take of their own goods, or, in other words, of very exact diligence.

It is well settled that those intrusted with the management of a railroad are held to the strictest vigilance. They are bound to exercise the utmost care, skill and diligence in relation to their passengers and the property committed to their charge. They are responsible for every injury caused by any species of negligence, however slight, which they or their agents may be guilty of. But they are only responsible for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness or folly. One who inflicts a wound upon his own body, must abide the suffering and the loss, whether he does it in or out of the cars, and there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to his own safety, even though the agents in charge of the train are also remiss in their duty. Such is the doctrine laid down by Ch. J. Black, in the Railroad Company v. Aspell, 11 Harris 147.

This is not only the last case reported on this subject, but it is a summary and comprehensive view of the law applicable to this case.

The principles to be extracted from all the cases, and which you will apply to the evidence in this case, are the following:

1. If the death of Judith Conroy was caused by her own rashness or folly, or by a want of proper care, caution and prudence on her part, the plaintiff cannot recover, and the defendants will be entitled to your verdict.

2. If the negligence or carelessness of Mrs. Conroy, concurring with that of the defendants, caused her death, the plaintiff cannot

recover.

3. If the defendants used all the care, skill, caution and prudence that human foresight and sagacity could suggest, they are not responsible, and the plaintiff cannot recover, although there

may have been no negligence whatever on the part of the deceased. It would then be one of those unfortunate, but unavoidable accidents for which no one can be held accountable.

4. If the deceased was not guilty of any negligence, and if her death was caused by any want of care, caution or prudence on the part of the defendants, their officers or servants, then the plaintiff can recover.

Coakly v. N. Penna. R. R. Co., 6 Amer. Law Reg. 355; Obrien v. R. R. Co., Id. 361; Penna. R. R. Co. v. Zebe et ux., 9 Casey 318; P. & C. R. R. v. M'Clurg, 6 P. F. Smith 294.

In the Supreme Court of Pennsylvania.

MCGREW v. LIPPINCOTT.

(Vol. VI., p. 67, 1858.)

1. The judges of the Common Pleas Courts are not required to instruct the jury in the language of the Supreme Court, nor even of the Legislature. If they have the appropriate legal principle rightly in their minds, they may present it much more intelligibly to other minds by following their own habitual modes of expression.

2. If counsel desire to have more specific instructions on some points than the Court gave, it is their duty to pray for them.

3. It is not usual to reverse a judgment for merely omitting to give instructions, not called for, even though they might have been very proper. In such case the remedy for a verdict founded on inadequate testimony is under a motion for a new trial.

ERROR to the Common Pleas of Westmoreland County. The facts were these: In 1849, Jacob McGrew was appointed guardian of Findley McGrew, Joseph Lippincott being his surety. In 1852, Jacob was at the point of death, and Lippincott, being fearful that he might suffer as his surety, determined to see him, to have some arrangement made for indemnifying himself. James McGrew, Jacob's brother, met Lippincott, and dissuaded him from his purpose, saying that Jacob's mind was much harrassed, that he ought not to be disturbed; that he (Lippincott) might rest easy; that he himself would stand between him and danger, and if there would be any loss it should

come out of his own pocket. Jacob at that time owned a wagon and team of horses, valued at $350. He died soon after, his estate insolvent. Lippincott became liable, as his surety on the guardianship bond, to the amount of $200, and paid the same; and then brought this action of assumpsit against James McGrew.

BUFFINGTON, P. J., charged the jury as follows:

The questions to be decided are 1st, was there any agreement? and 2d, if you find there was such agreement as alleged, was that a binding contract on the defendant?

On behalf of the defendant, it is contended that if there was an agreement to save him harmless, it was without consideration. If so, it was void, and there could be no recovery. A good and legal consideration may be either a benefit to the defendant, or a prejudice to the plaintiff. If the jury believe that the plaintiff was going to Jacob to procure some indemnity, that Jacob had property that he would have given for that purpose, that plaintiff abstained from going because of the agreement of the defendant to save him harmless, and that he has been compelled to pay this money which he might have secured, the Court are of the opinion that there is sufficient consideration to sustain the agreement and make it a valid contract.

