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that the notes described in the indictment are March, 1825, ander which the prisoner is inpromissory notes within the Act of Congress dicted; and that there is a sufficient averment under which the indictment is framed. They in the indictment in this *cause of the (*180 contain a promise to pay money by the United stealing and receiving such treasury notes. 2d. States, and they are substantially, and tech. That the letter “M,” which appears upon the nically embraced by the law. And we think face of the note offered as evidence, is a mathe averment, though not very technically ex. terial part of the description of said note. 179*) pressed in the indictments that the de- And, 3d. That it would be proper to receive fendant received the notes, knowing them to parol evidence for the purpose of explaining bave been stolen from the mail, is sufficient. the meaning of the said letter “M,and prov.

We think also that the letter “M,” which ap: ing the practice and usage of the Treasury De. pears on the face of the note, is a material partment and officers of the government and part of it. It limits the interest on the note others, lawful receivers of similar treasury to one mill per centum, instead of one per notes, in order to show thereby the meaning centum, as stated in the indictment.

intended to be attached and actually attached The indictment does not profess to set out to the said letter "M" by the Treasury Depart. an exact recital of the note, but merely to give ment and others, and that by such meaning such a description of it as to make it evidence the said treasury note bears one mill per cen. in the case. And this is all that the law re- tum interest, and not one per centum interest. quires. 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

Error, rules of pleading are the same in criminal as in civil proceedings.

FRANCIS W. SALTONSTALL, Defendant in If the note in question had been given by an

Error. individual, and an action of assumpsit had been brought on it, the declaration must have de- Negligence-burden of proof-contributory neg. scribed it accurately; and by a proper aver.

ligence. ment shown the meaning and effect of the letter “M," on the face of the note. And so

In an action against the owner of a stage-coach where a note is given payable in foreign coin, used for carrying passengers, for

an injury Busthe value of such coin, in current money, must talned by one of the passengers by the upsetting be averred; and under such averment, evidence jury of which the plaintia complains was occa. of the value may be received.

This treasury note might, perhaps, have been care in the driver of the carriage, in which he and described in the indictment with sufficient cer- carriage was upset, and the plaintiff's wife injured, tainty, without stating the rate of interest are prima facie evidence that there was carelessness which it bears; but if this part of the note be or negligence, or want of skill on the part of the described, it must be done accurately. And of proving that the accident was not occasioned by this might have been done by copying the the driver's fault. words of the note, including the letter "M.”

It being admitted that the carriage was upset

and the plaintiff's wife injured, it is incumbent on 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 babits, and to every resa and effect of the letter “M," and then proof pect qualified and suitably prepared for the busi

ness in which he was engaged, and that he acted on would be required to sustain the averment, this occasion with reasonable skill, and with the

We think, under the circumstances of the utmost prudence and caution; and if the disaster case, that parol proof may be received to show or want of skill, or prudence on his part, then the

in question was occasioned by the least negligence, the meaning and effect of the letter “M,” as defendant 18 liable in the action. inserted in the body of the note; and if such caution on the part of the driver of a stage-coach, evidence shall establish a substantial variance and the stage was upset by the act of the plainbetween the note described in the indictment tiff or his wife in rashly and improperly springand the one offered in evidence, it must be ing from it

, then the defendant is not liable

to ao fatal to the prosecution, whether such evidence the driver placed the passengers in a state of perll, be submitted to the decision of the court or to and they had at that time a reasonable ground for the jury, under the instruction of the court. supposlog that the stage would upset, or that the

driver was incapable of managing his horses, the

plaintir is entitled to recover, although the Jury This cause came on to be heard on the tran. may belleve from the position in which the stage script of the record from the Circuit Court of was placed by the negligence of the driver, the atthe United States for the Eastern District of tempt of the plaintiff or his wife to escape may

bave increased the peril, or even caused the stage Virginia, and on the points and questions on to upset ; and although they may also find that the which the judges of the said Circuit Court plaintif and his wife would probably have suswere opposed in opinion, and which were cer

tained little or no injury if they had remalned in

the stage. tified to this court for its opinion, agreeably to It the driver was a person of competent skill, the Act of Congress in such case made and and in every respect qualified and suitably prepared provided, and was argued by counsel; on con

for the buslness in which he was engaged, and the sideration whereof, it is the opinion of this NOTE.-Contributory negligence, and of the freecourt, 1st. That the treasury notes issued by dom of plaintiff from contributory negligence neces

sary to entitle him to recover. authority of the Act of Congress passed on No action will lle for the consequences of a neg. the 12th day of October, in the year 1838, are ligent act where the party complalplog has by bls promissory notes within the meaning of the own want of due care and caution been in any Act of Congress approved the third day of Tonawanda B. B. Co. v. Manger, 6 Den. 255;

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accident was occasioned by po fault or want of , and examined on the trial, stated that at the akill or care on bls part, or that

of the defendant last change of horses, before the accident, the from extreme and unusual cold, which rendered passengers generally remarked that the driver him in capable 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 llable 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 who was a passenger.

