part of the defendants.” "
The value of the right of trial by jury in civil cases, depends mainly upon the observance of the boundaries between law and fact, and the effective exercise of the right of the Court to instruct the jury upon all questions of law arising upon the facts submitted to them.
The lines of demarcation between questions of law and questions of fact, are often shadowy and almost indefinable. As these fade into each other, the more necessary the exercise of the right of instruction on the part of the Court,, The reports are, full of irreconcilable decisions as to the classification of these questions.
*294Whether negligence or the want of reasonable care is to be determined by the Court or by the jury, is a question which has been much discussed. In Doorman vs. Jenkins, 3 Adol. & Ellis, 256, the judges all concurred in .saying no general rule could he laid down. That in some eases the negligence depended entirely upon the law, and then it was for the Court; in others, it depended on facts or inferences from facts, and then it was for the jury. This is but equivalent to what we have before affirmed, that where the facts are established, it is the duty of the Court to declare the law arising from them; but where the facts are disputed, or the inference to be drawn from them is questioned, it is the duty of the jury to determine them under instructions of the Court. The Central R. R. Co. vs. Moore, 4 Zabriski, 832, 833.
On the other hand, in 1 Eng. Railway Cases, 852, Aldridge vs. Great W. R. Co., 19 Con., 570; and Park vs. O’Brien, 23 Con., 347, it was held, “whether there was negligence, or a want of care of whatever degree, was from its very nature a question of fact, and therefore to be decided by the jury." This Court said in Keech vs. Balt. & Wash. R. R. Co., 17 Md. Rep., 47: “These instructions submitted to the jury the question of negligence on the part of the plaintiff, as well as on the part of the defendant, which was a proper subject for'them to pass upon." It does not appear that any question was raised as to the propriety of the submission, or whether what constituted negligence was defined. Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence, is a question for the jury.
To obviate the dangers incident to submitting mixed questions of law and fact, the rule is laid down in the text boohs, that where the question is mixed, “so intimately blended, as not to be easily susceptible of separate decision, they are 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 instruo*295tions they are bound to follow. 1 Greenlf. Ev., sec. 49, part II., ch. 1. The corollary of this rule is, that the Court should instruct in such terms as will inform the jury what the law requires to be found upon any such mixed question. Any instruction which is calculated to mislead the jury, is cause of appeal. Clements vs. Smith’s Adm’rs, 9 Gill, 160.
The remarks of Justice Story on the relative obligations of Court and jury, are very apposite:
“ It is the duty of the Court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the Court. This is the right of every citizen, and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party, for the Court would not have any right to review the law as it had been settled by the jury. Indeed it would be almost impracticable to ascertain what the law as settled by the jury actually was. On the contrary, if the Court should err in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular Court may require.” United States vs. Babtiste, 2 Sumner, 243. 1 Greenlf. Ev., 64 note. 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. Hunter vs. Caldwell, 11 Jur., 770. Burton vs. Griffith, 11 M. & W., 817. Facey vs. Hurdom, 3 B. & C., 213. Stewart vs. Cauty, 8 M. & W., 160. Parker vs. Palmer, 4 B. & Ald., 387. Pitt vs. Shew, Ib., 206. Mount vs. Larkins, 8 Bing., 108. Phillips vs. Irving, 7 M. & Gr., 325. Reece vs. Rigby, 4 B. & Ald., 202.
If the propositions established by the preceding authorities arc correct, the defendant exercised a legal right in *296submitting the instruction which he asked the Court to give the jury in this caso. The facts enumerated were left to the jury to find upon the evidence in the cause; testimony tending to prove them was offered, and the only remaining inquiry is, was the conclusion of law based on them correct. That is to say, if the defendants, at the time of the accident were traveling at a customary speed, and were using the utmost care and diligence looking to their road, machinery and agents, and required for the safe transportation of the plaintiff, and the accident was not due to any defect in the road or the machinery, or neglect or misconduct of their agents, then the plaintiff was not entitled to recover. The nature and extent oi the responsibility of passenger carriers, is stated accurately and succinctly in Story on Bailments, sec. 601, thus: “It is certain that their undertaking is not an undertaking absolutely to carry safely. They are hound only to due care and diligence in the performance of their duty. But in what manner are we to measure this due care and diligence ? Is it ordinary care and diligence which will make them liable only for ordinary neglect,' or is it extraordinary care and diligence, which will make them liable for slight neglect ? As they undertake the carriage of human beings whose lives, and limbs and health aré of great importance, as well to the public, as to themselves, the ordinary principles in criminal cases, where persons are made liable for personal wrongs and injuries arising from slight neglect, would seem to furnish the true analogy and rule. It has been accordingly held, that the passenger carrier, binds himself to carry those whom he takes into his coach, as far as human care and foresight will go; that is, for the titmosi care and diligence of very cautious persons.” Harris vs. Coster, 1 Car. & Payn, 636. Crofts vs. Waterhouse, 3 Bing., 321. Astor vs. Heaven, 2 Esp. R., 533. Christie vs. Griggs, 2 Camp., Rep., 79. White vs. Boulton, Peake R., 80. 1 Blac: Com., 562.
