that the notes described in the indictment are promissory notes within the Act of Congress under which the indictment is framed. They contain a promise to pay money by the United States, and they are substantially and technically embraced by the law. And we think the averment, though not very technically ex179] pressed in the indictment that the defendant received the notes, knowing them to have been stolen from the mail, is sufficient. We think also that the letter "M," which appears on the face of the note, is a material part of it. It limits the interest on the note to one mill per centum, instead of one per centum, as stated in the indictment. March, 1825, under which the prisoner is indicted; and that there is a sufficient averment in the indictment in this cause of the [*180 stealing and receiving such treasury notes. 2d. That the letter "M," which appears upon the face of the note offered as evidence, is a material part of the description of said note. And, 3d. That it would be proper to receive parol evidence for the purpose of explaining the meaning of the said letter "M," and prov. ing the practice and usage of the Treasury Department and officers of the government and others, lawful receivers of similar treasury notes, in order to show thereby the meaning intended to be attached and actually attached to the said letter “M” by the Treasury Department and others, and that by such meaning the said treasury note bears one mill per centum interest, and not one per centum interest. The indictment does not profess to set out an exact recital of the note, but merely to give such a description of it as to make it evidence in the case. And this is all that the law requires. But the description, as far as it goes, must be accurate, so as to identify the note. Any substantial variance between the note described and the one offered in evidence, must *WILLIAM B. STOKES, Plaintiff in [*181 be fatal to the prosecution. In this respect the rules of pleading are the same in criminal as in civil proceedings. If the note in question had been given by an individual, and an action of assumpsit had been Error, FRANCIS W. SALTONSTALL, Defendant in Error. ligence. brought on it, the declaration must have de- Negligence-burden of proof-contributory negscribed it accurately; and by a proper averment shown the meaning and effect of the letter "M," on the face of the note. And so where a note is given payable in foreign coin, the value of such coin, in current money, must be averred; and under such averment, evidence of the value may be received. In an action against the owner of a stage-coach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting jury of which the plaintiff complains was occaof the coach, the owner is not liable, unless the insioned by the negligence or want of proper skill or care in the driver of the carriage, in which he 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 that the accident was not occasioned by the driver's fault. This treasury note might, perhaps, have been described in the indictment with sufficient certainty, without stating the rate of interest which it bears; but if this part of the note be described, it must be done accurately. And this might have been done by copying the words of the note, including the letter "M." and the plaintiff's wife injured, it is incumbent on It being admitted that the carriage was upset It would not have been improper, though not the defendant to prove that the driver was a person essential, after the recital, to aver the meaning of competent skill, of good habits, and in every resand effect of the letter "M," and then proofness in which he was engaged, and that he acted on pect qualified, and suitably prepared for the busiwould be required to sustain the averment. We think, under the circumstances of the case, that parol proof may be received to show the meaning and effect of the letter "M," as inserted in the body of the note; and if such evidence shall establish a substantial variance between the note described in the indictment and the one offered in evidence, it must be fatal to the prosecution, whether such evidence be submitted to the decision of the court or to the jury, under the instruction of the court. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Virginia, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the Act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court, 1st. That the treasury notes issued by authority of the Act of Congress passed on the 12th day of October, in the year 1838, are promissory notes within the meaning of the Act of Congress approved the third day of this occasion with reasonable skill, and with the utmost prudence and caution; and if the disaster or want of skill, or prudence on his part, then the in question was occasioned by the least negligence, defendant is liable in the action. caution on the part of the driver of a stage-coach, If there was no want of proper skill, or care, or and the stage was upset by the act of the plaintiff or his wife in rashly and improperly springing from it, then the defendant is not liable to an action; but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage to upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage. If the driver was a person of competent skill, and in every respect qualified and suitably prepared for the business in which he was engaged, and the NOTE. Contributory negligence, and of the freedom of plaintiff from contributory negligence necessary to entitle him to recover. No action will lie for the consequences of a negligent act where the party complaining has by his own want of due care and caution been in any Tonawanda R. B. Co. v. Munger, 6 Den. 255; 4 degree contributory to the misfortune or injury. who was a passenger. IN accident was occasioned by no fault or want of and examined on the trial, stated that at the akill or care on his part, or that of the defendant last change of horses, before the accident, the or his agents, but by physical disability arising from extreme and unusual cold, which rendered passengers generally remarked that the driver him incapable for the time to do his duty, then seemed to have drank too much to go on. Mr. the owner of the stage is not liable in an action Saltonstall, the plaintiff, went to the agent, or for damages, for an injury sustained by a person the person avowing himself as such, and who was acting in that capacity, and reported to N error to the Circuit Court of the United him the observation made by the passengers; States for the District of Maryland. the agent replied that the driver was all The defendant in error, Francis W. Salton-straight, and that the appearance of his being stall, in September, 1836, instituted an action intoxicated was entirely owing to his having for the recovery of damages against Richard C. driven during the night previous, which had Stockton and William B. Stokes, owners of a been excessively cold. When the stage arrived line of stages for carrying passengers from Bal- at about two miles from Bevansville, the pastimore to Wheeling; Mr. Saltonstall and his sengers felt the stage strike against a mound wife having on the 6th day of December, 1836, or ridge on the right side of the road. Mr. Salbeen passengers in the stage, when, by the care- tonstall on observing this, immediately jumped lessness, unskillfulness, and default of the out, as was believed, with the intention of stopdriver, the stage was upset; by reason of which ping the horses; Mrs. Saltonstall attempted to Mrs. Saltonstall had her hip fractured, and follow her husband, but fell to the ground at several other bones of her body broken, and the very instant the stage upset, and it fell diwas otherwise greatly cut, bruised and injured, rectly on her. The upset took place on Sunday so that her life was endangered. afternoon, the 5th day of December, at about four o'clock in the afternoon. It was broad daylight. The plaintiff's wife was dreadfully injured; she was taken up and carried to a log house in the neighborhood. The injury was occasioned by the falling of the stage on her body. By an agreement between the counsel for the plaintiff and the defendants no objection was to be taken to the nonjoinder of other persons as defendants, who were also owners or interested in the line of stages, when the injury complained of in the action occurred; and the plaintiff might recover in this action any dam182*] ages which might be recovered in an action by himself and wife, or by himself alone. Richard C. Stockton having died after the institution of the suit, it was proceeded in against William B. Stokes, who survived him. The cause was tried before a jury, and a verdict was given for the plaintiff, under the instructions of the court, for seven thousand dollars. On this verdict the court gave a judgment for the plaintiff. The counsel for the defendant tendered a bill of exceptions to the opinion of the court, and he afterwards prosecuted this writ of error The bill of exceptions stated, at large, the evidence given on the trial of the cause The evidence of the witnesses for the plaintiff, taken under a commission to New Orleans, Comst. 