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 oth 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 di. was 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 By an agreement between the counsel for the four o'clock in the afternoon. It was broad plaintiff and the defendants no objection was daylight. The plaintiff's wife was dreadfully to be taken to the nonjoinder of other persons injured; she was taken up and carried to a log as defendants, who were also owners or inter- house in the neighborhood. The injury was ested in the line of stages, when the injury occasioned by the falling of the stage on her complained of in the action occurred; and the body. plaintiff might recover in this action any dam A witness stated that the road was perfectly 182*) ages which might be recovered in an level, and in good traveling order. There had action by himself and wife, or by himself alone. been ice, but it had been so beaten down that

Richard C. Stockton having died after the there was only a little remaining on the side of institution of the suit, it was proceeded in the road. The center was free from it. The against William B. Stokes, who survived him. road was not considered dangerous or difficult.

The cause was tried before a jury, and a ver. The driver was believed to be intoxicated, and dict was given for the plaintiff, under the in- his intoxication was increased by his drinking structions of the court, for seven thousand dol-, with a man on the seat alongside of him. This lars. On this verdict the court gave a judgment belief was produced by his reckless and irregu. for the plaintiff.

lar manner of driving, which called for reThe counsel for the defendant tendered a bill peated remonstrances from the passengers, and of exceptions to the opinion of the court, and which were wholly unattended to; and for his he afterwards prosecuted this writ of error apparent stupid and drunken manner of con

The bill of exceptions stated, at large, the duct after the upset. He was totally unfit for evidence given on the trial of the cause anything; he could not, or would not answer a

The evidence of the witnesses for the plain- question, nor afford the least possible assisttiff, taken under a commission to New Orleans, I ance. Comst. 849 ; Witherly v. Regent's Canal Co. 12. C. | course to be adopted, are not required. Cook v. N. B. N. 8. 2; 3 F. & F. 61; 6 L. T. N. 8. 255 ; Burkle Y. Central R. R. Co. 3 Keyes, 476. V. N. Y. Dry-Dock Co. 2 Hall, 151 ; Brownell v. Negligence of a third person is not imputable to Flagler, 6 Hill, 282; Brown ý. Maxwell, 6 Hill, plaintiff so as to prevent a recovery. Lannon v. 592 ; Cook v. Champlain Transportation Co. 1 Den. Albany Gas Light Co. 46 Barb. 264 ; Sheridan v. 91 ; Brand v. Schenectady and Troy R. R. Co. 8 Brooklyn, etc., R. R. Co. 36 N. Y, 39; 34 llow. Pr. Barb. 368; Terry v. N. Y. Cent. R. R. Co. 22 Barb. 217 : Webster v. Hudson R. R. R, Co. 38 N. Y. 260: 674 ; Sheffield v. Rochester & Syracuse R. R. Co. 21 Robinson v. N. Y. C. & H. R. R. R. Co. 65 Barb. Barb. 339; Dascomb v. Buffalo & S. L. R. R. Co. 27 146; Arctic Fire Ins. Co. v. Austin, 3 Hun, 195: Barb. 221; Barnes v. Cole, 21 Wend. 188; Fowler Spooner v. Brooklyn R. R. Co. 54 N. Y. 230 ; Bar. V. Dorlan, 24 Barb. 384 ; Wilde v. Hudson River R. rett v. Third Ave. R. R. Co. 45 N. Y. 628 ; Metcall R. Co. 24' N. Y. 460; 23 How. Pr. 492; Bieselgal v. 1. Baker, 11 Abb. Pr. N. S. 431. N. Y. Cent. R. R. Co. 33 Barb. 429; Cox y. West Negligence cannot be imputed to a child of such chester Turnpike Co. 33 Barb. 414; Delafield v. tender years as to be wholly incapable of the everUnion Ferry Co. 10 Bosw. 216 ; Thrings v. Central clse of care. But in such case the negligence of Park R. R. Co. 7 Rob. 616 ; Grippin v. N. Y. Cent. the parent may prevent a recovery. Infants not R. R. Co. 40 N. Y. 34 ; Wilcox v. Rome, etc., R. R. held to same degree of care or caution as adults. Co. 39 N. Y. 358; Gonzalez v. N. Y. C. & H. R. R. Mangam v. Brooklyn R. R. CO. 38 N. Y. 455; 36 Co. 38 N. Y. 440.

