Ormond v. Wisconsin Power & Light Co. , 194 Wis. 305 ( 1927 )

Owen, J.

Although the verdict is framed in general terms, the only want of ordinary care on the part of the defendant which the evidence tends to support is its failure to make a more rigid inspection of the tires before permitting the bus to start on the trip, and we regard the sole question to be considered to be whether the jury was warranted in so finding.

The duty which a common carrier owes to a passenger is subject to various statements in the books imposing different degrees of care upon the common carrier, all of which require, however, a very high degree of care. (See the subject of Carriers in Century Digest, § 1087.) The rule which prevails in this state was deliberately framed and stated in Ferguson v. Truax, 136 Wis. 637, 643, 118 N. W. 251, as follows:

“For the safety of their passengers, common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of their business.”

This rule has been strictly adhered to in Merton v. Mich. Cent. R. Co, 150 Wis. 540, 137 N. W. 767; Anderson v. Yellow Cab Co. 179 Wis. 300, 191 N. W. 748; Carson v. Green Cab Co. 186 Wis. 566, 203 N. W. 394. In Ferguson v. Truax, 136 Wis. 637, at p. 643 (118 N. W. 251), commenting on the rule, the court said:

“Expressing the elements of this -rule in other terms, it imposes on carriers of passengers the highest,degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct of such business under the same or similar circumstances.”

Whether the conduct of the common carrier in a given particular accords with its legal duty in the premises is to be tested by comparing its conduct with that generally exercised by those engaged in the sáme business under the same or similar circumstances. It is to be tested by the same rules which are applied to ordinary care. In fact, the care which the rule prevailing here imposes upon common carriers falls within the class of ordinary care, and their failure to observe that care amounts to ordinary negligence under our classification of negligence. To be true, the care exacted of the common carrier is a high degree of care. To constitute ordinary care it must be the “highest degree of care reasonably to be expected from human vigilance and foresight.” It is but the application of the doctrine that “the standard of duty should be according to the consequences that may ensue from carelessness.” Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, at p. 296. The carrier is not an insurer of the safety of its passengers. It is liable .to them only for ordinary negligence,' which means simply a want of ordinary care, as that term is measured with reference to the duty of common carriers. Speaking of the duty owing from master to servant, in Innes v. Milwaukee, 96 Wis. 170, 174, 70 N. W. 1064, the court said:

“When a person is charged with such negligence, and it is shown that his conduct came up to the standard of persons generally, in the same business, under the same circumstances, neither jury nor court has a right to say that such way is a negligent way from any legal standpoint. The master cannot be held responsible for not adopting the best-way. It is sufficient if he takes the ordinary way. This rule is universal in its application to the relation of master and-servant, unless such ordinary way be obviously dangerous.” (Citing many authorities.)

And in Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 335, 128 N. W. 982, the court said:

“The proper standard of defendant’s duty was the care which the great mass of mankind ordinarily exercise under the same or similar circumstances. Now and then it appears that the customary way of doing things is utterly disregardful of personal safety, where it is said, the mere fact that the way adopted was the customary way, is not a defense against the claim of liability. They are very extreme cases, quite different from one where men of judgment and experience commonly for a long time have been accustomed to arrange premises and instrumentalities for an ordinary business enterprise like a railroad, in a particular way, found by experience to be reasonably safe and convenient.”

It is difficult to see why that rule does not apply to the instant case. Even though the relations here existing were that of carrier and passenger rather than that of master and servant, nevertheless we are dealing with a question of negligence, and the conduct charged as negligent must be compared with that ordinarily exercised by the great mass of mankind under the same or similar circumstances. This rule was specifically applied to the duty of a common carrier in Merton v. Mich. Cent. R. Co. 150 Wis. 540, 137 N. W. 767, In Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537, at p. 546, speaking of the duty which a railroad company owed to a passenger, the court said:

“If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and' run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them.”

This language was cited with approval in Rathbone v. Detroit U. Ry. 187 Mich. 586, at p. 600 (154 N. W. 143). Such is said to be the tendency of modern English decisions, in 3 Thompson, Comm, on Neg. § 2748. We see no escape from the conclusion that the customary inspection of tires made generally by bus companies throughout the country constituted the standard of care required of the defendant, unless it can be said that such an inspection “is utterly disregardful of personal safety.” This we cannot say. There are millions of motor vehicles in use throughout the country. Blowouts are not uncommon. Serious consequences are exceedingly rare. The ordinary owner or operator of a motor vehicle does not commonly have an inspection of tires. We do not know that the consequence resulting from a blowout of a bus tire is more serious than that of an ordinary tire vehicle. At any rate, common knowledge does not affirmatively establish that fact. Furthermore, the inspection here made constituted a degree of care greater than that commonly exercised by the ordinary owner of motor vehicles.

The conclusion here reached in no manner conflicts with Dibbert v. Metropolitan Inv. Co. 158 Wis. 69, 147 N. W. 3. In that case settled law imposed certain duties upon the owner of the elevator. The decisions are in conflict with reference to the particular duty of the carrier there under consideration. The duty devolving upon the common carrier, however, was one prescribed by law, no matter which line of decisions was followed. It was like the duty imposed upon the traveler upon the highway to look before crossing a railroad track. That is a duty which the law imposes upon him, and it is a duty which he must perform no matter what the conduct of mankind generally may be under the same or similar circumstances.

We conclude that the jury had no evidence before it permitting it to find that the care here exercised by the defendant, meeting as it did “the standard of persons generally, in the same business, under the same circumstances,” constituted a want of ordinary care! It follows, therefore, that the complaint of the plaintiff should be dismissed.

By the Court.- — -Judgment reversed, and cause remanded with instructions to dismiss the plaintiff’s complaint.