Whittacker v. Brooklyn, Queens County & Suburban Railroad

Majority

p. 767

Julius Whittacker, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.

Second Department,

January 26, 1906.

Headnote

Negligence — injury to eye by splinter from broken electric light bulb — charge.

The plaintiff, a passenger in defendant’s car, was struck in the eye by a splinter from an electric light bulb dropped by the defendant’s employee. The court charged that the defendant’s servant “was bound to use a high degree of care.”

Held, that though there is only one rule of care, i. e., ordinary care,.to be measured by the particular circumstances, such charge is not reversible error when the case shows that it did'no harm.

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1905, upon the verdict of a jury for $325, and also from an order entered in said clerk’s office on the 21st day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

The plaintiff being a passenger in one of the defendant’s electrie street cars, an employee of the defendant while removing an electric light bulb from its fastenings negligently dropped it on a window sill, breaking it, and a piece hit the plaintiff in the eye.

p. 768

I. R.-Oeland [George D. Yeomans with him on the brief], for the appellant.

Frederick 8, Martyn, for- the respondent.

The learned trial judge charged the jury that in unfastening and handling.the glass electric light bulb the defendant’s servant “ was bound to use a high degree of care,” and this' was excepted to. There is indeed only one rule of card,' i\ e., that of ordinary care, i. e., that care which persons of ordinary prudence would exercise in the. circumstances. Ordinary care in some circumstances is nothing short of the highest degree of care; while in other circumstances much less, and sometimes very little., care would ' satisfy the. requirement, of ordinary care. What ordinary care is varies with varying circumstances; the greater the danger the greater the care required,, but all the while the standard is ordinary care. ,

The courts of this State have determined as matter of law that the care required of carriers of passengers in respect of the construction and ■ care of their roadbeds,, machinery and cars is the highest degree of care which human prudence and foresight can suggest (Stierle v. Union Railway Co., 156 N. Y. 70 ), but it was quite unnecessary, for juries knew it all along, namely,, that ordinary care in such cases required just that.

But Our courts stopped there, and. have ñot-éssayed to establish a scale of care, as low, high, higher, highest. Juries know the . • varying'■scale of Care, according to the varying circumstances of each case, embraced in, the phrase ordinary care.

But I do not see that this judgment needs to be reversed because - the learned trial judge ruled as a matter of law to the jury that a “ high ” degree of care was required in this case; It were well, if he had omitted it, but it is entirely evident from reading the case ■ that it did' no harm. The whole subject is a harmless one. .

The judgment and order should'be affirmed.

Jenks and Bíoh, JJ., concurred; Hooker and Miller,-JJ., concurred in result. . : •

Judgment and order of the County Court of Kings county, unanimously affirmed, with costs. ■ .

Cases cited

Stierle v. Union Railway Co. 156 N. Y. 70 N.Y. 1898-05-10 p. 768