Barb. 230; Thurber v. Harlem, etc., R. R. Co. 60 Negligence of plaintiff is not ground of defense N. Y. 326; Costello v. Syracuse, etc. R. R. Co. 65

Barb. 92: Ihl v. Forty-second St. R. R. Co. 47 apless It contributed to produce the injury complained. If his negligence had nothing to do with N. Y. 317.

Negligence on the part of a parent or guardian, N. y. 208 ; Teall v. Barden, 40 Barb. 13?: Savage Sion or such care as persons of ordinary prudence the occurrence it is no defense. Haley v. Earle, 30

to prevent a recovery by Infant, must be an omisv. Com. Exchange Ins. Co. 36 N. Y. 655 ; Short v. Knapp, 2 Daly, N. Y. C. P. 150; 2 Abb. Pr. N. S. exercise and deem adequate for that purpose. Mul

lency v. Spence, 15 Abb. Pr. N. S. 319 ; Cosgrove v. 241. The freedom from negligence which 18 required Ogden; 49 N. Y, 255; Downs v. N. Y. Central R. Ř:

Co. 47 N. Y. 83. of a plaintif, only involves that ordinary prudence The rule that the plaintiff in an action for Degll. and attention whicb sensible men are accustomed gence must himself be free from negligence, re. to give in certain cases. Perfect composure, entire quires only that he should have used snch care as self-possession, accurate decision as to the wisest la 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 I 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 im. still 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 plaintiff also proved, by Mr. Ludlow, the issue joined in this case, in respect to the who was a passenger in a stage, which arrived said injury sustained by his wife; even if they after the accident, that the road was perfectly also believe from the evidence in the cause that good, and was one on which a stage would not the driver was guilty of carelessness, neglibe likely to upset. The witness went to the gence, and misconduct, in placing the coach in driver, and had some conversation with him. the particular place and situation in which it The defendant's counsel objected to the state was at the time of such leaping from, or leavments of the driver being admitted in evidence; | ing the coach. 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

The testimony offered by the defendant was coach, *and shall further believe from (* 184 intended to show the capacity and sobriety of the evidence in the cause that such leaping the driver, and that the road was icy, difficult, from or such leaving the coach, was not under and dangerous; and that the upsetting of the the actual circumstances an act of prudent prestage might be accounted for by the slippery caution for the purpose of self-preservation; and icy condition of the road. The evidence nor such an act as a person of ordinary care, for the defendants, it was contended, proved prudence, or resolution would have adopted, that had the wife of the plaintiff remained in under the actual circumstances, even if they the stage, no injury would have resulted to her. shall believe from the evidence that such leapThe three passengers were not materially l ing from, or such leaving said coach, was un. bruised. The defendant also proved that the der the existence and incitement of actual coach and harness were properly made, and alarm and apprehension of supposed impending of sufficient strength; and that the horses were danger, then the plaintiff is not entitled to regood and steady.

cover upon the issue joined in this cause, in reThe defendant's counsel prayed the court to spect of said injury sustained by his said wife. instruct the jury in sixteen different prayers. 3. If the jury shall believe from the evidence, Among those were the following:

in the cause, that the injury sustained by the 1. If the jury shall believe from the evidence plaintiff's wife was occasioned solely by the in the cause, that the injury to the plaintiff's overturning of the coach, and by its falling wife was occasioned solely by the overturning upon her; and that such overturning was octhe circumstances. Fero v. Buffalo and State Line tied to recover. Davis 1. Mann, 10 M. & W. 646 ; R. R. Co. 22 N. Y. 209.