“But passenger carriers, not being insurers, are hob responsible for accidents, where all reasonable skill and *297diligence has been employed, when every thing has been done which human prudence can suggest, accidents may happen.”
In applying these principles to the transportation of passengers on railroads, some of the highest judicial authorities of the States have expressed themselves as follows: “Proprietors of public conveyances are liable at all events, for the baggage of passengers, but as to injuries to their persons, they are only liable for the want of such care and diligence as is characteristic of cautious persons.” Camden & Amboy R. R. Co. vs. Burke, 13 Wend., 626. Ch. Justice Shaw thus defines the rule: “The defendants were bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers.” McEllroy & Wife vs. Nashua & Lowell R. R. Co., 4 Cush., 402.
Assuming the same degree of diligence and care was designed to be required of railroad companies, as of the owners of stage coaches, in the transportation of passengers, it must be admitted, the force of the original expression, used in the earlier cases, viz: “As far as human care’ and foresight will go,” bas been much modified as interpreted in the latter, when reduced to “such care and diligence as is characteristic of cautious persons,” or “the utmost care and diligence of very cautious persons.”
We are not disposed to relax a rule oí law on which depends so much of human life and happiness. .If the rate of care and diligence should ho proportioned to the value of the lives involved, no human care and foresight would be equal to the precious freight, hut the legal standard is that which ensures reasonable, practicable diligence, and imposes no unreasonable burden, the standard adopted as explained, by Justice Story, “the utmost care and diligence of very cautious persons.”
The defendants’ first prayer is hut a paraphrase of the *298language used in the authorities above cited, adopting the highest standard of liability. It states, affirmatively, the facts which constitute the utmost care and diligence required for the safe transportation of the plaintiff, and requests the Court to instruct the jury, if they find such care and diligence were used, and that the accident was not due to any defect in the road and machinery, or neglect or misconduct of their agents, the plaintiff was not entitled to recover. The learned judge rejected this prayer, substituting those above cited. These instructions are objectionable, not for what they do, so much as for what they do not contain. No measure of care and diligence is given by them to the .jury. Interpreted literally, they imply, that all the human mind could devise or human hand execute, was to be required of the defendants, to exempt them from liability for injury to the plaintiff — the jury having regard to the character of railway transportation — with this proviso: “that it was not necessary that the jury should find for the plaintiff, if they found there was no person in charge of the switch spoken of in evidence, and that the presence of such person might have prevented the accident, if the jury should believe from all the circumstances, that the want of such switch-tender was not an act of negligence on the part of the defendants.”
The qualifications betray the indefiniteness of the rule and the dang )r of its application. They leave the measure of legal liability to the vague, undefined conjecture of the jury, of what railway transportation required, with the power to find a tender was necessary at each switch, at the .passage of every train, if they deemed “the presence of such :person might have prevented the accident,” &c.
In Stokes vs. Saltonstall, 13 Peters, 185, the instructions given by the Court below, and approved by the Supreme Court, were as follows:
1st. “The defendant is not liable in this action, unless ‘lie jury find that the injury of which the plaintiff com*299plains, was occasioned by the negligence or want of proper skill or caro in the driver of the carriage in which ho and his wife were passengers; and the facts, that the carriage was upset and. the plaintiff’s wife injured, are prima facie evidence that there was carelessness or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving tbat tbe accident was not occasioned by the driver’s fault.”
2nd. “It being admitted that the carriage was upset and the plaintiff’s wife injured, it is incumbent on tbe defendant to prove the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill and with the utmost prudence and caution; and if the disaster in question was occasioned by the least negligence, or want of skill or prudence on his part, that the defendant is liable in tbis action.”