849; Witherly v. Regent's Canal Co. 12 C. B. N. S. 2; 3 F. & F. 61; 6 L. T. N. S. 255; Burkle V. N. Y. Dry-Dock Co. 2 Hall, 151; Brownell v. Flagler, 5 Hill, 282; Brown v. Maxwell, 6 Hill, 592; Cook v. Champlain Transportation Co. 1 Den. 91; Brand v. Schenectady and Troy R. R. Co. 8 Barb. 368; Terry v. N. Y. Cent. R. R. Co. 22 Barb. 574; Sheffield v. Rochester & Syracuse R. R. Co. 21 Barb. 339; Dascomb v. Buffalo & S. L. R. R. Co. 27 Barb. 221; Barnes v. Cole, 21 Wend. 188; Fowler v. Dorlan, 24 Barb. 384; Wilde v. Hudson River R. R. Co. 24 N. Y. 460; 23 How. Pr. 492; Bieseigal v. N. Y. Cent. R. R. Co. 33 Barb. 429; Cox v. Westchester Turnpike Co. 33 Barb. 414; Delafield v. Union Ferry Co. 10 Bosw. 216; Thrings v. Central Park R. R. Co. 7 Rob. 616; Grippin v. N. Y. Cent. R. R. Co. 40 N. Y. 34; Wilcox v. Rome, etc., R. R. Co. 39 N. Y. 358; Gonzalez v. N. Y. C. & H. R. R. Co. 38 N. Y. 440. Negligence of plaintiff is not ground of defense unless It contributed to produce the injury complained. If his negligence had nothing to do with the occurrence it is no defense. Haley v. Earle, 30 N. Y. 208; Teall v. Barden, 40 Barb. 137; Savage v.. Com. Exchange Ins. Co. 36 N. Y. 655; Short v. Knapp, 2 Daly, N. Y. C. P. 150; 2 Abb. Pr. N. S. 241. The freedom from negligence which is required of a plaintiff, only involves that ordinary prudence and attention which sensible men are accustomed to give in certain cases. Perfect composure, entire self-possession, accurate decision as to the wisest A witness stated that the road was perfectly level, and in good traveling order. There had been ice, but it had been so beaten down that there was only a little remaining on the side of the road. The center was free from it. The road was not considered dangerous or difficult. The driver was believed to be intoxicated, and his intoxication was increased by his drinking with a man on the seat alongside of him. This belief was produced by his reckless and irregular manner of driving, which called for repeated remonstrances from the passengers, and which were wholly unattended to; and for his apparent stupid and drunken manner of conduct after the upset. He was totally unfit for anything; he could not, or would not answer a question, nor afford the least possible assistance. course to be adopted, are not required. Cook v. N. Y. Central R. R. Co. 3 Keyes, 476. Negligence of a third person is not imputable to plaintiff so as to prevent a recovery. Lannon v. Albany Gas Light Co. 46 Barb. 264; Sheridan v. Brooklyn, etc., R. R. Co. 36 N. Y. 39; 34 How. Pr. 217; Webster v. Hudson R. R. R. Co. 38 N. Y. 260; Robinson v. N. Y. C. & H. R. R. R. Co. 65 Barb. 146; Arctic Fire Ins. Co. v. Austin, 3 Hun, 195; Spooner v. Brooklyn R. R. Co. 54 N. Y. 230: Bar rett v. Third Ave. R. R. Co. 45 N. Y. 628; Metcalf 7. Baker, 11 Abb. Pr. N. S. 431. Negligence cannot be imputed to a child of such tender years as to be wholly incapable of the exercise of care. But in such case the negligence of the parent may prevent a recovery. Infants not held to same degree of care or caution as adults. Mangam v. Brooklyn R. R. Co. 38 N. Y. 455; 36 Barb. 230; Thurber v. Harlem, etc., R. R. Co. 60 N. Y. 326; Costello v. Syracuse, etc. R. R. Co. 65 Barb. 92; Ihl v. Forty-second St. R. R. Co. 47 N. Y. 317. Negligence on the part of a parent or guardian, to prevent a recovery by Infant, must be an omis slon of such care as persons of ordinary prudence exercise and deem adequate for that purpose. Mullency v. Spence, 15 Abb. Pr. N. S. 319; Cosgrove v. Ogden, 49 N. Y. 255; Downs v. N. Y. Central R. R. Co. 47 N. Y. 83. The rule that the plaintiff in an action for negllgence must himself be free from negligence, requires only that he should have used such care as a man of ordinary prudence would employ under The injuries sustained by Mrs. Saltonstall of the coach, and by its falling upon her; and were proved by the surgeons and medical at- that such overturning was occasioned by the tendants, and they were such as to make it act of the plaintiff and his wife, or either of impossible, or too dangerous to attempt to them, in leaping from, or otherwise in leaving move her from the log hut, from the time of the the said coach; and shall further believe from accident, the sixth day of December, until the the evidence in the cause, that at the time of 183*] eighteenth day of December, when she such leaping from, or of such leaving said was carried to Bevansville, where she remained coach, there did not exist any certain peril, nor until the eighteenth day of May following. In any immediate danger of personal injury, nor July of the same year she was in Philadelphia, any reasonable cause of apprehension of imstill in a state of great suffering, and using pending danger by remaining in