Philadelphia, Wilmington & Baltimore Rail Road v. Kerr

Cochran, J., delivered the opinion of this Court. The opinion recently delivered by this Court in the case of The Balto. & Ohio R. R. Co. vs. Breinig, applies to, and practically decides, the'main point raised by these exceptions. The jury here, as in that case, were instructed by the Court that “ it was the duty of the defendant — now appellant — to exercise the' utmost care and dilligence which it was in their' power to- employ, considering the nature of the business in which they were engaged.” Had the case been one of injury to a passenger while in course of transportation by the' cars or boat of the appellant, this instruction would hav« ⁵³⁰ been appropriate, for in that class of cases the carrier, as was said in Balto. & Ohio R. R. Co. vs. Worthington, is bound to exercise the highest possible degree of care in all things affecting the safety of the passenger. This case, however, is ' a different one.

The effort is to recover damages resulting from a collision of the appellant’s steamboat with a canal boat belonging to the appellees, and by which the canal boat and cargo were totally lost. The canal boat had started from her berth and was on her way, under a light wind, down the Susquehanna river* and while holding her course, was struck by the steamer Maryland and sunk. The steamer belonged to the appellant and was used in transporting its engines, cars and passengers across the Susquehanna between Perry-ville and Havre'-de-Grace. Both boats were on a common highway, engaged in avocations wholly independent of each other, and without any relation of contract or trust Upon which any special duty from either to the other could be predicated* each was in the pursuit of a lawful business, and their relations were in all respects precisely like those disclosed in Bremig’s case.

IJndef these circumstances the appellant, as was said in the case referred to, was- not subject to a rule so rigorous as this instruction prescribes, but “Was required to exercise such reasonable care to avoid injury to the appellees as ordinary prudence would suggest,” that is, “such a degree of care and attention as experience has fo&’nd reasonable and necessary to prevent injury to others in like cases.” This is what is understood, by the terms “ordinary care and diligence.” It should not be