It was objected in the argument, that although the facts of the overturning the coach and the injury sustained are prima facie evidence of negligence, they did not throw upon the defendant the burden of proving tbat such overturning and injury were not occasioned by the driver’s fault, hut only that the coachman was a person of competent skill in his business; the coach properly made, the horses steady,” &c.
Commenting on which objection, the Court said, (p. 193:) “Now taking that portion of the first and second instructions which relates to the burden of proof, together, we understand them as substantially amounting to wbat tlib objection itself seems to concede to be a proper ruling, and what wo consider to he the law; for although in the first it is said that these facts threw upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault, yet in the second it is declared, it was incumbent on the defendant, in order to meet the plaintiff’s prima facie case, to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in, which he was. *300engaged, and that he acted on the occasion with reasonable skill and with the utmost prudence and caution.”
“This affirmative evidence, then, was pointed out by the Court as the means of proving what was in terms stated in the form of a negative proposition before — that is, that the accident was not occasioned by the driver’s fault;” which we interpret to mean, that it was not required of the defendant to prove a .negative, viz: he was not guilty of negligence, want of care or skill; but the Court pointed out what facts it was incumbent upon the defendant to prove affirmatively, tp repel the inference of neglect, and establish the presumption that he acted with reasonable skill and the utmost prudence and caution; in other words, held up to the jury a standard by which they could measure the degree of care and skill required by the law to be exercised in the transportation of passengers, and determine whether such requirements had been complied with. The defendant’s fourth prayer, in Stockton vs. Frey, 4 Gill, 416, which the Court in that case decide should have been granted, is couched in almost the identical language of the first instruction given in the case of Stokes vs. Saltonstall, as to the finding of “negligence,” qualified with the proviso, “if the jury should find the injury resulted from an accident against which human care and foresight could not guard, and was not the result of negligence in any degree, then the plaintiff is not entitled to recover ip this case.”
This prayer, it should be noted, had been preceded by an instruction or instructions, granted by the Court at the instance of the plaintiff, stating affirmatively what constituted due care and diligence, (vide 4 Gill, 414,) and the qualification contained in the defendant’s fourth prayer, was superadded to that. The defendant could not complain that no standard of care, and diligence had been furnished the jury, but the object of his prayer was to instruct the jury that passenger carriers, unlike common carriers, Were not insurers and liable absolutely, but were exonerated if the accident was one against which huma,n care and ftn;e*301sight could not guard. The meaning and effect of this instruction on the minds of the jury, are entirely different when announced by the Court “ mero mo hi,” after rejecting propositions stating affirmatively facts which constituted “the utmost care and diligence” required by law, and when granted as a qualification of prayers enumerating such facts previously granted. In the first instance, it enlarges the liability of the defendant, and deprives him of the means of proving affirmatively, what was in terms stated in the form of a negative proposition. In the second, such an instruction contracts the defendant’s liability and protects him from the consequences of accidents which no reasonable care and dilgence could avoid. The substitute granted by the Court assumes the form of a negative proposition, viz: it was incumbent on them (the defendants) to prove that they were not negligent, in order to discharge them from liability, without pointing out affirmatively the facts to be proved to repel the presumption of negligence; and after rejecting a prayer containing such facts, was equivalent to declaring such proof was not sufficient. It thus deprived the defendant of the benefit of such instruction as ho was entitled to, and was calculated to mislead the jury as to the mode and measure of evidence.
After reviewing all the prominent English and American cases, from White & Boulton, Peake’s Cases, 1795, to Sharp & Grey, 9 Bing., 457, the Court in the case of Ingalls vs. Bills & others, 9 Metcalf Rep., 12, arrive at this conclusion: “If more was intended in Sharp vs. Grey, than that a coach proprietor is bound to use the greatest care and diligence in providing suitable and sufficient coaches, and keeping them in safe and suitable condition for use, we cannot agree with them in opinion. To give their language the meaning contended for in the argument, is in fact to place coach proprietors in the same predicament as common carriers, and to make them responsible in all events for the safe conduct of the passengers as far as the vehicle is concerned.” Such would be the effect of the instruction *302granted by the. Court below, taken in connection with its refusal of the defendant’s first prayer in this case, converting their liability into a warranty, instead of responsibility for negligence. Wherefore I think there was error in the refusal of the defendant’s first prayer and the granting of that given by the Court.
(Decided April 14th, 1864.)Judgment affirmed.