6 Jur. 954 ; 12 L. J. Exch. 10. Ordinary care or common prudence is wbat, in In all cases of collision, the question is whether the case supposed, would be the conduct of a ma the disaster was occasioned wholly by the neglijority of men in like circumstances. It is such a gence or improper conduct of the defendant, or degree of care and caution as will be in due pro- whether the plaintiff himself so far contributed to portion to the injury or damage to be avoided. the disaster by bis own negligence, or want of ordi. Ernst v. Hudson River R. R. Co. 24 How. Pr. 97. nary and common care, that but for his default 10

It is not necessary, in order to a recovery, that this respect the disaster would not have happened ; the plaintif should have used the soundest discre. In the former case he recovers, in the latter not. tion, or the highest degree of care, or the utmost | Havens v. Erie Railway Co., 63 Barb. 828 ; Tuf v. possible precaution, por will be be prevented from i Warman, 5 C. B. N. $. 673; 27 L. J. C.' P. 322; recovery by mere slight negligence on his part. 5 Jur. N. 8. 222, Exch Cham McGrath v. Hudson Rlver R. R. Co. 32 Barb. 144; The proposition that the plaintiff in an action for 19 How. Pr. 211; Willis v. Long Island R. R. Co. negligence cannot recover it he has been guilty of 32 Barb. 398 ; Wilds v. Hudson River R. R. Co. 3 negligence or want of ordinary care contributing Barb. 603; Barker v. Savage, 1 Sweeny, N. Y. 288. to the injury complained of, is subject to this qual.

Any degree of contributory Degligence which ification, namely, that 11 the defendant could, by immediately conduced to the lojury, is a complete the exercise of reasonable care and diligence, bave defense. Buon v. Delaware, Lackawanna & West avoided the injury, he is not excused by the plain. ern R. Co. 6 Hun, 303; Gray v. Second Ave. R. Co. tir's contributory negligence. Radley v. London & 65 N. Y. 661; 8. C. 2 J. & Sp. 519; Keese v. New N. Western Railway Co. 1 L. R. App: Cas. 754; 46 York, New Haven and Hartford R. Co. 67 Barb. L. J. Exch. Div. 573; 35 L. T. N. 8. 637 25 w. 205.

R. 147; H. L reversing the judgment of the Es Negligence on the part of the person injured, chequer Chamber, 10 L. R. Exch. 100; 44 L. J. which in no way contrlbuted to the accident, 18 not Exch. 73; 33 L. T. N. 8. 209; which reversed the a defense. Hawks v. Winans, 10 J. & Sp. 451; 8. judgment of the Court of Exchequer, 9 L. R: Exch. C. 74 N. Y. 609.

71 ; 43 L. J. Ex. Ch. 73; Kenyon v. N. Y. Cent. & The general rule of law respecting negligence Is Hud. R. R. R. Co. 5 Hun, N. Y. 479; Bahrenburg that although there may have been negligence on V. Brooklyn R. R. Co. 56 N. Y. 652. the part of the plaintid, yet, unless he could, by When the notice required by statute (Laws of the exercise of ordioary care, bave avoided the con 1850, chap. 140, 46) 18 not given it is not negll. segnence of the defendant's negligence, he is enti. I gence, per se, for a passenger to ride on the front

asioned by the act of the plaintiff and his said | and rashly, in the way of incurring (*185 wife, or by the act of either of them, in leap- the actual injury which she sustained, that then ing from, or otherwise in leaving said coach; the defendant is not liable, upon the issue and shall further believe, from the evidence in joined in this case, to answer in damages for the cause, that such leaping from, or leaving such injury. 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 plain. were 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 4. If the jury shall believe from the evidence even mainly, the cause of the happening of in the cause that the injury to the plaintiff's such injury. wife was occasioned solely by the falling of the 16. That the prima facie evidence of negli. coach upon her, and that she was then outside gence arising from the fact of the upsetting of of the coach and on the ground; and shall furthe coach, and the injury to the plaintiff's wife, ther believe that at the time she leaped from, is rebutted by the proof of the fact, if the jury or left the coach, she knew or believed that it so believe from the evidence, that the defendants was overturning, or about to overturn, and had a first-rate coach, a competent set of horses, leaped from, or left it for that cause, and that and a good and proper harness, and a compeshe designedly alighted on the ground in the tent, prudent, and careful driver at the time direction in which the coach was overturning of the accident; and that then the burden of or about to overturn, that then, such her act proving negligence is thrown upon the plaintiff. was a rash and imprudent act, and the defend- The plaintiff also offered prayers to the court ant is not responsible upon the issue joined in for instructions to the jury. this cause for the injury which she so sus- All the prayers offered by the defendant and tained; even if the jury shall, at the same time, the plaintiff were rejected by the court, and the believe that such overturning was occasioned court instructed the juryby the fault or negligence of the driver.

