OVERMAN WHEEL CO. v. GRIFFIN, 67 F. 659

WEBB, District Judge. At the conclusion of all the evidence, the defendant in the court below moved that the jury should be instructed to return a verdict in his favor. To the denial of this motion he excepted, and the exceptions were allowed. This brings before ns all the evidence a,t the trial. Upon careful consideration of it, this court does not consider that the instruction asked would have been proper, or that its denial was erroneous.

The testimony of the witness Dubuque, admitted under objection, and excepted to, was competent for the purpose of showing to the jury what kind of a man the deceased was, in respect to health, vigor, and activity, and his bodily and mental peculiarities. It was also admissible to show his condition as to sobriety and apparent health and vigor immediately before Ms death. If, in the course of argument, the plaintiffs counsel made unwarrantable use of that evidence, the de fendant should have at once called the attention of the court to the objectionable argument, and requested its prohibition.

Sundry requests for instructions on points of la,w were presented to the presiding judge at the trial, as to which, in the refusals to give the instructions asked for, and, with one exception to be noticed hereafter, in the instructions given, no error is perceived.

Among those requests was one that the jury should be instructed that Griffin “was in law bound to exercise the due care and diligence of a prudent and careful man, and, unless he was as careful and diligent to avoid danger as men of ordinary prudence and care vjjould have been under the same or similar circumstances, he failed to exercise the care and diligence that the law required of him, and the plaintiff cannot recover.” Upon this part of the case the jury were instructed: “The plaintiff must show that the deceased was in the exercise of ordinary care and diligence at the time of the accident Now, it has been said, with respect to what constitutes ordinary care, that ordinary care is the care which reasonable men exercise under ordinary circumstances.” The requested instruction should have been given, in terms or in substance.

The conduct of prudent men, under similar circumstances, was the rule of standard of prudence required. Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 656, 6 Sup. Ct. 590. The instruction given substituted ordinary circumstances for similar circumstances, and was erroneous. “Ordinary circumstances” would not convey to the minds of the jurors the necessity of comparing the conduct of the deceased, under the circumstances shown by the evidence, with what would be the conduct of prudent men under the same or similar conditions.

We attach no importance to the expression “reasonable men” instead of “prudent men.” Having expressly requested definite and proper instruction, and finding something very different given, the defendant’s counsel might well understand that the change was no mere inadvertency of expression on the part of the court, and was therefore not required to call the attention of the court to the point at the time, and ask a correction, as otherwise, under the rule of the court, would have been his duty. Judgment is reversed. The verdict is set aside, and a new trial ordered.