the coach; then crutches. the plaintiff is not entitled to recover upon the issue joined in this case, in respect to the said injury sustained by his wife; even if they also believe from the evidence in the cause that the driver was guilty of carelessness, negligence, and misconduct, in placing the coach in the particular place and situation in which it was at the time of such leaping from, or leaving the coach. The plaintiff also proved, by Mr. Ludlow, who was a passenger in a stage, which arrived after the accident, that the road was perfectly good, and was one on which a stage would not be likely to upset. The witness went to the driver, and had some conversation with him. The defendant's counsel objected to the state ments of the driver being admitted in evidence; but the court declared them to be admissible; 2. If the jury shall believe from the evidence to which the counsel for the defendant except-in the cause, that the injury to the plaintiff's ed. The plaintiff then further proved by Mr. wife was occasioned solely by the overturning Ludlow that he asked the driver how the acci- of the coach, and its falling upon her; and that dent happened, when he stated he had upset such overturning was occasioned by the act of fifty coaches, and he did not believe the wom- the plaintiff and his wife, or either of them, an was as much hurt as she said she was. in leaping from, or otherwise in leaving the coach, and shall further believe from [*184 the evidence in the cause that such leaping from or such leaving the coach, was not under the actual circumstances an act of prudent precaution for the purpose of self-preservation; nor such an act as a person of ordinary care, prudence, or resolution would have adopted, under the actual circumstances, even if they shall believe from the evidence that such leaping from, or such leaving said coach, was under the existence and incitement of actual alarm and apprehension of supposed impending danger, then the plaintiff is not entitled to recover upon the issue joined in this cause, in respect of said injury sustained by his said wife. The testimony offered by the defendant was intended to show the capacity and sobriety of the driver, and that the road was icy, difficult, and dangerous; and that the upsetting of the stage might be accounted for by the slippery and icy condition of the road. The evidence for the defendants, it was contended, proved that had the wife of the plaintiff remained in the stage, no injury would have resulted to her. The three passengers were not materially bruised. The defendant also proved that the coach and harness were properly made, and of sufficient strength; and that the horses were good and steady. The defendant's counsel prayed the court to instruct the jury in sixteen different prayers. Among those were the following: 1. If the jury shall believe from the evidence in the cause, that the injury to the plaintiff's wife was occasioned solely by the overturning the circumstances. Fero v. Buffalo and State Line R. R. Co. 22 N. Y. 209. Ordinary care or common prudence is what, in the case supposed, would be the conduct of a majority of men in like circumstances. It is such a degree of care and caution as will be in due proportion to the injury or damage to be avoided. Ernst v. Hudson River R. R. Co. 24 How. Pr. 97. It is not necessary, in order to a recovery, that the plaintiff should have used the soundest discretion, or the highest degree of care, or the utmost possible precaution, nor will he be prevented from recovery by mere slight negligence on his part. McGrath v. Hudson River R. R. Co. 32 Barb. 144; 19 How. Pr. 211; Willis v. Long Island R. R. Co. 32 Barb. 398; Wilds v. Hudson River R. R. Co. 3 Barb. 503; Barker v. Savage, 1 Sweeny, N. Y. 288. Any degree of contributory negligence which Immediately conduced to the injury, is a complete defense. Bunn v. Delaware, Lackawanna & Western R. Co. 6 Hun, 303; Gray v. Second Ave. R. Co. 65 N. Y. 561; S. C. 2 J. & Sp. 519; Keese v. New York, New Haven and Hartford R. Co. 67 Barb. 205. Negligence on the part of the person injured, which in no way contributed to the accident, is not a defense. Hawks v. Winans, 10 J. & Sp. 451; 8. C. 74 N. Y. 609. The general rule of law respecting negligence is that although there may have been negligence on the part of the plaintiff, yet, unless he could, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence, he is enti 3. If the jury shall believe from the evidence in the cause, that the injury sustained by the plaintiff's wife was occasioned solely by the overturning of the coach, and by its falling upon her; and that such overturning was octled to recover. Davis v. Mann, 10 M. & W. 546; 6 Jur. 954; 12 L. J. Exch. 10. In all cases of collision, the question is whether the disaster was occasioned wholly by the negli gence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the disaster by his own negligence, or want of ordinary and common care, that but for his default in this respect the disaster would not have happened; in the former case he recovers, in the latter not. Havens v. Erie Railway Co., 53 Barb. 328; Tuff v. Warman, 5 C. B. N. §. 