1. That the defendant is not liable in this 6. If the jury shall find from the evidence action unless the jury find that the injury of that the plaintiff's wife, if she had remained in which the plaintiff complains was occasioned the coach, would not have been materially in by the negligence or want of proper skill or jured by the overturning of the same; and care in the driver of the carriage, in which he shall find from all the evidence in the cause, and his wife were passengers; and the facts that a discreet and prudent person, under the that the carriage was upset, and the plaintiff's circumstances in which she was placed, as dis- wife injured, are prima facie evidence that closed in evidence, would have, and ought to there was carelessness, or negligence, or want have, remained in the coach; and that she of skill, on the part of the driver; and throws placed herself imprudently, and indiscreetly, upon the defendant the burden of proving that platform of a moving car. Nolan v. Brooklyn City Negligence of the person injured or killed, that

N. R. R. Co. 87 N. Y. 63; 8. C. 13 N. Y. Week. did not contribute to produce the accident or inDig. 286.

jury, is no bar to a recovery. Haley v. Earle, 30 Ope falling upon ice on a sidewalk is not neces. N. Y. 208; Caldwell v. Murphy, 1 Duer, 233 ; s. C. marily guilty of contributory negligence from the afirmed in Court of Appeals, 1 Kern. 416; Col. fact that he saw the Ice three days before and grove v. H. & N. R. R. Co. 6 Duer, 383. avoided it. Thomas v. Mayor, etc. 16 N. Y. Week. Dig. 878.

The deceased owed no duty to the rallroad comThe fact that the plaintia intestate took an ex

pany to select for himselt the safer seat. It is the posed position in a railroad car or coach which duty of the company to make all seats safe." Willis would be more dangerous in case of collision, 18

V. L. I. R. Co. 34 N. Y. 670. not contributory negligence.

Nor can a plaintit be gullty of negligence while The position of the deceased on the car has nothin the lawful

use of his own property, on his own. ing whatever to do with the question. Penn. R. Co. 17 Abb. L. J. 364; Willis v. L. I. R. Cook v. Champ. T. Co. 1 Denio, 96, 97, 102; as R. Co. 82 Barb. 398; 8. C. 84 N. Y. 670; Rounds where plaintiff's property, on which were combusti, V. D. L. & W. R. CO. 84 N. Y. 129-138. Even if he ble materials, was destroyed by fire communicated was in that particular place against the orders of thereto by defendant's negligence. the defendant, known to him. Idem. Jacobs y. St. Paul & Chi. R. Co. 20 Am. Rep.; Williams v. N. Y. plaintif will sustain a nonsult. Toomey v: Turner,

What contributory negligence on the part of the & H. R. Co. referred to in Cosgrove v. Harlem, etc. 24 Hun, 599 : 8. C. 12 N. Y. Week Dig. 427 ; S. P. R. R. Co. 6 Duer, 434.

Miller v. N. Y. etc. R. R. Co. 13 Id. 145. And if he knew that his position was more dangerous in case of a smash-up, than a seat on an.

A plaintiff may recover, notwithstanding his own other part of the car. Carroll v. N. Y. & N. H. R. negligence exposed him to the risk of Injury, if the Co. 1 Duer, 571. Adirmed in Court of Appeals, 6 defendant, after he is aware of the plaintin's dan. Duer, 416, 416.

ger, could have averted the injury. The fact that The essential element of negligence in such a

one has placed himself in a place of danger can case is a disregard of some risk which the deceased never be an excuse for another carelessly or reckought to anticipato. Terry v. Jewett, 17 n, lessly injuring him. Healy v. Dry-Dock, etc. R. R. 400 per J. C. Smith, J.; amirmed, 78 N. Y. 846; Co. 11 N. Y. Week. Dig. 441; 46 N. Y. Supr. 14 J. Gry v. Bell, 6 Am. Rep. 871

& 8. 478.

the accident was not occasioned by the driver's witness to testify. But the statements were not fault.

even made in reference to his conduct in the 2. It being admitted that the carriage was particular transaction, but in relation to what upset and the plaintiff's wife injured, it was he had done on former occasions; and, when, incumbent on the defendant to prove that the for aught that appears, he was not in the serv. driver was a person of competent skill, of good ice of the defendant. If the fact had been habits, and in every respect qualified and suit. established by competent testimony that this ably prepared for the business in which he was driver had upset fifty coaches, it would have engaged: and that he acted on this occasion been pregnar evidence before the jury of his with reasonable skill, and with the utmost pru- want of skill as a driver; and if his statement dence and caution; and if the disaster in questo Mr. Ludlow was admissible evidence to tion was occasioned by the least negligence, establish this fact, it tended strongly to prove or want of skill, or prudence on his part, then his want of competent skill. The position asthe defendant is liable in this action.

