Page:Federal Reporter, 1st Series, Volume 10.djvu/725

 GBAVELLE V. MINNEAPOLIS & ST. LOUIS BY. CO. 713 �is your duty to consider it impartially and caref ully, and to reach your conclusion upon the questions of fact and find a verdict, in the sight of the law as I shall now endeavor to explain it. �As I have already said, the controlling question is a question of neg- ligence. But I should have said to you, however, that auother defence of the defendant is that the plaintiii himself was guilty of negligence which contributed to his injury. Negligence is the failure to exercise that degree of caution which a man of ordinary intelligence would exercise under the circumstances of aparticular case. The degree of care which is required of a man is measured by the circumstances by which he is surrounded, by the nature of the duties in the perform- ance of which he is engaged. What would be ordinary care and pru- dence under one set of circumstances, might be negligence under another set of circumstances. As, for example, if a person is travel- ing along the public highway, with his vehiele, at an ordinary rate of speed, and no unusual circumstances to excite caution or induce care, in that case a very slight degree of care may be considered sufficient ; while, on the other hand, if he is engaged in eoupling cars upon a railroad, where there are a great number of cars and engines, the very nature of his employment requires greater care and attention than would be required under other circumstances. �Your first inquiry, then, may be as to whether the plaintiii was guilty of any negligence or any want of ordinary care and prudence on the occasion of the accident. If you find that he was guilty of negligence which contributed to his injury, the law is that he cannot reeover, and you will not be required to go any further with your in- vestigations. But if you find him not guilty of contributory negli- gence you will then proceed to consider the other points. �You must find that the accident and injury were the resuit, not of the negligence of a fellow-servant engaged in the same common serv- ice with the plaintiff. And it is necessary for me to explain to you what is meant by the rule which I have stated. A fellow-servant or 00 servant, within the meaning of this rule, is a person engaged in the same common service under the same general control of the party injured. I believe it is not contended in this case that there is any question but that the engineer upon the engine that was attached to the tender and the plaintiflf were fellow-servants ; so that the ques- tion, if you come to it, will be a question as to whether the accident was caused by the neghgenee of the assistant yard-master ; for it is «laimed that he was not a fellow-servant within the meaning of the rule which I have given you. But I will come to that presently. ��� �