573; 27 L. J. C. P. 322; 5 Jur. N. 8. 222, Exch Cham The proposition that the plaintiff in an action for negligence cannot recover if he has been guilty of negligence or want of ordinary care contributing to the injury complained of, is subject to this qual ification, namely, that if the defendant could, by the exercise of reasonable care and diligence, have avoided the injury, he is not excused by the plaintiff's contributory negligence. Radley v. London & N. Western Railway Co. 1 L. R. App. Cas. 754; 46 L. J. Exch. Div. 573; 35 L. T. N. 8. 637; 25 W. R. 147; H. L. reversing the judgment of the Exchequer Chamber, 10 L. R. Exch. 100; 44 L. J. Exch. 73; 33 L. T. N. 8. 209; which reversed the judgment of the Court of Exchequer, 9 L. R. Exch. 71; 43 L. J. Ex. Ch. 73; Kenyon v. N. Y. Cent. & Hud. R. R. R. Co. 5 Hun, N. Y. 479; Bahrenburg v. Brooklyn R. R. Co. 56 N. Y. 652. When the notice required by statute (Laws of 1850, chap. 140, 46) is not given it is not negligence, per se, for a passenger to ride on the front 1 and rashly in the way of incurring [*185 the actual injury which she sustained, that then the defendant is not liable, upon the issue joined in this case, to answer in damages for such injury. casioned by the act of the plaintiff and his said wife, or by the act of either of them, in leaping from, or otherwise in leaving said coach; and shall further believe, from the evidence in the cause, that such leaping from, or leaving of said coach was not effected with proper cau- 6. If the jury shall believe from the evidence tion and prudence, under the actual circum- in the cause that the plaintiff and his wife, or stances, as well in reference to the situation in either of them, by leaping from the coach or which the said plaintiff and his wife (if the ov-leaving the same, contributed in fact to proerturning was occasioned by the act of both) duce the happening of the injury to the plainwere placed; or, if such overturning was oc- tiff's wife, which she actually sustained; and casioned only by the act of one, in reference to shall further believe that in so leaping from, or the situation of such one of them, by whom | leaving the said coach, the same was done unsuch overturning was occasioned, was placed; necessarily and indiscreetly, or imprudently or as also in reference to the situation in which rashly, incautiously, or without ordinary care, said coach was placed in position, with respect that then the plaintiff is not entitled to recover to the ground on which it stood, and otherwise, in respect of said injury; even if the jury shall then the plaintiff is not entitled to recover, in believe that the driver was guilty of gross respect to said injury to his said wife. negligence and misconduct; and was partly, or even mainly, the cause of the happening of such injury. 4. If the jury shall believe from the evidence in the cause that the injury to the plaintiff's wife was occasioned solely by the falling of the coach upon her, and that she was then outside of the coach and on the ground; and shall further believe that at the time she leaped from, or left the coach, she knew or believed that it was overturning, or about to overturn, and leaped from, or left it for that cause, and that she designedly alighted on the ground in the direction in which the coach was overturning or about to overturn, that then, such her act was a rash and imprudent act, and the defendant is not responsible upon the issue joined in this cause for the injury which she so sustained; even if the jury shall, at the same time, believe that such overturning was occasioned by the fault or negligence of the driver. 