What the contract was, is for the jury: and this being a contract to charge one man with the debt or default of another, it must be made out by clear and satisfactory evidence before the jury is justifiable in enforcing it. But if they are convinced there was such contract, they may find for plaintiff. If not convinced, however, their verdict should be for defendant.

The jury found for plaintiff $216 83.

The following errors were assigned to the charge of the Court: 1st. The Court erred in saying: "A good and legal consideration may be either a benefit to the defendant, or a prejudice to the plaintiff. If the jury believe that the plaintiff was going to Jacob to procure some indemnity, that Jacob had property he would have given for that purpose, that the plaintiff abstained from going because of the agreement with the defendant to save him harmless, and that he has been compelled to pay this money which he might have secured, the Court are of opinion that there

is sufficient consideration to sustain the agreement and make a valid contract."

1. The radical legal error here is, the conditional affirmation that the plaintiff was injured by the interference of the defendant, which induced him to refrain from calling on Jacob McGrew, and from attempting to indemnify himself by trying to procure property from Jacob.

The proposition of the Court is this: The abandonment of the contemplated visit of Lippincott at the suggestion of James McGrew, and the consequent assumed or supposed loss, is a sufficient consideration to support the alleged contract of the parties. The other errors of this part of the charge are in relation to facts, and will be specified hereafter.

2d. The Court erred in saying: "This being a contract to charge one man with the debt or default of another, it must be made out by clear and satisfactory evidence, before the jury is justifiable in enforcing it."

1. This is but a partial and imperfect statement of the rule of law. "Clear and satisfactory," are terms of general import, conveying different impressions to different minds, and hence the Court should have modified and enlarged these terms, and pointed out in what manner and to what extent the testimony should be clear and satisfactory.

2. The Court should have added, that the evidence should have been "very clear," "explicit," "free from doubt," so that there could not be "any suspicion of mistake or misapprehension."

3d. The Court erred in the mode in which it referred to the alleged facts, in the extract from the charge given in the first assignment.

1. In assuming that there actually was an agreement between Lippincott and McGrew, by which McGrew was to indemnify Lippincott to the entire extent of what might be his loss. These are the terms of the Court: "If the jury believes . . . that the plaintiff abstained from going because of the agreement with the defendant to save him harmless."

2. In intimating that the plaintiff was going "to procure" indemnity, when, in fact, the object of his intended visit, was not

positively to receive indemnity, but to ascertain whether any could be had. It was designed, primarily, as a visit of experi

ment.

3. In intimating that "Jacob had property which he would have given Lippincott;" an intimation entirely without proof. 4. In submitting the questions referred to, to the jury, in the absence of any evidence to sustain them.

4th. The Court not only erred as specified in the preceding assignment, but, also, in not noticing the fact that the plaintiff had proven the contract between him and James McGrew in two distinct forms. First, by Matthew McMillen, that it provided for an indemnity, for the entire amount of what should be Lippincott's loss; and second, by James R. Tarr, that it only included the amount that the guardian owed James McGrew, for the support of Findley, the ward. By neglecting to refer to these facts, the Court presented the case of the defendant in an unfavorable and illegal manner to the jury.

5th. The Court, in view of the character of the plaintiff's proof, its vagueness and its contradictions, should have instructed the jury that the plaintiff could not recover.

The case was conducted for Lippincott, plaintiff below, and defendant in error, by Cowan and Clarke and Markle, and for McGrew by Cook and Foster.

The opinion of the Court was delivered by

LOWRIE, J.-The refinement of criticism exercised in analyzing this charge, and assigning errors upon it, seems to assume that the law imposes upon judges, in giving their instructions to juries, a degree of accuracy, and specialty of thought and language, that is totally impracticable in the administration of justice. The judges of the Common Pleas are not required to instruct the jury in the language of this Court, nor even of the legislature. If they have the appropriate legal principle right in their minds, they may present it much more intelligibly to other minds by following their own habitual modes of expression. There can be nothing gained by requiring special instructions in any given form of words, for we can have no assurance that all will under