sumed by the appellant is that the declaration 3. If the jury find there was no want of of the driver to the witness, "that he had up: proper skill, or care, or caution on the part of set fifty coaches,” was not admissible and the driver, and that the stage was upset by the competent evidence for any purpose whatever. act of the plaintiff or his wife, in rashly and *The defendant's first prayer is based (*187 improperly springing from it, then the defend on the hypothesis that the jury would find, ant is not liable to this action; but if the want from the evidence, that the immediate and of proper skill or care of the driver placed the proximate cause of the overturning of the coach passengers in a state of peril, and they had at was the act of the plaintiff or his wife, or both, 186*] that time a reasonable ground for *sup- in leaping from or leaving the coach; and that, posing that the stage would upset, or that the at the time of leaping from or leaving said driver was incapable of managing his horses, the coach, there did not exist any certain peril, nor plaintiff is entitled to recover; although the any immediate danger, nor any reasonable apjury may believe, from the position in which prehension of impending danger by remaining the stage was placed by the negligence of the in the coach. driver, the attempt of the plaintiff or his wife This prayer was framed with reference to to escape may have increased the peril, or even the instruction of Lord Ellenborough, in Jones caused the stage to upset; and although they v. Boyce, 1 Starkie's Rep. 393; 2 English Commay also find that the plaintiff and his wife mon Law Rep. 482, and the language of the would probably have sustained little or no prayer was adopted from the language of his in jury if they had remained in the stage. lordship. It concedes that the defendant is

4. If the jury shall find that the driver was liable for the negligence of the driver. It . person of competent skill, and in every re- further concedes that even if the proximate spect qualified and suitably prepared for the cause of the injury was the act of the plaintiff business in which he was engaged, and that or his wife, or both, the defendant was still the accident was occasioned by no fault or liable, if there was want of skill, or if there want of skill or care on his part, or that of the was negligence or misconduct on the part of defendant or his agents, but by physical disa- the driver; provided that such want of skill, or bility, arising from extreme and unusual cold, negligence, or misconduct of the driver, prowhich rendered him incapable for the time to duced a state of case which placed the plaindo his duty, then the defendant is not liable in tiff and his wife, or either of them, in a situathis action.

tion of certain peril or immediate danger, or The defendant excepted to the refusal of the as was sufficient to create a reasonable appreprayers offered by him, and to the instructions hension of impending danger. But the prayer given by the court to the jury.

assumes the law to be that, in case the act The case was submitted to the court in of the party injured was the proximate cause printed and written arguments by Mr. Schley of the injury, the defendant is not liable merefor the plaintiff in error, and by Mr. Johnson ly because there was default on the part of his for the defendant.

driver, unless that default conduced to produce Mr. Schley, for the plaintiff, submitted to the the injury; that is, unless there was a natural court the following points and authorities : and reasonable connection between the default

When Mr. Ludlow was under examination, of the driver, as the cause, and the injury, as he stated that, shortly after the accident hap- the consequence; and that natural and reasonpened, he went up to the driver and had some able connection is assumed to be such as Lord conversation with him. The defendant, by his Ellenborough has defined in the case above counsel, objected to the admission in evidence cited. In Story's Commentaries on the Law of the statements of the driver: the court of Bailments (377) the learned commentator, overruled the objection, and the defendant citing the case from Starkie, says: "And tho excepted. The plaintiff then proved, by Mr. liability of the coach proprietors will be the Ludlow, "that he asked the driver how the ac- same, although the injury to the passenger is cident happened, when he stated that he had caused by his own act, as by leaping from the upset fifty coaches, and he did not believe the coach, if there is real danger, and it arises from woman was as much hurt as she said she was." the careless conduct of the driver." This conversation, it will be observed, took The 2d, 3d, 4th, and 5th prayers were all place after the accident had occurred. If it framed with reference to the language of the can be considered as the driver's account of instruction, in the case of Jones v. Boyce. It the manner in which the accident occurred, it is will be observed that the several prayers were still but this representation of a past occur not intended to deny, in toto, the plaintiff's rence, and he ought to have been called as a right of action; but were limited to the par.

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