5. If the jury shall find from the evidence that the plaintiff's wife, if she had remained in the coach, would not have been materially injured by the overturning of the same; and shall find from all the evidence in the cause, that a discreet and prudent person, under the circumstances in which she was placed, as disclosed in evidence, would have, and ought to have, remained in the coach; and that she placed herself imprudently, and indiscreetly, platform of a moving car. Nolan v. Brooklyn_City N. R. R. Co. 87 N. Y. 63; S. C. 13 N. Y. Week. Dig. 286. One falling upon ice on a sidewalk is not necessarily guilty of contributory negligence from the fact that he saw the ice three days before and avoided it. Thomas v. Mayor, etc. 15 N. Y. Week. Dig. 878. The fact that the plaintiff intestate took an ex posed position in a railroad car or coach which would be more dangerous in case of collision, is not contributory negligence. The position of the deceased on the car has nothIng whatever to do with the question. Creed v. Penn. R. Co. 17 Abb. L. J. 364; Willis v. L. I. R. R. Co. 82 Barb. 398; 8. C. 84 N. Y. 670; Rounds v. D. L. & W. R. Co. 64 N. Y. 129-138. Even if he was in that particular place against the orders of the defendant, known to him. Idem. Jacobs v. St. Paul & Chi. R. Co. 20 Am. Rep.; Williams v. N. Y. & H. R. Co. referred to in Colgrove v. Harlem, etc. R. R. Co. 6 Duer, 434. And If he knew that his position was more dangerous in case of a smash-up than a seat on another part of the car. Carroll v. N. Y. & N. H. R. Co. 1 Duer, 571. Affirmed in Court of Appeals, 6 Duer, 415, 416. The essential element of negligence in such a case is a disregard of some risk which the deceased ought to anticipate. Terry v. Jewett, 17 Hun, 400 per J. C. Smith, J.; affirmed, 78 N. Y. 845; Gray v. Bell, 5 Am. Rep. 871. 16. That the prima facie evidence of negligence arising from the fact of the upsetting of the coach, and the injury to the plaintiff's wife, is rebutted by the proof of the fact, if the jury so believe from the evidence, that the defendants had a first-rate coach, a competent set of horses, and a good and proper harness, and a competent, prudent, and careful driver at the time of the accident; and that then the burden of proving negligence is thrown upon the plaintiff. The plaintiff also offered prayers to the court for instructions to the jury. All the prayers offered by the defendant and the plaintiff were rejected by the court, and the court instructed the jury 1. That the defendant is not liable in this action unless the jury find that the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage, in which he 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 that Negligence of the person injured or killed, that did not contribute to produce the accident or injury, is no bar to a recovery. Haley v. Earle, 30 N. Y. 208; Caldwell v. Murphy, 1 Duer, 233; S. C. affirmed in Court of Appeals, 1 Kern. 416; Colgrove v. H. & N. R. R. Ĉo. 6 Duer, 383. The deceased owed no duty to the railroad comduty of the company to make all seats safe. Willis pany to select for himself the safer seat. It is the V. L. I. R. Co. 34 N. Y. 670. Nor can a plaintiff be guilty of negligence while in the lawful use of his own property on his own premises. Fero v. B. & S. L. R. Co. 22 N. Y. 215; Cook v. Champ. T. Co. 1 Denio, 96, 97, 102; as where plaintiff's property, on which were combustible materials, was destroyed by fire communicated thereto by defendant's negligence. What contributory negligence on the part of the plaintiff will sustain a nonsuit. Toomey v. Turner, 24 Hun, 599: S. C. 12 N. Y. Week Dig. 427; S. P. Miller v. N. Y. etc. R. R. Co. 13 Id. 145. A plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after he is aware of the plaintiff's danger, could have averted the injury. The fact that one has placed himself in a place of danger can never be an excuse for another carelessly or recklessly injuring him. Healy v. Dry-Dock, etc. R. R. Co. 11 N. Y. Week. Dig. 441; 46 N. Y. Supr. 14 J. & 8. 478. the accident was not occasioned by the driver's | witness to testify. But the statements were not fault. 2. It being admitted that the carriage was upset and the plaintiff's wife injured, it was incumbent on the defendant 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 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, then the defendant is liable in this action. 3. If the jury find there was no want of proper skill, or care, or caution on the part of the driver, and that the stage was upset by the act of the plaintiff or his wife, in rashly and improperly springing from it, then the defendant is not liable to this action; but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at 186*] that time a reasonable ground for *supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe, from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage to upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage. 4. If the jury shall find that the driver was a person of competent skill, and in every respect qualified and suitably prepared for the business in which he was engaged, and that the accident was occasioned by no fault or want of skill or care on his part, or that of the defendant or his agents, but by physical disability, arising from extreme and unusual cold, which rendered him incapable for the time to do his duty, then the defendant is not liable in this action. The defendant excepted to the refusal of the prayers offered by him, and to the instructions given by the court to the jury. The case was submitted to the court in printed and written arguments by Mr. Schley for the plaintiff in error, and by Mr. Johnson for the defendant. Mr. Schley, for the plaintiff, submitted to the court the following points and authorities: When Mr. Ludlow was under examination, he stated that, shortly after the accident happened, he went up to the driver and had some conversation with him. The defendant, by his counsel, objected to the admission in evidence of the statements of the driver: the court overruled the objection, and the defendant excepted. The plaintiff then proved, by Mr. Ludlow, "that he asked the driver how the accident happened, when he stated that he had upset fifty coaches, and he did not believe the woman was as much hurt as she said she was." This conversation, it will be observed, took place after the accident had occurred. If it can be considered as the driver's account of the manner in which the accident occurred, it is still but this representation of a past occurrence, and he ought to have been called as a even made in reference to his conduct in the particular transaction, but in relation to what he had done on former occasions; and, when, for aught that appears, he was not in the service of the defendant. If the fact had been established by competent testimony that this driver had upset fifty coaches, it would have been pregnant evidence before the jury of his want of skill as a driver; and if his statement to Mr. Ludlow was admissible evidence to establish this fact, it tended strongly to prove his want of competent skill. The position assumed by the appellant is that the declaration of the driver to the witness, "that he had upset fifty coaches," was not admissible and competent evidence for any purpose whatever. *The defendant's first prayer is based [*187 on the hypothesis that the jury would find, from the evidence, that the immediate and proximate cause of the overturning of the coach was the act of the plaintiff or his wife, or both, in leaping from or leaving the coach; and that, at the time of leaping from or leaving said coach, there did not exist any certain peril, nor any immediate danger, nor any reasonable apprehension of impending danger by remaining in the coach. This prayer was framed with reference to the instruction of Lord Ellenborough, in Jones v. Boyce, 1 Starkie's Rep. 393; 2 English Common Law Rep. 482, and the language of the prayer was adopted from the language of his lordship. It concedes that the defendant is liable for the negligence of the driver. It further concedes that even if the proximate cause of the injury was the act of the plaintiff or his wife, or both, the defendant was still liable, if there was want of skill, or if there was negligence or misconduct on the part of the driver; provided that such want of skill, or negligence, or misconduct of the driver, produced a state of case which placed the plaintiff and his wife, or either of them, in a situation of certain peril or immediate danger, or as was sufficient to create a reasonable apprehension of impending danger. But the prayer assumes the law to be that, in case the act of the party injured was the proximate cause of the injury, the defendant is not liable merely because there was default on the part of his driver, unless that default conduced to produce the injury; that is, unless there was a natural and reasonable connection between the default of the driver, as the cause, and the injury, as the consequence; and that natural and reasonable connection is assumed to be such as Lord Ellenborough has defined in the case above cited. In Story's Commentaries on the Law of Bailments (377) the learned commentator, citing the case from Starkie, says: "And the liability of the coach proprietors will be the same, although the injury to the passenger is caused by his own act, as by leaping from the coach, if there is real danger, and it arises from the careless conduct of the driver." The 2d, 3d, 4th, and 5th prayers were all framed with reference to the language of the instruction, in the case of Jones v. Boyce. It will be observed that the several prayers were not intended to deny, in toto, the plaintiff's right of action; but were limited to the par |